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Opinions of Mr. Justice Harlan at the conference in Paris of the Bering Sea Tribunal of Arbitration,… Harlan, John Marshall, 1833-1911 1893

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Array         BERING SEA TRIBUNAL OF ARBITRATION. 
OPINIONS 
OF 
MR. JUSTICE HARLAN 
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 Tribunal; 
THE RIGHT HONORABE 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. C.: 
GOVERNMENT PRINTING OFFICE. 
1893.  TABLE   OF   CONTENTS.
PART I.
THE JURISDICTION OF THE TRIBUNAL OP ARBITRATION.
Pas
1. Remarks in support of motion that Tribunal first determine its competency
or powers under the Treaty in respect to certain matters  5
2. Upon the question of the competency of the Tribunal to prescribe regula
tions covering the waters of the North Pacific Ocean, and which would
prohibit pelagic sealing entirely  8
PART II.
THE MERITS OP THE VARIOUS QUESTIONS SUBMITTED TO THE TRIBUNAL POR DETERMINATION.
Page.
, 1. General statement of the facts out of which the present contioversy between
the two nations arose, and the history of the negotiations resulting in the
Treaty of February 29, 1892 ,        36
2. Jurisdiction and rights asserted and exercised by Russia in Bering Sea, and
in respect to the seal fisheries in that sea,~prior to the cession of 1867 of
Alaska to the United States. Effect of the Treaty concluded in 1825
between Russia and Great Britain. The rights that passed to the United
States*by the Treaty of Cession of 1867        58
3. The right of property asserted by the United States in the Pribilof herd of
seals, and its right, whether as owner of the herd, or simply as owner of
tbe fur-seal industry on the Pribilof Islands, to protect the seals against
pelagic sealing      Ill
4. Concurrent regulations g      205
3  [After the arguments of counsel were concluded, the Tribunal of Arbitration went
into Conference to consider and determine the various matters submitted to it. All
the questions discussed were examined and,fully considered by the Arbitrators, and
in order that they might have an opportunity to put upon record in the form of
written opinions (if they so desired), the views expressed by them in conference, the
Tribunal, at the close of its deliberations, adopted and embodied in the Protocol of
August 14, 1893, the following resolution:
"The right is reserved to each Arbitrator to file with the secretary of this Tribunal,
at anytime after the adjournment, and before the first day of January, 1894, an
opinion or opinions upon the questions or»any of them submitted for determination,
and such opinion or opinions shall be regarded as an annex, to this Protocol."
The opinions below embody, substantially, what was said.orally in conference by
Mr. Justice Harlan upon the questions or matters alluded to in those opinions.]
PART I.
THE JURISDICTION OP THE TRIBUNAL OF ARBITRATION.
REMARKS IN SUPPORT  OF MOTION THAT THE TRIBUNAI, FIRST
BETERiriAE     ITS     COIIPETKHV     OR     POWERS,     UNDER     THE
TREATY,  IN RESPECT   TO  CERTAIN MATTERS.
(These remarks were made at the first meeting of the Arbitrators after counsel had
concluded their arguments.)
Mr. President: It has been suggested that the Arbitrators have a
full interchange of views touching the questions submitted by the
treaty for determination before any formal vote is taken. I entirely
approve this suggestion. We ought to have the benefit of such an interchange of views before placing upon record the conclusions we have
respectively reached. *
But, in my judgment, our first duty is to determine the competency
of this Tribunal, under the treaty, to deal with the various matters submitted to us by the two governments. I move, therefore, that the
Tribunal, before entering upon the consideration of these matters
upon their merits, 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
5 6
of 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, Bering Sea?
2. Is it competent, under the treaty, for this Tribunal to prescribe
regulations for a closed season covering such waters of both Bering
Sea and the North Pacific Ocean, outside the jurisdictional limits of the
two countries, as are habitually traversed by these fur seals, and
embracing the months during which fur seal may be taken in the open
seas, and during which dosed season all hunting of said 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, Bering Sea?
We find that counsel differ widely as to the powers of the Tribunal
touching the matters referred to in this motion.
The British G-overnment, in its Counter Case, and its counsel in their
printed argument, question the authority of the Tribunal, under the
treaty, to prescribe regulations applicable to the North Pacific Ocean,
even if it be found that regulations covering a part of that ocean are
absolutely essential to the proper protection and preservation of these
fur seals. And that Government and its learned counsel, at whose
head is the Attorney-General of Great Britain, while not expressly
disputing our power to establish a zone around the Pribilof Islands
within which pelagic sealing may be entirely prohibited at all seasons,
also deny that this Tribunal has any authority to prescribe regulations
which, by their necessary operation, will put an end altogether to the
business of hunting these seals in the open waters of Bering Sea outside of such zone or in the North Pacific Ocean.
The United States contends that the treaty requires at our hands
whatever regulations are necessary for the proper protection and preservation of these fur seals when found outside the jurisdictional limits
of the respective Governments, eitfier in Bering Sea or in the North
Pacific Ocean; that the power to prescribe such regulations is expressly
conferred; and that a refusal to exert such power, if its exercise be
found, under the evidence, necessary to the preservation of this race,
will be a refusal to execute the treaty, and, therefore, would defeat one
of its principal objects.
For one, I wish to know, before any interchange of views occurs
between Arbitrators in respect to the merits of the several matters sub- mitted, what the Tribunal deems its powers to be in regard to the
subjects we are here to consider. No Arbitrator should be put in such
position that it can be said that his views as to the competency of
the Tribunal were withheld until the majority had expressed opinions in
respect as well to the merits of the several questions of right arising
under the treaty, as to the necessity of regulations for the proper
protection and preservation of these seals.
If, however, it be the pleasure of Arbitrators to interchange views
upon the merits of all the questions before us, not involving the jurisdiction of the Tribunal, before any vote is taken, and if they order my
motion to lie upon the table for the present, I will acquiesce, if it be
understood that the first recorded vote shall be upon the points embodied in that motion.
Let me say in this connection that, the arguments having been concluded, I am prepared to indicate to any Arbitrator, whenever desired
by him, the conclusion reached by me touching any question before us,
whether relating to the merits of the case or to the competency of the
tribunal. Any such expression of views must, of course, be subject to
the possibility of their being changed or modified as the result of our
discussions in conference. If there are other questions of the jurisdiction of this Tribunal, besides those named by me in respect to which
any Arbitrator desires action by the Tribunal before coming to matters
that must be covered by the award,-1 will cooperate with him in
having such action, and this without reference to the nature of the
question. If any Arbitrator wishes to know, in advance, what.the
Tribunal thinks as to its competency or powers, I shaU deem it my duty,
so* far as my action can have effect, to put his mind at rest in respect
to that matter.
But, Mr. President, I can not stop here without running the risk of
being charged with concealing some things that are on my mind and
which Arbitrators are entitled to know before acting upon this motion.
My conviction is absolute that the treaty as interpreted by the British
Government and its counsel, in respect to the powers of the Tribunal,
is not the treaty I was asked to aid in executing. It is not the treaty
Great Britain would have asked the United States to sign. It is not
the treaty which the President of the United States would have approved. It is not the treaty which a single member of the Senate of
the United States would have sustained by his vote. So strong is my
conviction upon.this subject that if this Tribunal does not conceive 8
itself to have the power, under the treaty, to preserve this race of
useful animals so far as that end may be attained by regulations
applicable to the waters of both Bering Sea and the North Pacific Ocean
traversed by these seals; if it decides that it can not, for want of power,
make regulations of that character, I would deem myself wanting in
duty to both of the countries here represented, if I did not insist upon
an adjournment of this Conference for such reasonable time as would
give the respective Governments an opportunity to negotiate for a
supplementary convention investing the Tribunal with full power to
accomplish the object which, in every form of language, they have
expressed an earnest desire to accomplish, namely, the preservation of
this race of fur seals, without reference to considerations of profit or
advantage to any nation or to the individuals of any "nation.
I beg you to understand that I do not ask the Tribunal to say at this
time what regulations are necessary to secure the preservation of these
animals. If, upon examination of the evidence, it be found that regulations which in terms or by necessary operation prohibit or put an end
altogether to pelagic sealing both in Bering Sea and in the North Pacific
Ocean are not necessary for the proper protection and preservation of
this race of animals, both countries must, in good faith, abide by that
determination. I only ask that you declare in some form and in advance
whether you have the power under the treaty to prescribe regulations
of the character indicated by me, if the facts show them to be necessary
in order to save this race from extermination. I am unwilling to remain
silent upon this question of the competency of the Tribunal until I shall
have ascertained what your views are on the several matters submitted
for determination, and then bring up, or forbear to bring up, this question of jurisdiction, as I may agree or disagree with the views you
express on the merits.
2.
UPON THE QUESTION OF THE COMPETENCY OF THE TRIBUNAL
TO PRESCRIBE REGULATIONS COVERING THE WATER* OF THE
NORTH PACIFIC OCEAN, AND WHICH WOULD PROIII BIT PELAGIC
SEALING ENTIRELY.
(The Tribunal having on a subsequent day of its sessions voted to consider the
above motion, the remarks below were made in its support.)
This Tribunal has been constituted in order that there may be an
amicable settlement, by arbitration, of certain questions between the 9
Government of the United States of America and the Government of
Her Britannic Majesty, which are described, generally, in Article I of
the treaty of February 29,1892,* as questions " concerning the jurisdic-
* TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN CONCLUDED FEBRUARY 29, 1892.     J^|
The United States of America and Her Majesty the Queen of the United Kingdom
of Great Britain and Ireland, being desirous to provide for an amicable settlement of
the questions which have arisen between their respective Governments concerning
the jurisdictional rights of the United States in the wators of Bering's 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 the fur-seal in, or habitually resorting to, tbe said waters, have resolved to
submit to arbitration the questions involved, and to the end of concluding a convention for that purpose have appointed as their respective Plenipotentiaries:
The President of the United States of America, James G. Blaine, Secretary of State
of the United States; and
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir
Julian Panncefote, G. c. m. g., k. c. b., Her Majesty's Envoy Extraordinary and
Minister Plenipotentiary to the United States;
Who, after having communicated to-each other their respective full powers which
were found to be in due and proper form, have agreed to and concluded the following articles:
Article I. The questions which have arisen between the Government of the
United States- and the Government of Her Britannic Majesty 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 eithor country as regards the taking of fur-
seal in, or habitually resorting to, the said waters, shall be submitted to a tribunal
qf arbitration, to be composed of seven arbitrators, who shall be appointed in the
following manner, that is to say: Two shall be named by the President of the
United States; two shall be named by her Britannic Majesty; His Excellency the
President of the French Republic shall be jointly requested by the high contracting
parties to name one; His Majesty, the King of Italy, shall be so requested to name
one; and His Majesty, the King of Sweden and Norway, shall be requested to name
one. The seven arbitrators to be so named shall be jurists of distinguished reputation in their respective countries; and the selecting powers shall be reqiiested to
choose, if possible, jnrists who are acquainted with the English language.
In case of death, absence, or incapacity to serve of'any or either of the said
arbitrators, or in the event of any or either of the said arbitrators omitting or
declining or ceasing to act as such, the President of (he United States, or Her Britan-
nio Majesty, or His Excellency, the President of the French Republic, or His Majesty
the King of Italy, or His Majesty, the King of Sweden and Norway, as the case may
be, shall name, or shall be requested to name forthwith another person to act as 10
tional 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."
Article YI provides that, § in deciding the matters submitted to the
arbitrators," certain points, five in number, shall be sumbitted to them,
in order that their award may embrace a distinct decision upon each
point.   One of those points is embodied in the following question:
arbitrator in the place and stead of the arbitrator originally named by such head of
a State.
And in the event of a refusal or omission for two months after receipt of the joint
request from the High Contracting Parties of His Excellency, the President of the
French Republic, or His Majesty, the King of Italy, or His Majesty, the King of
Sweden and Norway, to name an arbitrator, either to fill the original appointment
or to fill a vacancy as above provided, then in such case the appointment shall be
made or the vacancy shall be filled in such manner as the High Contracting Parties
shall agree.
Art. II. The arbitrators shall meet at Paris within twenty days after the delivery
of the counter cases mentioned in Article iv, and shall proceed impartially and carefully to examine and decide the questions that have been or shall be laid before
them as herein provided on the part of the Govervments of the United States and Her
Britannic Majesty, respectively. All questions considered by the tribunal, including
the final decision, shall be determined by a majority of all the arbitrators.
Each of the High Contracting Parties shall also name one person to attend the tribunal as its agent to represent it generally in all matters connected with the arbitration.
Art. III. The printed case of each of tbe two parties, accompanied by the documents, the official correspondence, and other 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.
Art. 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 so presented by the other party.
If, however, in consequence of the distance of the place from which the evidence
to be presented is to be procured, either party shall, within thirty days after the
receipt by its agent of the case of the other party, give notice to the other party
that it requires additional time for the delivery of such counter case, documents,
correspondence, and evidence, such additional time so indicated, but not exceeding
sixty days beyond the three months in this article provided, shall be allowed.
If, in the case submitted to the arbitrators, either party shall have specified or
alluded to any report or document in its own exclusive possession, without annexing 11
" 5. Has the United States any right, and if so, what right, of protection or. property in the fur seals frequenting the islands of the United
States in Bering Sea when such seals are found outside the ordinary
three-mile limit?"
Article VII is in these words:
"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 Regulations for the proper protection and preservation of the
a copy, such party shall be bound, if the other party thinks proper to apply for it,
to furnish that party with a copy thereof; and either party may call upon the other,
through the arbitrators, to produce the originals or certified copies of any papers
adduced as evidence, giving in each instance notice thereof within thirty days after
delivery of the case; and the original or copy so requested shall be delivered as soon
as may be, and. within a period not exceeding forty days after receipt of notice.
Art. V. It shall be the duty of the agent of each party, within one month after
the expiration of the time limited for the delivery of the counter case on both sides,
to deliver in duplicate to each of the said arbitrators and to the agent of the other
party a printed argument showing the points and referring to the evidence upon
which his Government relies, and either party may also support the^same before the
arbitrators by oral argument of counsel; and the arbitrators may, if they desire
further elucidation with regard to any point, require a written or printed statement
or argument, or oral argument of counsel, upon it; but in such case the other party
shaSFbe entitled to reply, either orally or in writing, as the case may be.   .
Art. VI. In deciding tbe 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 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 these claims of jurisdiction as to the.seal fisheries recognized and
conceded by Great Britain?
3. Was the body of water now known as the Bering Sea included in the phrase
"Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia;
and what rights, if any, in the Bering Sea were held and exclusively exercised by
Eussia after said treaty ?
4. Did all the rights of Eussia as to jurisdiction, and as to the seal fisheries in
Bering Sea east of the water boundary, in the treaty between the United States
and Eussia of the 30th March, 1867, pass unimpaired to the United Stated under
that treaty?
5. Has the United States any right, and if so, what right of protection or property
in the fur-seals frequenting the islands of the United States in Bering Sea, when
such seals are found outside the ordinary 3-mile limit?
Art. VH. 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 12
fur seal in, or habitually resorting to, the Bering Sea, 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, 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 Regulations."
Article XlVdeclares that "the High Contracting Parties engage to
consider the result of the proceedings of the Tribunal of Arbitration,
concurrence of Great Britain is necessary to the establishment of regulations for the
proper protection and preservation of the fur-seal in, or habitually resorting to,
the Bering Sea, the arbitrators shtdl then determime what concurrent regulations
outside the jurisdictionallimits of the respective Governments are necessary, and
over what waters such regulations 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 regulations.
Art. VIII. The High Contracting Parties having found themselves unable to agree
upon a reference which shall include the question of the liability of each for the
injuries alleged to have been sustained by the other, or by its citizens, in connection
with the claims presented and urged by it; and being solicitous that this subordinate
question should not interrupt or longer delay the submission and determination of
the main questions, do agree that either party may submit to the arbitrators any
question of fact involved in said claims and ask for a finding thereon, the question of
the liability of either Government upon the facts found to be the subject of further
negotiation.
Art. IX. The High Contracting Parties have agreed to appoint two commissioners
on the part of each Government to make the joint investigation and report contemplated in the preceding Article vn, and to include the terms of the said agreement in the convention, to the end that the joint and several reports and recommendations of said commissioners may be in due form submitted to the arbitrators,
should the contingency therefor arise, the said agreement is accordingly herein
included as follows:
Each Government shall.appoint two commissioners to investigate conjointly with
the commissioners of the other Government all the facts having relation to seal life
in Bering Sea, and the measures necessary for its proper 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 -   13
as a full, perfect, and final settlement of all the questions referred to
the Arbitrators." ipf!
Throughout the whole of the negotiations resulting in the treaty,
the two Governments, by their accredited representatives, expressed
an earnest desire for the proper protection and preservation of the fur
seals which had their breeding grounds on Pribilof Islands in Bering
Sea, as well as their willingness to unite in the enforcement against
their respective citizens or subjects of all measures found necessary to
prevent the extermination of that race of animals. The record before
us furnishes conclusive evidence of these facts.
As early as November 12, 1887, Mr. Phelps, United. States Minister
severally, to each Government on any points upon which they may be unable to
agree.
These reports shall not be made public until they shall be submitted to the arbitrators, or it shall appear that the contingency of their being used by the arbitral
tors can not arise.
Art. X. Each Government shall pay the expenses of its members of the joint
commission in the investigation referred to in the preceding article.
Art. XI. The decisions of the tribunal shall, if possible, be made within three
months from the close of the argument on both sides.
It shall be made in writing and dated, and shall be signed by the arbitrators who
may assent to it.
The decision shall be in duplicate, one copy whereof shall be delivered to the agent
of the United States for his. Government, and the other copy shall be delivered to the
agent of Great Britain for his Government. *
Art. XII. Each Government shall pay its own agents and provide for the proper
remuneration of the counsel employed by it, and of the arbitrators appointed by
it, and for the expense of preparing and submitting its case to the tribunal. All
other expenses connected with the arbitration shall be defrayed by the two Government in equal moieties.
Art. XIII. The arbitrators shall keep an accurate record of their proceedings,
and may appoint and employ the necessary officers to assist them.
Art. XIV. The High Contracting Parties engaged to consider the result of the proceedings of the tribunal of arbitration, as a full, perfect, and final settlement of all
the questions referred to the arbitrators.
Art. XV. The present treaty shall be duly ratified by the President of the United
States of America, by and with the advice and consent of the Senate thereof, and
by Her Britannic Majesty; and the ratification shall be exchanged either at Washington or at London within six months from the date hereof, or earlier if possible.
In faith whereof we, the respective Plenipotentiaries, have signed ibis treaty and
have hereunto affixed our seals.
Done in duplicate at Washington the twenty-ninth day of February, one thousand
eight hundred and ninety-two. James G. Blaine. [seal.]
JtJlXAN PAUNCEJ'OTE.     [SEAL.] 14
at London, had an interview with the Marquis of Salisbury, British
Secretary of State for Foreign Affairs, in which the former proposed, on
the part of the Government of the United States, that by mutual
agreement of the two Governments a code of regulations be adopted
for the preservation of the seals in Bering Sea from destruction at improper times and by improper means by the citizens of either country—
such agreement to be entirely irrespective of any questions of conflicting jurisdiction in those waters. In this view his lordship promptly
acquiesced, and suggested that the American minister obtain from his
Government and submit a sketch of a system of regulations that would
be adequate for that purpose.    TJ. S. Case, App. Vol. J, p. 171.
The American Secretary of State, Mr. Bayard, being informed of
this interview, wrote to Mr. Phelps, under date of February 7, 1888,
suggesting that the only way to prevent the destruction of the seals
appeared to be for the United States, Great Britain, and other interested powers to take concerted action restraining their citizens or subjects from killing them with firearms, or other destructive weapons,
1 north of 50° of north latitude, and between 160° of longitude west and
L70° of longitude east from Greenwich, during the period intervening
between April 15 and November 1. To prevent the killing within a
marine belt of 40 or 50 miles from the islands during that period would
be ineffectual as a preservative measure. This would clearly be so during the approach of the seals to the islands. And after their arrival
there such a limit of protection would also be insufficient, since the
rapid progress of the seals through the water enables them to go great
distances from the islands in so short a time that it has been calculated
that an ordinary seal could go to the Aleutian Islands and back, in all
a distance of 360 or 400 miles, in less than two days."
In the same letter Mr. Bayard, referring to the threatened extermination of these seals by pelagic sealers, using firearms, nets, and other
destructive implements, said : | That the extermination of the fur seals
must soon take place unless they are protected from destruction in
Bering Sea is shown by the fate of the animal in other parts of the
world in the absence of concerted action among the nations interested
for its preservation. * * * It is manifestly for the interests of all
nations that so deplorable a thing should not be allowed to occur. As
has already been stated, on the Pribilof Islands this Government
strictly limits the number of seals that may be killed under its own
lease to an American company, and citizens of the United States have, 15
during the past year, been arrested and ten American vessels seized
for killing fur seals in Bering Sea. England, however, has an
especially great interest in this matter in addition to that which she
must feel in preventing the extermination of an animal which contributed so much to the gain and comfort of her people. Nearly all
undressed fur seal skins are sent to London, where they are dressed
and dyed for the market and where many of them are sold." U. 8.
Case, App. Vol. I, pp. 173,174.
This proposal was communicated to the Marquis of Salisbury and
became the subject of conference between the representatives of Great
Britain, the United States, and Russia. U. S. Case, App., Vol. I, p.
175. A counter proposition was made by the Marquis of Salisbury to
the effect that " with a view to meeting the Russian Government's wishes
respecting the waters surrounding Robben Island," the "whole of
Bering Sea; those portions of the Sea of Okhotsk, and of the Pacific
Ocean north of north latitude 47° should be included in the proposed
arrangement." He further said "that the period proposed by the
United States for a closed time—April 15 to November 1—might interfere with the trade longer than absolutely necessary for the protection
of the seals, and he suggested October 1, instead of a month later, as
the termination of the period of seal protection." XT. 8. Case, Vol. I,
App., p. 179.
The result of the above conference is thus stated in a letter from the
Marquis of Salisbury to the British Minister, at Washington: "At
this preliminary discussion it was decided, provisionally, in order to
furnish a basis for negotiation, and without definitely pledging our
Governments, that the space to be covered by the proposed convention
should be the sea between America and Russia north of the forty-
seventh degree of latitude; that the close time should extend from the
15th April to the 1st November; that during that time the slaughter
of all seals should be forbidden, and vessels engaged in it should be
liable to seizure by the cruisers of any of the three powers, and
' should be taken to the port of their own nationality for condemnation;
that the traffic in arms, alcohol, and powder should be prohibited in
all the islands of those seas; and that, as soon as the three powers
had concluded a convention, they should join in submitting it for the
assent of the other maritime powers of the northern seas. The United
States Charg6 d'Affaires was exceedingly earnest in pressing on us the
importance of dispatch, on account of the inconceivable slaughter that 16
had been and still was going on in these seas. He stated that, in
addition to the vast quantity brought to market, it was a common
practice for those engaged in the trade to shoot all seals they might
meet in the open sea, and that of these a great number sank so that
their skins could not be recovered." A similar letter was sent to Sir
R. Morier, British Ambassador at St. Petersburg. British Case, App.,
Vol. HI, p. 196;  TJ. 8. Case, App., Vol. I, p. 238.
The close time, thus provisionally decided upon, covered, as will be
seen, not only Bering Sea, but the entire North Pacific Ocean between
America and Russia, north of the forty-seventh degree of latitude.
Mr. Bayard, writing to Mr. White, the United States Charge"
d'Affaires at London, under date of May 1, 1888, said: "As you have
already been instructed, the Department does not object to the inclusion of the Sea of Okhotsk, or so much of it as may be necessary, in
the arrangement for the protection of the seals. Nor is it thought
absolutely necessary to insist on the extension of the close season till
the 1st of November. Only such a period is desired as may be requisite for the end in view. But in order that success may be assured in
the efforts of the various governments interested in the protection of
the seals, it seems advisable to take the 15th of October instead of the
1st as the date of the close season, although, as I am now advised, the
1st of November would be safer.    U. 8. Case, App., Vol. I, p. 180.
In the course of a friendly discussion, in November, 1889, between -
Mr. Blaine, the American Secretary of State, and Sir Julian Paunee-
fote, British Minister accredited to the United States, the former
(according to the report of that discussion made by the latter to the
Marquis of Salisbury) said: 1 The fur seal was a species most valuable
to mankind, and the Bering's Sea was its last stronghold. The
United States had bought the islands in that sea to which these creatures periodically resort to lay their young, and now Canadian fishermen step in and slaughter the seals on their passage to the islands,
without taking heed of the warnings given by Canadian officials themselves, that the result must inevitably be the extermination of the
species. This was an abuse, not only reprehensible in itself and
opposed to the interests of mankind, but an infraction of the rights ot
the United States. It inflicted, moreover, a serious injury on a neighboring and friendly State, by depriving it of the fruits of an industry
on which vast sums of money had been expended, and which had long
been pursued exclusively, and for the general benefit.   The case was
mmsm 17
so strong as to necessitate measures of self-defense for the vindication
of the rights of the United States and the protection of this valuable
fishery from destruction."
Mr. Blaine's tone during this discussion (Sir Julian Pauncefote also
reported) was mo-it friendly throughout, manifesting "a strong desire
to let all questions of legal right and international laAv disappear in an
agreement for a. close season, which he believes to be urgently called
for in the common interest." In reply to his observations, the British
Minister, among other things, said: " As regarded the question of fact,
namely, the danger of extermination of the fur-seal species, and the
necessity for a'close season,'there was, unfortunately, a-conflict of opinion. But if, upon a further and more complete examination of the evi
dence, Her Majesty's Government should come to the conclusion that a
'close season' is really necessary, and if an agreement should be arrived
at on the subject, all differences on questions of. legal rights would ipso
facto disappear."   British Case, App., Vol. Ill, pp. 350, 351.
In a subsequent letter, written in April, 1890 by Sir Julian Pauncefote
to Mr. Blaine, the former said: "It has been admitted, from the commencement, that the sole.object of the negotiation is the preservation
of the fur seal species for the benefit of mankind, and that no considerations of advantage to any particular nation, or of benefit to any private interest, should enter into the question." U. 8. Case, App., Vol.1,
p. 204, 205. Under date of June 3, 1890, Sir Julian, writing to Mr.
Blaine, observed: | Her Majesty's Governmenthavealwaysbeen willing,
without pledging themselves to details on the questions of area aud
date, to carry on negotiations, hoping thereby to come to some arrangement for such a close season as is necessary in order to preserve the
seal species from extinction, but the provisions of such an arrangement
would always require legislative sanation so that the measures thereby
determined may be enforced."    U. 8. Case, App., Vol. I, p. 220.
The Marquis of Salisbury, in a letter to Sir Julian Pauncefote of
June 20, 1890, inclosing, among other documents, a copy of the above
letter of April 10, 1888, addressed to the British representatives at
Washington and St. Petersburg: "Her Majesty's Government always
have been, and are still, anxious for the arrangement of a convention
which shall provide whatever close time in tohatever localities is necessary
for the preservation of the fur seal species." British Case, App., Vol. Ill,
p. 492; U. 8. Case, App., Vol. I, p. 237.
11492^-2 18
In his letter to Sir Julian Pauncefote of December 17,1890, Mr. Blaine
said:
"The United States, in protecting the seal fisheries, will not interfere with a single sail of commerce ou any sea of the globe.
"It will mean something tangible, in the President's opinion, if Great
Britain will consent to arbitrate the real questions which have been
under discussion between the two Governments for the last four years.
I shall endeavor to state what, in the judgment of the President, those
issues are:
"First. What exclusive jurisdiction in the sea now known as the
Bering Sea, and what exclusive rights in the seal fisheries, therein
did Russia assert and exercise prior and up to the time of the cession
of Alaska to the United States'?
"Second. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?
"Third. Was the body of water now known as the Bering Sea included in the phrase 'Pacific Ocean' as used in the treaty of 1825
between Great Britain and Russia; and what rights, if any, in the
Bering Sea were ■ given or conceded to Great Britain by the said
treaty?
"Fourth. Did not all the rights of Russia as to jurisdiction, and as to
the seal fisheries in Bering Sea east of the water boundary, in the
treaty between the United States and Russia of March 30, 1867, pass
unimpaired to the United States under that treaty'1?
"Fifth. What are now the rights of the United States as to the fur seal
fisheries in the waters of the Bering Sea outside of the ordinary territorial limits, whether such rights grow out of the cession by Russia of
any special rights or jurisdiction held by her ,in such fisheries or in the
waters of Bering Sea, or out of the ownership of the breeding islands
and the habits of the seal in resorting thither and rearing their young
thereon and going out from the islands for food, or out of any other fact
or incident connected with the relation of those seal fisheries to the
territorial possessions of the United States'?
"Sixth. If the determination of the foregoing questions shall leave
the subject in- such position that the concurrence of Great' Britain is
necessary in prescribing regulations for the killing of the fur seal in any
part of the waters of Bering Sea then it shall be further determined:
First, how.far, if at all, outside the ordinary territorial limits,it is necessary that the United States should exercise an exclusive jurisdiction in %
19
order to protect the seal for the time living upon the islands of the
United States and feeding therefrom. Second, whether a closed season
(during which the killing of seals in the waters of Bering Sea outside
the ordinary territorial limits shall be prohibited) is necessary to save
the seal-fishing industry, so valuable and important to mankind, from
deterioration or destruction. And if so, third, what months or parts of
months should be included in such season, and over what waters it
should extend."    tf. 8. Case, App., Vol. I, p. 285, 286.
The Marquis of Salisbury, in a letter of February 21, 1891, to Sir
Julian Pauucefote, expressed his assent to the first, second, and fourth
questions propounded by Mr. Blaine, and, after criticising the third
and fifth, proceeded: "The sixth question, which deals with the issues
that will arise in case the controversy should be decided in favor of
Great Britain, would perhaps more fitly form the subject of a separate
reference. Her Majesty's Government have no'objection to refer the
general question of a close time to arbitration, or to ascertain by that
means how farJJhe enactment of such a provision is necessary for the preservation of the seal species; but any such reference ought not to contain
words appearing to attribute special and abuormal rights in the matter
to the United States." British Case, App., Vol. Ill, pt. 2, p. 89 ; JJ. 8.
Case, App., Vol. 1, p. 294. -
Replying, under-date of April 14, 1891, Mr. Blaine observed that
although Lord Salisbury suggested a different mode of procedure from
that embodied in the sixth question, the President did not understand
him as objecting to the question. He restated all the questions, leaving the first, second, fourth, and sixth as originally proposed, and
reforming the third and fifth questions so as to read:
"Third. Was the body of water now -known as the Bering Sea
included in the phrase 'Pacific Ocean' as used in the treaty of 1825
■ between Great Britain and Russia,  and what rights, if any, in the
Bering Sea were held and exclusively exercised by Russia after said
Treaty?
"Fifth. Has the United States any right, and if so what right, of protection or property in the fur seals frequenting- the- islands of the
United States in Bering Sea when such seals are found outside the
ordinary three-mile limit?"    JJ. 8. Case, App., Vol. I, f. 295.
At this period of the negotiations a correspondence intervened with
respect to a modus vivendi between the two Governments, regulating
the taking of fur seals in Bering Sea during the sealing season of 20
1891. While that matter was being discussed Sir Julian Pauncefote,
under date of June 3,1891, notified the Government of the United
States that Her Majesty's Government were prepared to assent to the
first five questions proposed to be submitted to arbitration in Mr.
Blaine's note of April 14,1891. But he added: " Her Majesty's Government can not give their assent to the'sixth question formulated in that
note. In lieu thereof they propose the appointment of a commission to
consist of four experts, of whom two shall be nominated by each Government, aud a chairman who shall be nominated by the Arbitrators.
The Commission shall examine and report on the question which follows:
'For the purpose of preserving the fur seal race in Bering Sea fqom extermination, what international arrangements, if any, are necessary
between Great Britain and the United States and Russia or any other
power ?'"    TJ. 8. Case, App., Vol. I, p. 305.
Then followed some correspondence between Mr. Wharton, Acting.
Secretary of State for the United States, and Sir Julian Pauncefote. in
reference to the proposed modus vivendi for 189L. The terms of that
modus vivendi, as proposed by the United States, were communicated
to Lord Salisbury. They were returned by -the latter with certain
modifications and additions. The fifth paragraph of the agreement
proposed by Lord Salisbury was as follows: " (5) A commission of four
experts, two nominated by each Government, and a chairman nominated by the Arbitrators, if appointed, and if not, by the aforesaid
commission, shall examine and report on the following question: ' What
international arrangements, if any, between Great Britain and the
United States and Russia or any other power are necessary for the purpose of preserving the fur seal race in the Northern Pacific Ocean from
extermination?'"    TJ. S. Case, App., Vol. I, p. 311.
It thus appears that the British Government proposed, in connection with the modus vivendi for 1891, to ascertain, by means of experts
representing the two Governments, what international arrangements
were necessary "for the purpose of preserving the fur seal race in the
Northern Pacific Ocean from extermination."
President Harrison, however, insisted upon an agreement (such as
he had proposed) relating only to matters that were appropriate in a
modus vivendi:
Sir Julian Pauncefote wrote to Mr. Wharton, expressing the regret
of theMarquis of Salisbury that his proposed modifications had not been
accepted.   But he observed: "Nevertheless, in view of the urgency of
JJUIPL US
! JIJUJU 21
the case, his lordship is disposed to authorize me to sign the agreement in
the precise terms formulated in your note of June 9, provided the question of a joint commission be not left in doubt, and that your Government will give an assurance in some form that they will concur in a
reference to a joint commission to ascertain what permanent measures
are necessary for the preservation of the fur seal species in the Northern
Pacific Ocean."    TJ. 8. Case, App., Yol. I, p. 315.
To this letter Mr. Wharton replied on the same day, as follows:
"Sir: I have the honor to acknowledge the receipt of your note of
to-day's date, and in reply I am directed by the President to say that
the Government of the United States, recognizing the fact that full and
adequate measures for the prote3tio:i of seal life should embrace the
wliole of Bering Sea and portions of the North Pacific Ocean, will have
no hesitancy in agreeing, in connection with Her Majesty's Government,
to the appointment of a joint commission to ascertain what permanent
.measures are necessary for the preservation of the seal species in the
waters referred to, such an agreement to be signed simultaneously with
the convention for arbitration, and to be without prejudice to the
questions to be submitted to the arbitrators. A full reply to your note
of June 3 relating to the terms of arbitration will not be long delayed."
TJ. 8. Case, App., Vol. I, pp. 315,316.
Under date of June 13, 1891, Sir Julian Pauncefote wrote to Mr.
Wharton: " I lost no time in telegraphing to the Marquis of Salisbury
the contents of your note of June 11 conveying the assent of your Government to the appointment, in connection with Her Majesty's Government, of a joint commission for the purpose mentioned in my note
to you of the same date, such agreement to be signed simultaneously
with the convention for arbitration and to be without prejudice to the
questions to be submitted to the arbitrators. I informed his lordship
at the same time that, in handing me the note under reply, you had
assured me that the President was anxious that the commission should
be appointed in time to commence it's work this season, and that your
Government would, on that account, use their utmost efforts to expedite
the signature of the arbitration convention. I now have the honor to
inform you that I have this day received a telegraphic reply from Lord
Salisbury in which, while conveying to me authority to sign the proposed agreement for a modus vivendi contained in your note of June 9, '
his lordship desires me to place on record that it is signed by me on the
clear understanding that the joint commission will be appointed without 22
delay. On that understanding, therefore, I shall be prepared to attend
at the State Department for the purpose of signing the agreement at
such time as you may be good enough to appoint." TJ. 8. Case, Vol. I,
App., p. 316.
On the same day Mr. Wharton wrote to Sir Julian Pauncefote: " The
President directs me to say, in response to your note of this date, that
his assent to the proposition for a joint commission, as expressed in
my note of June 9, was given in the expectation that both Governments
would use every proper effort to adjust the remaining points of difference in the general correspondence relating to arbitration, and to agree
upon the definite terms of a submission and of the appointment of a joint
commission without unnecessary delay. He is glad that an agreement
has finally been reached for the pending season; and 1 beg to say that
if you will call at the Department at 10 o'clock Monday next, I will
be glad to put into writing and give formal attestation to the modus
vivendi which has been agreed upon." TJ. 8. Case, App., Vol. I,
p. 316.
Under the assurance thus exacted by and given to the British Government the modus vivendi for 1891 was signed and the negotiations.
in respect to the matters to be submitted to arbitration were resumed.
Mr. Wharton, under date of June -25, 1891, addressed a communication to Sir Julian Pauncefote, in which, after referring to the agreement of the parties in respect to the first five questions and to the
objection that Lord Salisbury had made to the sixth question, as formulated by Mr. Blaine, said:
"I am now directed by the President to submit the following, which
he thinks avoids the objection urged by Lord Salisbury:
(6) 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 concurrenceof Great Britain is necessary to the establishment of regulations for the proper protection and preservation of
the fur seal in, or habitually resorting to, the Bering Sea, the arbi-
trators shall then determine what concurrent regulations outside the
jurisdictional limits of the respective Governments are necessary, and
over what waters such regulations should extend; and to aid them in
that determination the report of the Joint Commission to be appointed
by the respective Governments shall be laid before them, with such
other evidence as either Government may submit. The contracting
parties furthermore agree to cooperate in securing the adhesion of
other powers to such regulations." 23
In the same letter Mr. Wharton submitted a proposal for the
appointment of a Joint Commission by the two Governments, in accordance with the assurance given by the .President in the letter of Jane
11, l s!) l. from Mr. Wharton to Sir Julian Pauncefote. The terms of
this proposal were accepted by Lord Salisbury, and they appear in
Article IX of the treaty.    U. 8. Case, App., Vol. I, pp. 319,330.
The British Government accepted the sixth question as thus formulated, and that question constitutes Article VII of the treaty. I do
not find in any part of the diplomatic correspondence any criticism by
representatives of the British Government of that question as last
formulated.
Other evidence throws light upon the inquiry whether it was not
well understood by the British Government, after the signing of the
modus vivendi for 1891, if not before, that tbe inqairy as to what was
necessary to protect the fur seal race embraced both Bering Sea and
the North Pacific Ocean.
The commission issued June 15, 1891, by Her Majesty to the two
commissioners appointed to investigate seal life recited that they were
appointed "for the purpose of iuquiry into the conditions of seal life
and the precautions necessary for preventing the extermination of the
fur seal species in Bering Sea and other parts of the North Pacific
Ocean? Substantially the same recitals were made in the letter of
instructions issued to those commissioners by the Marquis of Salisbury
under date of June 24,1891. Subsequently, on the 15th January, 1892,
after the two Governments had agreed in writing upon the terms
embodied in and constituting Articles VI, VII, VI11, and IX of the
treaty, the Marquis of Salisbury issued another letter of instructions
to tbe British Commissioners, in which he said: "There are, however,
. a few iii >i 111 s to which Her Majesty's Government consider it desirable
that your special attention should be directed. Ybu will observe that
it is intended that the report of the Joint Commissioners shall embrace
recommendations as to all measures that should be adopted for the
preset-mi ion of seal life. • For this purpose it will be necessary to consider what Regulations may seem advisable, whether within the jurisdictional limit * of the United States and Canada, or outside those
limits. The Regulations which the Commissioners may recommend for
adoption within the respective jurisdictions of tbe two countries will,
of <■'>iil—c. be matter for the consideration of the respective Governments, while the regulations affecting waters outside the territorial 24
limits will have to be considered under clause 6 of the Arbitration
Agreement* [Art. 7 of the Treaty] in the event of a decision being given
by the Arbitrators against the claim of exclusive jurisdiction put forward on behalf of tbe United States. The Report is to be presented in
the first instance to the two Governments for their consideration, and
is subsequently to be laid by those Governments before the Arbitrators to assist them in determining the more restricted question as to
what, if any, Regulations are essential for the protection of the fur-
bearing seals outside the territorial jurisdiction of the two countries."
British Comm; Report, p. VII.
And the report of these commissioners, presented to the British
Government June 21, 1892, recites that they were appointed to inquire
"into the conditions of seal life and the precautions necessary for preventing the extermination of the fur seal species in Bering Sea and
other parts of the North Pacific Ocean." In the same report will be
found "a general view of the conclusions at which we [the British Commissioners] have arrived as to the condition of seal life in the North
Pacific Ocean, and as to the measures necessary for the preservation of
the fur seal indtistry." It may be stated, in addition, that the American Commissioners, Profs. Mendenhall and Merriam, were appointed
by the President "to proceed to the Pribilof Islands and to make certain investigations of the facts relative to seal life, with a View to ascertain what permanent measures are necessary for the preservation of
the fur seal in Bering Sea and the North Pacific Ocean." TJ. 8. Case,
311.
It thus appears from the diplomatic correspondence before us and
by the action of the two Governments—
1. That each Government, from the beginning to the end of the
negotiations resulting in the treaty, expressed not only *an earnest
desire that the fur seals be protected against extermination, but their
willingness to adopt such measures as were necessary to prevent the
destruction of these animals by its citizens or subjects, and that their
action should'be concurrent;
2. That the British Government, in the early period of these negotiations, agreed, provisionally and as a basis of negotiations, that a closed
time be established, from April 1 to November 1, during which the
slaughter of all seals be forbidden "in the sea between America and
Russia north of the forty-seventh degree of latitude;"
*This agreement was signed December 18, 1891.    The treaty was not signed until
February 29,1892. 25
3. That while the original proposition of Lord Salisbury was for a
joint commission to ascertain what international arrangements were
necessary " for the purpose of preserving the fur seal race in Bering
Sea from extermination," he subsequently modified that position, so
as to require that commission to ascertain what international arrangements were necessary "for the purpose of preserving the fur seal in the
Northern Pacific Ocean from extermination;"
4. That the British Government made a condition of its agreeing to
the proposed modus vivendi for L891, relating to Bering Sea, that
the President of the United States would-give an assurance in some
form that his Government would concur in a reference to a joint
commission "to ascertain what permanent measures are necessary for
the preservation of the fur seal species in the Northern Pacific Ocean,"
which assurance the President formally gave to the British Government, explicitly stating at the time that the Government of the
United States recognized "the fact that full and adequate measures
for the protection of seal life should embrace the whole of Bering Sea
and parts of the North Pacific Ocean; " and,
5. That the Government of the United States, having in view the
explicit declaration of Sir Julian Pauncefote, that "the sole obj.ect of
•the negotiation is the preservation of the fur seal species for the benefit of mankind," and the equally explicit declarations of Lord Salisbury
that her Majesty's Government was anxious for the arrangement of a
convention which "shall provide whatever close time in whatever
localities is necessary for the preservation of the fur seal species," and
ascertain, by arbitration, how far such a close time was necessary."for
the preservation of the fur seal species," and in order that the Arbitrators, if appointed, might consider measures for the protection of seal
life "throughout the whole of Bering Sea and portions of the Northern
Pacific Ocean," modified the sixth question, as originally, formulated,
and, instead of concurrent regulations "for the killing of the fur seals
in any part of the Bering Sea," outside of ordinary territorial limits,
as was first proposed,' provided for concurrent regulations (if the concurrence of Great Britain was found to be necessary) "for the proper
protection and preservation of the fur seal in, or habitually resorting
to, the Bering Sea."
It could not have escaped the attention of Lord Salisbury that the
effect of this modification of the sixth question was, beyond all question,
to enable this Tribunal to prescribe concurrent regulations to protect 26
and preserve all fur seals that habitually resorted to the islands of the
United States in Bering Sea, although they might not-remain during the
whole of each year in that sea. And the modification which the United
States made of the sixth question brought it into harmony with the-
fifth question, previously assented to, which involved an inquiry as to
whether the United States has "any right, and if so what right, of
l>rotection or property in the fur seal frequenting the islands of the
United States in Bering Sea when such seals are found outside the
ordinary three-mile limit?" These seals do not the less frequent those
islands, nor the less habitually resort to Bering Sea, because their
habit—as both Governments well knew—was, in the fall of every year,
at about the same time, to leave their breeding grounds at the Pribilof
Islands and go to the south of" the Aleutian Islands into the North
Pacific Ocean, from which ocean, each year and at the same time, they
returned to Bering Sea and to their established breeding grounds on
the islands of St. Paul and St. George.
But this is not all that is suggested by the modification made of the
sixth question. Recurring to the words of that question, in its original
form, it will be seen that one of the matters to be determined in the
event the concurrence of Great Britain was necessary in prescribing
regulations for the 1 killing" of fur seals in the waters of Bering Sea
-was whether a " closed season (during which the killing of fur-seals in
the waters of Bering Sea outside the ordinary territorial limits shall"
be prohibited) is necessary to save the seal-fishing industry, so valuable
and important to mankind, from deterioration or destruction." Here
we have the suggestion by the United States of a closed season, during which the taking of those-seals might be entirely prohibited. What
was the reply of the Marquis of Salisbury to this suggestion1? It was
that if the reference to arbitration did nof contain "words which
attribute special and abnormal rights to the United States," Her
Majesty's Government had "no objection to refer the general question of
a closed time to arbitration, or to ascertain by that means how far the
enactment of such a provision is necessary for the preservation of the
seal species." In other words, he did not object to a prohibition of
pelagic sealing during such closed time as was found to be necessary
for the preservation of the species. Aud it is a fact of much significance that while the sixth question referred to the concurrence of
Great Britain in prescribing regulations for the "killing" of the fur
seals in the waters of Bering Sea that question, as finally propounded, 27     .
omitted any words concerning regulations for the killing of seals in
any particular waters, but made the establishment of regulations by the
Arbitrators depend alone upon their determination in respect " to the
exclusive jurisdiction of the United States,?' and the necessity, resulting from that determination, of prescribing concurrent regulations, not
for the killing of fur seal, but "for the proper protection and preservation of the fur seal in, or habitually resorting to, the waters of
Bering Sea." This change of phraseology seems plainly to indicate
that the main purpose was to protect the seals by whatever means
were found to be necessary. And such must have been the desire;
for what object could there have been to regulate the taking of animals unless their existence was to be preserved?
Much stress has been laid upon isolated passages in communications
emanating from the State Department of the United States in which it
was said, in different forms of language, that the area of contention
between Great Britain and the United States related only to Bering Sea.
That statement was, in a certain sense, strictly accurate, for the dispute between the two Governments arose out of seizures made in that
sea. The legality of those seizures was the principal and vital
matter then in controversy. No seizures had then been made in the
North Pacific Ocean. And these statements, as to the area of contention, were made quite naturally in view of the fact, plainly disclosed by
the evidence, that Mr. Blaine, at one time and before the facts in" connection with seal life in Bering Sea were fully developed, was of
opinion that a zone of 20 marine leagues around the Pribilof Islands,
within which pelagic sealing should be prohibited, would be all that was
necessary in order to preserve these fur seals from extermination.
Some stress is also laid on the fact that the modus Vivendi for 1891 and
that for 1892 only related to Bering Sea; and, consequently, it is argued,
the two governments did not contemplate regulations applicable to the
Northern Pacific Ocean. Those who so argue forget that the modus
vivendi for 1891 was not signed until June 15,1891, by which time the
sealing vessels had all left for the sealing grounds, and a large number,
if not the greater part, of the fur seals had then passed from the North
Pacific Ocean into Bering Sea, and probably reached their breeding
grounds on the Pribilof Islands. In respect to the modus vivendi for
1892 it need only be said that Mr. Blaine endeavored to have it
extended to the North Pacific Ocean as well as to Bering Sea. He
was, no doubt, moved to this course by the fact that the two Govern- 28
t
ments, as early as December 18, 1891, had signed the text of the articles that were to go iuto the treaty, thereafter to be put in form, and
by one of which articles it was required that the regulations prescribed
by the arbitrators should look to the proper protection and preservation,
not simply of the fur seals in Bering Sea, but such as habitually
resorted to that sea.
He was also aware of the fact that as early as June 11, 1891, in
giving assurance that he would unite in the appointment of a Joint
Commission to ascertain what measures were necessary for the preservation of these fur seals, the President had distinctly informed the
British Minister that adequate measures to that end " should embrace
the whole of Bering Sea and portions of the North Pacific Ocean."
So, in his letter to Sir Julian Pauncefote of February 24, 1892, before
the treaty was signed, Mr. Blaine, referring to the proposed modus
vivendi for 1892, said: "If Her Majesty's Government would make her
efforts most effective, the sealing in the North Pacific Ocean should be
forbidden; for there the slaughter of the mothers heavy with young is
greatest, This would require a notice to the large number of sealers
who are preparing to go forth from British Columbia. The number
is said to be greater than ever before, and without any law to regulate
the killing of seals the destruction will be immense. All this suggests
the need of an effective modus. Holding an arbitration in regard to
the rightful mode of taking seals, while their destruction goes forward,
would be as if, while an arbitration to the title of land were in progress,
one party should remove all the timber." Mr. Blaine would not have
suggested that, pending the arbitration, the modus for 1892 be made
applicable both to Bering Sea and the North Pacific Ocean, if he had'
not supposed that the treaty which he was about formally, to conclude
on behalf of his Government, invested the Arbitrators with authority
to establish regulations applicable to all the waters traversed by these
seals in their migration routes from and to the Pribilof Islands. Two"
days after writing the letter last referred to, Mr. Blaine communicated
to Sir Juliau Pauncefote a copy of a telegram, that day received by hiin
from the United States consul at Victoria, in relation to the large
number of sealing vessels abouf to sail, and said: " I think from this
you will see that if we do not come to an understanding soon, there
will be no need of our agreement relating to seals in the North Pacific
or in the Bering Sea."    TJ. S. Case, Vol. 1, App. 353-4.
Sir Julian Pauncefote replying, under date of February 28, 1892, 29
to Mr. Blaine's note of February 24, referred to the statement of the
latter that "if Her Majesty's Government would make their efforts most
effective the sealing in the North Pacific Ocean should be forbidden."
If, as is now contended, the treaty then about to be signed, and
which was signed the next day, did not contemplate regulations for the
preservation of these fur seals while they were in the North Pacific
Ocean on their migration routes, it would have been easy for the British Minister to state that fact as a conclusive reason why the modus
vivendi for 1892 should only apply to Bering Sea. But no such reason was assigned for the refusal of the British Government to extend
the modus for that year to the North Pacific Ocean. The United States
Government was, unfortunately, in such condition at that time, in
respect to the arbitration, that it was compelled to accept a modus for
1892, applicable only to Bering Sea, or leave both that sea and the
North Pacific Ocean entirely open to pelagic sealing pending the arbitration.
Notwithstanding the distinct declaration made to the United States
by the British Government,-through its representative at Washington,
that "the sole object of the negotiation is the preservation of the fur
seal species for the benefit of niankind, and that no considerations of
advantage to any particular nation, or of benefit to any private interest, should enter into the question;" notwithstanding the explicit
assurance, given by the Marquis of Salisbury, that Her Majesty's Government "always have been, and are still, anxious for the arrangement
of a convention which shall provide whatever close time.in whatever
localities is necessary for the preservation of the fur seal species;" and,
notwithstanding the express injunction of the treaty that the Arbitrators,
upon finding the concurrence of Great Britain necessary to the establishment of regulations "for the proper protection and preservation of the
fur seal in, or habitually resorting to, the Bering Sea," shall " determine what concurrent regulations outside the jurisdictional limits of
the respective governments are necessary, and over what waters such
regulations should extend," the contention now by Her Majesty's Attorney General and his learned associates, is that the Tribunal is without
authority or jurisdiction, under the treaty, to prescribe regulations
applicable to the North Pacific Ocean, or any regulations which in
terms, or by their necessary operation, will result in the prohibition of
pelagic sealing, j It is contended that no such power can be exerted
by this Tribunal, even if the Arbitrators find from the evidence that 30
this race of animals can only be properly protected and preserved by
the absolute cessation, during the sealing season, of the hunting and
taking of these fur-seals in the waters both of Bering Sea and the
North Pacific Ocean traversed by them outside the jurisdictional limits
of the respective governments.
These two contentions are opposed by the United States, which
insists that, according to the evidence, the continuance of pelagic sealing in the open waters either of Bering Sea or of the Northern Pacific
Ocean, during the months of the year when th^se seals may be taken,
is absolutely certain to bring about the extermination of the race in
the course of a few years; and that under the power to determine the
rights of the citizens or subjects of the two governments, as regards
the taking of fur seal in, or habitually resorting to, Bering Sea, and
to prescribe concurrent regulations for the proper protection and preservation of such seals, and to declare over what waters such regulations should extend, it is competent for this Tribunal, and is its plain
duty, under the treaty, to prescribe regulations looking to a prohibition of pelagic sealing in any waters outside the jurisdictional limits
of the respective governments which are traversed by these seals in
their regular semiannual migration from and to the Pribilof Islands.
In harmony with the views upon regulations which the counsel for
Great Britain present, regulations have been submitted in behalf of
Her Britauuic Majesty, which, if approved,, would establish a zone.
of 20 miles around the Pribilof Islands within which no seal hunting shall be permitted at any time, nor rifles nor nets used by sealers,
and a closed season from the 15th September to the 1st July for
Bering Sea. Under such regulations pelagic sealing could be carried on without restraint, and with shotguns—confessedly a destructive, if not the most destructive mode of taking seals—not only in the
Sorth Pacific Ocean during the entire season, when seals can be taken
in that ocean, but in Bering Sea outside the proposed zone of 20 miles
around Pribilof Islands between July 1 and September 15.
The regulations suggested, in behalf of the United States, call for a
prohibition, during the entire year, of pelagic sealing in all the waters
of Bering Sea and of the North^ Pacific Ocean, outside the jurisdictional limits of the two Governments; north of the thirty-fifth degree
of north latitude, and east of the one hundred and eightieth meridian of longitude from Greenwich. These regulations, it is admitted, cover all the waters habitually traversed- by these fur seals in 31
their migration routes from and to the Pribilof Islands, and, if approved, would result in the prohibition practically of all hunting and
taking of these seals outside of territorial waters.
Much was said, in argument, as to the authority of the Tribunal to
prescribe regulations that would entirely prohibit pelagic sealing dur-
iug the months in each year when, by reason of the weather and the
condition of the seas, the hunting and taking of seals is impracticable.
The British counsel contended that it is beyond the power of the Arbitrators to prescribe regulations of that character. They argued that
■the Tribunal could not do indirectly what they could not do directly;
that prohibition, in terms, or by the necessary operation of regulations,
is not regulation; that the power to. regulate is not a power to prohibit.
This view, it may be observed, would place it beyond the power of this
Tribunal to prescribe such regulations as those decided upon, provisionally, in 18S8, between the diplomatic representatives of Great
Britain, the United States, and Russia, as a- basis of negotiation,
namely (to use the words of Lord Salisbury), " that the space to be
covered by the proposed convention should be the sea between America
and Russia, north of the forty-seventh degree of latitude; that tbe
close time should extend from the 15th April-to the 1st November;
that during that time the slaughter of all seals should be forbidden."
Wheu enforcing the view last stated, counsel asked ,us whether a
power given by the legislative department to a municipal corporation to
regulate, within its limits, the sale of ardent spirits would give to such
corporation authority to prohibit all sales of such spirits. Perhaps
not. But the case put does not meet the one before the Tribunal. A
legislative enactment of the kind referred to would show upon its face
ah intention to permit some sales of ardent spirits, under regulations
to be prescribed by the municipal corporation. It might well be that
a prohibition of all sales, by refusing all licenses to sell, would in the
case supposed, defeat the intention of the legislature. The rule of interpretation which has been invoked has no application to the present case.
If the treaty empowered this Tribunal to regulate pelagic sealing it
could, not unreasonably, be contended that the two Governments had
no purpose to prohibit altogether and under all circumstances, the
hunting of fur seals in the open seas, but only to authorize the regulation of that particular mode of taking these animals. The power given
is to prescribe such concurrent regulations "outside the jurisdictional
limits of the respective Governments" as may be necessary "for the 32
proper protection and preservation of the fur seal in, or habitually
resorting to, the Bering Sea," and to declare ""over what waters such
regulations should extend." The end to be accomplished is the proper
protection and preservation of the seals which habitually resort to that
sea.- Clearly a regulation which did not look to that end would fall
short of what the treaty contemplated. The plain duty, therefore,
of this Tribunal is to provide by concur, ent regulations for the preservation of these animals, if regulations of that character are necessary to accomplish such a result. And that duty can be performed by
means of regulations, which the two Governments are under solemn
obligation to respect aud to enforce against their respective citizens
or subjects.
I will add that if this Tribunal is without power to prescribe such
regulations as are necessary for the proper protection and preservation of this race of animals, then the result of its proceedings can
not possibly be, as both .countries intended it should be, "a full, perfect, aud final settlement of all the ^questions referred to the Arbitrators." It is mere play upon words to say, iu respect to this treaty, that
prohibition is not regulation, and that regulations or rules, calling in
express words or by their operation for a prohibition of pelagic sealing,
are beyond the powers given to this Tribunal, even if it appeared
that regulations of that character are absolutely necessary to j)revent
the exterininatioa of the far seals frequenting the Pribilof Islands. The
manifest result of this interpretation of the treaty is that while the Tribunal may prescribe regulations for the proper protection and preservation of these animals, the business of taking them in the high seas may
still be carried on even though it should involve the destruction of the
species. Can anyone believe that Great Britain would have asked the
United States to so stultify itself as to sign a treaty which, either in
words or by necessary implication, would have admitted of such a
result? Does anyone believe that a treaty rendering such a result possible would have been signed by any diplomatic representative of the
United States, or would have been approved by its President or by any
member of the Senate of the United States?
■ I express at this time no opinion as to what regulations are in
fact, and upon.a view of all the evidence, necessary to the proper protection and preservation of those fur seals. Nor do I ask the Tribunal
now to make.any declaration upon the weight of the evidence touching that or any other issue.   I am without knowledge of the views of 33
the Arbitrators upon the various questions of right or issues of fact
to be determined by them, and I ask no expression of opinion touching any of those questions in advance of their being reached in the
regular course of our proceedings in conference. But as indicating
the grounds upon which a declaration is asked at this time, as to the
powers of this Tribunal under the treaty, I may say that there is a
large amount of evidence in the record tending to show that the
hunting and taking of these fur seals, according to the methods now
practiced by pelagic sealers in the open waters either of the Bering
Sea or of the North Pacific Ocean, if continued, will certainly result at
no distant day in the complete extermination of the race. My purpose
is only to show that the power to prescribe regulations, which expressly
or by their practical operation will prohibit, pelagic sealing, wras
intended to be conferred and has been conferred by the treaty, with
respect to the waters both of Bering Sea and of the North Pacific
Ocean, traversed by these fur seals in their going from and returning
to the Pribilof Islands.
This Tribunal, I insist, has not been constituted for the purpose of
conserving the interests of the Canadian and American sealers who,
within the past ten years, have devised a mode of taking these fur
seals in the open seas, by means which, all concede, are destructive,
because not admitting of any discrimination as to sex, nor, still less, of
any discrimination between females that are heavy with young and
those that have not been impregnated. We are not here with authority
to make an award, simply by way of compromise, so that each side in
this dispute may have an opportunity to say that it has not been
entirely unsuccessful in its contentions before this Tribunal. Our
authority has a much wider field of operation. If the repeated avowals
of the two nations, who seek an amicable settlement of their differences
by means of arbitration, are not to be wholly discredited, we are here,
in their names, and by their joint authority, to protect and preserve
this race of animals from extermination if we find that concurrent
regulations to that end are necessary. A failure or refusal to exercise
the power, plainly given, to prescribe such regulations as are necessary to prevent the extermination of this race of useful animals, will, in
my judgment, wholly defeat the principal object for which this Tribunal
was created.
Matters involving the jurisdiction and power of the Tribunal to deal
with every aspect of this case, as it may affect the supreme object of
11492 3 34
the protection and preservation of these fur seals, should, I submit, be
passed upon before the Arbitrators enter upon the consideration of the
several questions of right submitted for determination.
The duty of this Tribunal to prescribe regulations arises when the
determination of the questions submitted to us, "as to the exclusive
jurisdiction of the United States," leaves the subject in such position
"that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the
fur seal in, or habitually resorting to, the Bering Sea." Such are the
express words of Article VII. If the United States has not such exclusive jurisdiction—that is, such sovereign power—as enables it to enact
laws, binding upon all, whether citizens of the United States or subjects of other countries, for the protection and preservation of these
seals, in all the waters both of Bering Sea and of the North Pacific Ocean
traversed by them—and no such claim has been preferred before us—
then we know, at this time, that the concurrence of Great Britain is
necessary to the establishment of regulations, whatever conclusion may
be reached upon the issue as to property and protection presented by
the fifth question of Article VI.
If it be held that the United States has no right of property in
these seals, and no right to protect them when found outside the ordinary three-mile limit, then the duty to prescribe concurrent regulations
becomes manifest. But regulations of that character are, in my judgment, necessary though, perhaps, not equally so, for the proper protection and preservation of the seals, if the Tribunal holds that such right
of property or protection does appertain to the United States; for, in
that case, the only means which the Government of that country could
employ would be those which the law permits to individual owners
of property for its protection. But that would be inadequate protection, without the concurrence of Great Britain, manifested by such legislation as would bind its subjects wherever they may be, and compel
them, under proper penalties, to respect any right of property or
protection accorded to the United States by the award or decision of
this Tribunal. So that it is certain that we must come to the subject
of regulations for the proper protection and preservation of this race
of animals.
If the Arbitrators believe that the race will be soon exterminated
unless pelagic sealing is prohibited, in both Bering Sea and the North
Pacific Ocean, during all the months when they may be taken in the 35
open waters, but that the Tribunal is without power, under the treaty,
to prescribe regulations of that character, is it not, as I have heretofore
suggested, our duty to suspend further action for a time, in order that
the two Governments may have an opportunity to so amend the treaty,
under which we are proceeding, as to enable us to preserve this race
from extermination? Shall we ignore the fact that both Governments
have protested, in every form of language, that they desired the preservation of these animals without reference to considerations of profit
or advantage to any nation or to individuals of any nation ? Shall it
be assumed that either of the great nations before us wish the Tribunal
to conclude its labors and adjourn without prescribing concurrent regulations that are, in fact, necessary for the preservation of these seals?
As these questions touching the competency of the Tribunal to deal
with the subject of the preservation of these animals have been distinctly raised by Great Britain and must- be decided, I submit that they
should be examined and decided, at the threshold of our proceedings
in conference.
Senator Morgan authorizes me to say that he concurs in this opinion.
[At i In; close of the discussion Senator Morgan offered, as a substitute for the motion of Mr. Justice Harlan, the following: " This Tribunal of Arbitration is empowered by the Treaty of Febrnary 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 subjeots, outside of their respective territorial limits and outside of
Bering Sea, for the protection and preservation of fur seals in, or habitually resorting to, Bering Sea." This substitute was accepted by Mr. Justice Harlan, and was
adopted, one Arbitrator voting in the negative. It was agreed that the consideration of the subjeot embraced in the second branch of the original motion of Mr.
Justice Harlan be postponed until the Tribunal should reach the subjeot of regulations in order, and should determine that regulations were made necessary by the
conclusions reached upon other questions named in the treaty.] PART II.
THE MERITS  OF THE VARIOUS  QUESTIONS SUBMITTED TO THE TRIBUNAL FOR DETERMINATION.
1.
CJENERAI- STATEMENT OF THE FACTS OUT OF WHICH THE
PRESENT CONTROVERSY BETWEEN THE TWO NATIONS AROSE,
AND THE HISTORV OF THE NEGOTIATIONS RESUIiTINO IN THE
TREATY OF FEBKITARV 29, 1892.
Before entering upon the examination of the important questions
submitted for determination, it will be weU to recall the general course
of the negotiations that preceded the making of the treaty under which
we are proceeding, and the principal facts out of which the present
controversy between the two governments originated. Some of these
facts have already been stated by me when considering, at a former
session of this Tribunal, the question of its competency to make regulations applicable to the North Pacific Ocean, and which also, in terms,
or by their necessary operation, would put an end to pelagic sealing in
the waters traversed by the Pribuof seals. But it is well, even at the
risk of repetition, to restate them in this connection.
The controversy had its origin in certain seizures of vessels, alleged
to belong to, or to be in the possession or under the control of, British
subjects who were engaged, at the time, in the waters of Bering Sea
outside of the ordinary limits of territorial jurisdiction, in hunting and
taking fur-seals which had their breeding grounds on the islands of
St. Paul and St. George, two of the four islands in Bering Sea constituting the Pribilof group.
The seizures referred to were made in 1886,1887, and 1889 by public
armed vessels acting under instructions from the Executive Department of the Government of the United States.
The Pribilof Islands are situated in Bering Sea, latitude 57° north,
longitude 170° west from Greenwich, about 300 miles from .Cape Newenham, on the mainland of Alaska Territory, and about 200 miles north
oi the Aleutian Islands, the latter islands extending several hundred
36 ! 37
miles westwardly and southwesterly from the peninsula of Alaska
into the Pacific Ocean. They were discovered in 1786 and 1787 by
Gefassim Pribilof, a Bussian navigator, while he was endeavoring to
ascertain upon what shores tbe herd of fur seals habitually landed,
which had been observed to pass once a year northwardly, and once a
year southwardly, through the channels between the Aleutian Islands.
Those islands, after their discovery, remained continuously in the
possession of Eussia until 1867. In that year the Emperor, by treaty,
ceded to the United States "all the territory and dominion" then possessed by him " on the continent of America and in the adjacent islands,"
and contained within certain defined geographical limits. The eastern
limit of the territory and dominion so conveyed was declared to be
the line of demarcation between the Bussian and British possessions
in North America, as established by articles III and IV of the treaty,
which wiU be hereafter referred to, between Russia and Great Britain
of February (28) 16, 1825.
The western limit is thus defined by the treaty of 1867:
I The western limit within which the territories and dominion conveyed
are contained passes through a point in Bering's Straits on the paraUel
of 65° 30' north latitude, at its intersection by the meridian which
passes midway between the Islands of Kruzenstern or Ignalook,
and the Island of Batmanoff or Noonarbook, and proceeds due north,
without limitation, into the same Frozen Ocean. The same western
limit, beginning at the same initial point, proceeds thence in a course
nearly southwest, through Bering's Straits and Bering's Sea so as to
pass midway between the northwest point of the Island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of
172, west longitude; thence, from the intersection of that meridian, in
a southwesterly direction, so as to pass midway between the Island of
Attu and Copper Island of the Komandorski couplet, a group in the
North Pacific Ocean, to the meridian of 193° west longitude, so as to
include in the territory conveyed the whole of the Aleutian Islands east
of that meridian."
Thattreaty further provided: " The cession of territory and dominion
herein made is hereby declared to be free and unencumbered by any
reservations, privileges, franchises, grants, or possessions by "any
associated companies, whether corporate or incorporate, Russian or any
other, or by any parties, except merely private individual property
holders; and the session hereby made conveys all the rights, franchises, oo
and privileges now belonging to Russia in the said territory or dominion and appurtenances thereto."    (15 U. S. Stat., 539.)
The Pribilof Islands are east of the line thus defined as the western
limit within which are the territory and dominion conveyed by Russia
to the United States. •
By an act of the Congress of the United States approved March 3,
1869, the islands of St. Paul and St. George in Alaska were declared
"a special reservation for Government purposes," and it was made
unlawful for any person to land or remain on either of them, except by
authority of the Secretary of the Treasury. This statute was followed
by an act approved July 1,1870, the expressed object of which was to
prevent the extermination of fur-bearing animals in Alaska. The provisions of the acts of 1869 and 1870 are reproduced in the Revised
Statutes of the United States of 1873. Those sections* show the extent
of authority and jurisdiction, which has been asserted by the United
*Sbc. 1954. The laws of the United States relating to customs, commerce, and
navigation are extended to and over all the mainlands, islands, and waters of the
territory ceded to the United States by the Emperor of Russia by treaty concluded
at Washington on the thirtieth day of March, anno Domini one thousand eight
hundred and sixty-seven, so far as the same may be applicable thereto.
Sec. 1956. No person shall kill any otter, mink, marten, sable, or fur-seal, or
other fur-bearing animal within the limits of Alaska Territory, or in the waters
thereof; and every person guilty thereof shall, for each offense, be fined not less
than two hundred nor more than one thousand dollars or imprisoned not more than
six months, or both; and all vessels, their tackle, apparel, furniture and cargo,
found engaged in violation of this section shall be forfeited. But the Secretary of
the Treasury shall have power to authorize the killing of any such mink, marten,
sable, or other fur-bearing animal, except fur-seals, under such regulations as he
may prescribe; and it shall be the duty of the Secretary to prevent the killing of
any fur-seal, and to provide for the execution of the provisions of this section until
it is otherwise provided by law; nor shall he grant any special privileges under this
section.
Sec. 1959. The islands of Saint Paul and Saint George in Alaska, are declared a
special reservation for Government purposes; and until otherwise provided by law
it shall be unlawful for any person to land or remain on either of those islands,
except by the authority of the Secretary of the Treasury; and any person found on
either of those islands contrary to the provisions hereof shall be summarily removed;
and it shall be the duty of the Secretary of War to carry this section into effect.
Sec. 1960. It shall be unlawful to kill any fur-seal upon the islands of Saint Paul
aud Saint George, or in the waters adjacent thereto, except during the months of
June, July, September, and October in each year; and it shall be unlawful to kill
such seals at any time by the use of firearms, or by other means tending to drive
the seals away from those islands; but the natives of the islands shall have the
privilege of killing such young seal as may be necessary for their own food and 39 j|j
States, over the territory and waters within the limits referred to in
the treaty of 1867.
By a subsequent act, passed March 2,1889, section 1956 of the Revised
Statutes, forbidding the killing of | any otter, mink, marten, sable or
fur seal, or other fur-bearing animals within the limits of Alaska Territory, or in the wafers thereof," was declared " to include and apply to
all the dominion of the United States in the waters of Bering Sea;"
and it was made the duty of the President, at a timely season in each
year, to issue his proclamation warning all persons against entering
said waters for the purpose of violating the provisions of said section,
and to cause one or more vessels of the United States to diligently
cruise said waters and arrest all persons, and seize aH vessels found
to be, or to have been, engaged in any violation of the laws of the
United States therein.
In execution of the above statutory provisions, the Secretary of the
clothing during other months, and also such old seals as may be required for their
own clothing, and for the manufacture of boats for their own use; and the killing
in such cases shall be limited and controlled by such regulations as may be prescribed by the Secretary of the Treasury.
Sec. 1961. It shall be unlawful to kill any female seal, or any seal less than one
year old, at any season of the year, except as above provided; and it shall also be
unlawful to kill any seal in the waters adjacent to the islands of Saint Paul and
.Saint George, or on the beaches, cliffs or rocks where they haul up from the sea to
remain; and every person who violates the provisions of this or the preceding section shall be punished for each offense by a fine of not less than two hundred dollars
nor more than one thousand dollars, or by imprisonment not more than six months,
or by both such fine and imprisonment; and all vessels, their tackle, apparel, and
furniture, whose crews are found engaged in the violation of either this or the preceding section, shall be forfeited to the United States.
Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur-seals which may be killed for their skins upon
the Island of Saint Paul is limited to seventy-five thousand per annum, and the
number of fur-seal which may be killed for their skin upon the Island of Saint
, George is limited to twenty-five thoiisand; but the Secretary of the Treasury may
limit the right of killing, if it becomes necessary for the preservation of such seals,
with such proportionate reduction of the rents reserved to the Government as may
be proper; and every person who knowingly violates either of the provisions of
this section shall be punished as provided in the preceding section.
Sec. 1963.. When the lease heretofore made by the Secretary of the Treasury to
the Alaska Commercial Company of the right to engage in taking fur-seals on the
islands of Saint Paul and Saint George, pursuant to the act of the first July, 1870,
chapter one hundred and eighty-nine,or when any future similar lease expires,or is surrendered, forfeited or terminated, the Secretary shall lease to proper and responsible I IM
40
Treasury has, from time to time, leased to an incorporated company the
right to engage in the business of taking fur seals on the islands of St.
Paul and St. George, under regulations prescribed by that officer.
It was under this state of the law, so far as the statutes of the United
States were concerned, that seizures of vessels were made. The British Government protested against those seizures as an unauthorized
interference with the rights of its subjects on the high seas. Its Minister at Washington, Sir Lionel Sackville West, in a letter dated January 9,1887, and addressed to Mr. Bayard, the American Secretary of
State, said: ''It is unnecessary for me to allude further to the information with which Her Majesty's Government have been furnished respecting these seizures of British vessels in the open seas, and which for
some time past has been in the possession of the United States Gov-
parties, for the best advantage of the United States, having due regard to the interest of the Government, the native inhabitants, their comfort, maintenance and
education, as well as to the interest of the parties heretofore engaged in trade,
and the protection of the fisheries, the right of taking fur-seals on the islands herein
named, and of sending a vessel or vessels to the islands for the skins of such seals,
for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and secured by a deposit of United States bonds
to that amount; and every such lease shall be duly executed in duplicate, and shall
not be transferable.
Sec. 1964. The Secretary of the Treasury shall take from the lessees of such islands
in all cases a bond, with securities, in a sum not less than five hundred thousand
dollars, conditioned for the faithful observance of all the laws and requirements of
Congress and the regulations of the Secretary of the Treasury touching the taking
of fur-seals and the disposing of the same, and for the payment of all taxes and
dues accruing to the United States connected therewith.
Sec. 1965. No persons other than American citizens shall be permitted, by lease or
otherwise, to occupy the islands of Saint Paul and Saint George, or either of them,
for the purpose of taking the skins of fur-seals'therefrom, nor shall any foreign vessel
be engaged in taking such skins; and the Secretary of the Treasury shall vacate and
declare any lease forfeited if the same be held or operated for the use, benefit, or
advantage, directly or indirectly, of any persons other than American citizens.
Sec. 1967. Every person who kills any fur-seal on either of these islands, or in the
waters adjacent thereto, without authority of the lessees thereof; and every person
who molests, disturbs, or interferes with the lessees, or either of them, or their
agents or employe's, in the lawful prosecution of their business, under the provisions of this chapter, shall for each offense be punished as described in section 1961;
and all vessels, their tackle, apparel, appurtenances, and cargo, whose crews are
found eugaged in any violation of the provisions of sections 1965 to 1968, inclusive,
shall be forfeited to the United States.
Sec. 1968. If any person or company, under any lease herein authorized, know- 41
ernment, because Her Majesty's Government do not doubt that if, on
inquiry, it should prove to be correct, the Government of the United
States will, with their well-known sense of justice, admit the illegality of the proceedings resorted to against the British vessels and the
British subjects above mentioned, and will cause reasonable reparation
to be made for the wrongs to which they have been subjected and for
the losses which they have sustained."    TJ. 8. Case, Vol. 1, App., 156.
Under date of April 12,1887, Mr. Bayard, writing to the British
minister, said: "The remoteness of the scene of the fur-seal fisheries
and the special peculiarities of that industry have unavoidably delayed
the Treasury officials in framing appropriate regulations and issuing
orders to United States vessels to police the Alaskan waters for the
protection of the fur seals from indiscriminate slaughter and conse-
ingly kills, or permits to be killed, any number of seals exceeding the number for
each island in this chapter prescribed, such person or company shall, in addition to
the penalties and forfeitures herein provided, forfeit the whole number of skins of
seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same.
Sec. 1969. In addition to the annual rental required to be reserved in every lease,
as provided in section nineteen hundred and sixty-three, a revenue tax or duty of
two dollars is laid upon each fur-seal skin taken and shipped from the islands of
Saint Paul and Saint George during the continuance of any lease, to be paid into
the Treasury of the United States; and the Secretary of the Treasury is empowered
to make all needful regulations for the collection and payment of the same, and to
secure the comfort, maintenance, education, and protection of the natives of those
islands, and also to carry into full effect all the provisions of this chapter except as
otherwise prescribed.
Sec. 1970. The Secretary of the Treasury may terminate any lease given to any
person, company, or corporation on full and satisfactory proof of the violation of
any of the provisions of this chapter or the regulations established by him.
Sec. 1971. The lessees shall furnish to the several masters of vessels employed by
them certified copies of the lease held by them respectively, which shall be presented
to the Government revenue officer for the time being who may be in charge at the
islands as the authority of the party for landing and taking skins.
Sec. 1972. Congress may at any time hereafter alter, amend or repeal sections from
1960 to 1971, both inclusive, of this chapter.
Sec. 1973. The Secretary of the Treasury is authorized to appoint one agent and
three assistant agents, who shall be charged with the management of the seal fisheries in Alaska, and the performance of such other duties as may be assigned to them
by the Secretary of the Treasury.
Sec. 1975. Such agents shall never be interested, directly or indirectly, in any lease
of the right to take seals, nor in any proceeds or profits thereof, either as owner,
agent, narther, or otherwise.
S!l -in
42
quent speedy extermination.   The laws of the United States in this
behalf are contained in the Revised Statutes relating to Alaska, in sections 1956-1971, and have been in force for upwards of seventeen years;
aud prior to the seizures of last summer but a single infraction is known
to have occurred, and that was promptly punished.   The question of
instructions to Government vessels in regard to preventing the indiscriminate killing of fur seals is now being considered, and I will inform
you at the earliest day possible what has been decided, so that British
and other vessels visiting the waters in question can govern themselves
accordingly."    TJ. 8. Case, Vol. 1, App., 160.   Subsequently, August
19,1887, Mr. Bayard addressed communications to the United States
ministers in France, Germany, Great Britain, Japan, Russia, and Sweden
and Norway, in which he saidr "Recent occurrences have drawn the
attention of this Department to the necessity of taking steps for the
better protection of the fur seal fisheries in Bering Sea.   Without
raising any question as to the exceptional measures which the peculiar
character of the property in question might justify this Government
in taking, and without reference to any exceptional marine jurisdiction
that might properly be claimed for that end, it is deemed advisable,
and I am instructed by the President to so inform you, to attain the
desired ends by international cooperation.   It is well known that the
unregulated and indiscriminate killing of seals in many parts of the
world has driven them from place to place, and, by breaking up their
habitual resorts, has greatly reduced their number.   Under these circumstances, and in view of the common interest of all nations in preventing the indiscriminate destruction and consequent extermination
of an animal which contributes so importantly to the commercial wealth
and general use of mankind, you are hereby instructed to draw the
attention of the Government to which you are accredited to the subject, and to invite it to enter into such an arrangement with the Government of the United States as will prevent the citizens of either
country from killing seal in Bering Sea at such times and places, and
by such methods as at present are pursued, and which threaten the
speedy extermination of those animals and consequent serious loss to
mankind.   The ministers of the United States to Germany, Sweden
and Norway, Russia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction."    TJ. 8.
Case, Vol. 1, App., 168.
A copy of this communication having been received by Mr. Phelps, 43
United States minister at London, he had an interview with Lord Salisbury, the British Secretary of State for Foreign Affairs, and proposed
that the two governments should adopt a code of regulations for the
preservation of the seals in Bering Sea from destruction at improper
times and by improper means by the citizens of either country—such
agreement to be entirely irrespective of any questions of conflicting
jurisdiction in those waters. This proposal, Mr. Phelps reported,
was acquiesced in by Lord Salisbury, who suggested that the American
Minister obtain from his Government and submit a sketch of a system
of regulations that would be adequate for the purpose. TJ. 8. Case,
Vol. 1, App., 171.
Under date of February 7,1888, Mr. Bayard wrote to Mr. Phelps
disclosing, in some detail, the reasons why prompt action was necessary
in order to prevent the entire destruction of the fur seals frequenting
the islands of the United States in Bering Sea, as well as those found
on the islands belonging to Russia. Responding to the suggestion
in respect to code of regulations, he said:
"The only way of obviating the lamentable result above predicted
appears to be by the United States, Great Britian, and other,interested
powers taking concerted action to prevent their citizens or subjects
from killing fur seals with firearms or other destructive weapons
north of 50 degrees of north latitude, and between 160 degrees of longitude west and 170 degrees of longitude east from Greenwich, during the
period intervening between April 15 and November 1. To prevent the
killing within a marine belt of 40 or 50 miles during that period would
be ineffectual as a preservative measure. This would clearly be so
during the approach of the seals to the islands. And after their arrival
there such a limit of protection would also be insufficient, since the
rapid progress of the seals through the water enables them to go great
distances from the islands in so short a time that it has been calculated
that an ordinary seal could go to the Aleutian Islands and back, in all
a distance of 300 or 400 miles, in less than two days." What would
take place unless steps were taken to preserve this race Mr. Bayard proceeded to show: "That the extermination of the fur seals must soon
take place unless they are protected from destruction in Bering Sea
is shown by the fate of the animal in other parts of the world, in
the absence of concerted action among the nations interested for its preservation. Formerly, many thousands of seals were obtained annually
from the South Pacific Islands and from the coasts of Chile and South
^
n
H 44
Africa. They were also common in the Falkland Islands and the adja-'
ceut seas. But in those islands, where hundreds of thousands of skins
were formerly obtained, there have been taken, according to the best
statistics, since 1880, less than 1,500 skins. In some cases the indiscriminate slaughter, especially by use of firearms, has in a few years
resulted in completely breaking up extensive rookeries. * * * It is
manifestly for the interests of all nations that so deplorable a thing
should not be allowed to occur. As has already been stated, on the Pribilof Islands this Government strictly limits the number of seals that
may be killed under its own lease to an American company, and citizens
of the United States have, during the past year, been arrested, and ten
American vessels seized for killing fur seals in Bering Sea." He further observed that Great Britain, in cooperating with the United
States to prevent the destruction of fur seals in Bering Sea would
aid in perpetuating an extensive and valuable industry in which her
own citizens have the most lucrative share.    TJ. 8. Case, Vol. 1, p. 172.
Mr. Phelps, upon receiving this communication, held an interview,
in London, with both Lord Salisbury and the Russian Ambassador, M.
de Staal, and reported, under date of February 25,1888, that his lordship assented to the proposition of Mr. Bayard, and that he would
also join the United States Government in any preventive measures it
may be thought best to adopt, by orders issued to the naval vessels in
that region of the respective governments. TJ. 8. Case, Vol. 1, App.,
173. The Russian ambassador concurred, so far as his personal opinion was concerned, in the propriety of the proposed measures for the
protection of the seals, and promised to communicate at once with his
Government.
In reply to the last letter Mr. Bayard wrote to Mr. Phelps: "It is
hoped that Lord Salisbury will give it favorable consideration, as there
can be no doubt of the importance of preserving the seal fisheries in
Bering Sea, and it is also desirable that this should be done by an
arrangement between the governments interested without the United
States being called upon to consider what special measures of its own
the exceptional character of the property in question might require it
to take in case of the refusal of foreign powers to give their cooperation. Whether legislation would be necessary to enable the United
States and Great Britain to carry out measures for the protection of
the seals would depend much upon the character of the regulation; but
it is probable that legislation would be required.   The manner of pro- 45
tecting the seals would depend upon the kind of arrangement which
Great Britain Avould be willing to make with the United States for tbe
policing of the seas and for the trial of British subjects violating tbe
regulations which the two governments may agree upon for such protection."    TJ. 8. Case, Vol. 1, App., 175.
During a temporary absence of Mr. Phelps from London, Mr. White,
the United States Charge" d'Affaires, had an interview with Lord Salisbury and the Russian ambassador, and reported that M. de Staal
expressed a desire, on behalf of his government, to include in the area
to be protected by the convention the Sea of Okhotsk, or at least that
portion of it in which Robben Island is situated, there being, he said,
in that region large numbers of seals whose destruction is threatened
in the same way as those in Bering Sea; and that Lord Salisbury,
in order to meet the Russian Government's wishes respecting the
waters surrounding Robben Island, suggested 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. His lordship intimated, furthermore, that the
period proposed by the United States for a close time, April 15 to November 1, might interfere with the trade longer than absolutely necessary for the protection of the seals, and he suggested October 1, instead
of a month later, as the termination of the period of seal protection.
TJ. 8. Case, Vol., 1, App., 179.
Mr. Bayard, in reply, said that he did object to the inclusion of the
Sea of Okhotsk, or so much of it as was necessary for the protection of
tbe seals; nor did he deem it absolutely necessary to insist on the extension of the close season till the 1st of November. Only such a period
was desired as was requisite for the end in view. But that success may be assured in the efforts of the various governments interested in the protection of the seals, it seemed advisable to take the 15th
of October instead of the 1st as the date of the close time, although,
the 1st of November would be safer.    TJ. 8. Case, Vol. 1, App., 180.
At the argument there was some controversy between counsel as to
whether Lord Salisbury had, in fact, agreed to any particular mode of
protecting these fur seals from destruction. It is • quite sufficient,
in any view of this case, to accept the account Lord Salisbury himself gave of the meeting between himself and the representatives of
the United States and Russia, on which occasion was considered the
question of the preservation of the furseal species.   The principal
I IM
46
interview on this subject was held on the 16th of April, 1888, and its
result was stated the same day in an official communication from Lord
Salisbury to the British Minister at Washington. Lord Salisbury
said: "At this preliminary discussion it was decided provisionally, in
order to furnish a basis for negotiation, and without definitely pledging our governments, that the space to be covered by the proposed
convention should be the sea between America and Russia north of
the 47th degree of latitude; that the close time should extend from
the 15th of April to the 1st of November; that during that time the
slaughter of all seals should be forbidden, and vessels engaged in it
should be liable to seizure by the cruisers of any of the three powers
and should be taken to the port of their own nationality for condemnation; that the traffic in arms, alcohol, and powder, should be prohibited
in all the islands of those seas; and that, as soon as the three powers
had concluded a convention, they should join in submitting it for the
assent of the other maritime powers of the northern seas. The United
States charge" d'affaires was exceedingly earnest in pressing on us
the importance of dispatch, on account of the inconceivable slaughter
that had been and was still going on in these seas. He stated that, in
addition to the vast quantity brought to market, it was a common
practice for those engaged in the trade to shoot all seals they might
meet in the open sea, and that of these a great number sank, so that
their skins could not be recovered." British Case, Vol. 3, App., 196; TJ.
8. Case, Vol. 1 App., 238.
A similar communication was sent to Sir R. Morier, the British Ambassador at St. Petersburg.
These negotiations resulted in nothing of a practical nature because
of the objections raised by the Canadian Government to any such plan
as that to which the representatives of Great Britain, the United States
and Russia, "provisionally, in order to furnish a basis for negotiation,"
assented at the meeting of April 16,1888.
Mr. Phelps, had a conversation with Lord Salisbury on the 13th of
August, 1888, and again pressed for the completion of the convention,
as the proposed extermination of the seals by Canadian vessels was understood to be rapidly proceeding. His lordship did not question the
propriety or importance of taking measures to prevent tbe wanton destruction of so valuable an industry, in which, as he remarked, England
had a large interests of its own. But he said that the Canadian Government objected to any such restrictions, and that until its consent 47
could be obtained, Her Majesty's Government was not willing to enter
into the convention; that time would be requisite to bring about that;
and that meanwhile the conventiou must wait. It then became apparent to Mr. Phelps that the British Government would not execute
the desired convention without the concurrence of Canada. Writing
to Mr. Bayard, September 12, 1888, Mr. Phelps, in giving an account
of his interview with Lord Salisbury, said: " Certain Canadian vessels
are making a profit out of the destruction of the seal in tbe 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
ouly profit open to it in connection with them is by destroying tbe 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."    TJ. 8. Case, Vol. 1, pp. 181,182.
Upon the accession of Mr. Harrison to the office of President, the
matters in dispute between the two Governments being unsettled,
again became the subject of diplomatic correspondence. That correspondence is too voluminous to be reproduced in this opinion. But a
reference to an interview between Mr. Blaine and the British minister
at Washington, which took place October 24, 1889, together with
extracts from some of the communications emanating from the State
Department, will suffice to show the general grounds upon which the
position then taken by the United States was based.
In the report which Sir Julian Pauncefote made to Lord Salisbury of
the above interview, it is said:
"We had a great deal of friendly discussion, in the course of which
he stated that the seizures of the Canadian seal fishing vessels had
been effected by the Treasury Department, which is charged with the
protection and collection of the revenue (including that derived from
the Alaska Company), and the measure had been resorted to under the
belief that it was warranted by the act of Congress and the proclamation of the President. In this view the Department had been confirmed
by the judgment of the district court of Alaska.   I observed that this
I
Pjl Ill
W\
48
appeared like an assertion of the mare clausum doctrine, which I could
hardly believe would be revived at the present day by his Government
or any other, to which he replied that his Government had not officially
asserted such a claim, and therefore it was unnecessary to discuss it.
As a matter of fact there had been no interference with any Canadian
vessels in Bering Sea except such as were found engaged in the capture
and destruction of fur seals. But his Government claimed the exclusive
right of seal fishery, which the United States, and Russia before them,
had practically enjoyed for generations without any attempt at interference from any other country. The fur seal was a species most valuable
to mankind and the Bering Sea was its last stronghold. The United
States had bought the islands in that sea to which these creatures
periodically resort to lay their young, and now Canadian fishermen
step in" and slaughter the seals on their passage to the islands, without
taking heed of the warnings given, by Canadian officials themselves,
that the result must inevitably be the extermination of the species.
This was an abuse, not only reprehensible in itself, and opposed to the
interests of mankind, but au infraction of the rights of the United
States. It inflicted, moreover, a serious injury on a neighboring and
friendly State, by depriving it of the fruits of an industry on which vast
sums of money had been expended, and which had long been pursued
exclusively and for the general benefit. The case was so strong as to
necessitate measures of self-defense for the vindication of the rights of
the United States and the protection of this valuable fishery from destruction. I replied that as regarded the question of right I could not
admit that the seizure of the Canadian vessels was justified under the
terms of the act of Congress or of the proclamation of the President.
Municipal legislation could have no operation against foreign vessels beyond territorial waters. A claim of exclusive fishery on the high seas
was opposed to international law, and no such right could be acquired
by prescription. Mr. Blaine observed that he thought Great Britain
enjoyed such a right in relation to pearl fisheries in some parts of the
world. I said I was not aware of any such case. As regarded the
question of fact, namely, the extermination of the fur seal species and
the necessity for a < close season,' there was unfortunately a conflict of
opinion. But if, upon a further and more complete examination of the
evidence, Her Majesty's Government should come to the conclusion
that a 'close season' is really necessary, and if an agreement should be
arrived at on the subject, all differences on questions of legal right 49
would ipso facto disappear. Mr. Blaine expressed his readiness to proceed to such an inquiry, adding that he would be prepared to establish
from Canadian evidenee alone the absolute necessity for a i close season,' but he strongly insisted that the inquiry should take place here
and be entirely of & diplomatic character. * * * As regards compensation, if an agreement should be arrived at, he felt sure that his
Government would not wish that private individuals who had acted
bona fide in the belief that they were exercising their lawful rights
should be the victims of a grave dispute between two great countries,
which had happily been adjusted. He was not without hope, therefore,
that the wishes I had expressed might be met, and that all might be
arranged in a manner which should involve no humiliation on either
side. His tone was friendly throughout, and he manifested a strong
desire to let all questions of legal right and international law disappear in an agreement for a'close season,' which he believes to be
urgently called for in the common interest. It only now remains for me
to solicit your lordship's instructions in regard to the suggestion of
resuming in Washington the tripartite negotiation, with a view to
arriving, if possible, at such a solution as is proposed by Mr. Blaine."
British Case, Vol. 3, App. 350-351.
After this interview the British Government made complaints of other
seizures of British vessels in the open waters of Bering Sea. Those
complaints were met by Mr. Blaine in his letter of January 22, 1890,
addressed to Sir Julian Pauncefote. As that letter contains a fuller
statement of the position of the United States than had been made up
to that time, nearly the whole of it is given, as follows:
"In the opinion of the President, the Canadian vessels arrested and
detained in the Bering Sea were engaged in a pursuit that was in
itself contra bonos mores, a pursuit which of necessity involves a serious
and permanent injury to the rights of the Government and people of
the United States. To establish this ground it is not necessary to
argue the question of the extent and nature of the sovereignty of this
Government over the waters of Bering Sea; it is not necessary to
explain, certainly not to define, the powers and privileges ceded by
His Imperial Majesty, the Emperor of Russia, in the treaty by which
the Alaskan Territory was transferred to the United States. The
weighty considerations growing out of the acquisition of that territory,
with all the rights on land and sea inseparably connected therewith,
may be safely left out of view, while the grounds are set forth upon
11492 4 50
which this Government rests its justification for the action complained
of by Her Majesty's Government. It cannot be unknown to Her
Majesty's Government that one of the most valuable sources of revenue
from the Alaskan possessions is the far seal fisheries of the Bering
Sea. These fisheries had been exclusively controlled by the Government of Russia, without interference or without question, from their
original discovery until the cession of Alaska to the United States in
1867. From 1867 to 1886 the possession in which Russia had been
undisturbed was enjoyed by this Government also. There was no
interruption and no intrusion from any source. Vessels from other
nations passing from time to time through Bering Sea to the Arctic
Ocean in pursuit of whales had always abstained from taking part in
the capture of seals.
"This uniform avoidance of all attempts to take fur seal in those
waters had been a constant recognition of the right held and exercised
first by Russia and subsequently by this Government. It has also been
the recognition of a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to their extinction. This is
not only the well-known opinion of experts, both British and American,
based upon prolonged observation and investigation, but the fact has
also been demonstrated in a wide sense by the well nigh total destruction of all seal fisheries except the one in Bering Sea, which the Government of the United States is now striving to preserve, not altogether ■
for the use of the American people, but for the use of the world at large.
"The killing of seals in the open sea involves the destruction of the
female in common with the male. The slaughter of the female seal is
reckoned as an immediate loss of three seals, besides the future loss of
the whole number which the bearing seal may produce in the successive years of life. The destruction which results from killing seals in
the open sea proceeds, therefore, by a ratio which constantly and rapidly increases, and insures the total extermination of the species within
a very brief period. It has thus become known that the only proper
time for the slaughter of seals is at the season when they betake themselves to the land, because the land is the only place where the necessary discrimination can be made as to the age and sex of the seal. It
would seem, then, by fair reasoning, that nations not possessing the
territory upon which seals can increase their numbers by natural growth,
and thus afford an annual supply of skins for the use of mankind, should
refrain from the slaughter in open sea, where the destruction of the
species is sure and swift. 51
"After the acquisition of Alaska the Government of the United
States, through competent agents working under the direction of the
best experts, gavecareful attention to the improvement of the seal fisheries. Proceeding by a close obedience to the laws of nature, and rigidly limiting the number to be annually slaughtered, the Government
succeeded in increasing the total number of seals and adding correspondingly and largely to the value of the fisheries. In the course of a
few years of intelligent and interesting experiment the number that
could be safely slaughtered was fixed at 100,000 annually. The company to which the administration of the fisheries was intrusted, by a
' lease from this Government, has paid a rental of $50,000 per annum,
and in addition thereto $2.62£ per skin for the total number taken,
The skins were regularly transported to London to be dressed and prepared for the markets of the world, and the business had grown so
large that the earnings of English laborers, since Alaska was transferred to the United States, amount in the aggregate to more than
$12,000,000. The entire business was then conducted peacefully, lawfully, and profitably—profitably to the United States, for the rental was
yielding a moderate interest on the large sum which this Government
had paid for Alaska, including the rights now at issue; profitably
to the Alaskan Company, which, under governmental direction and
restriction, had given unwearied pains to the care and development of
the fisheries; profitably to the Aleuts, who were receiving a fair pecuniary reward for their labors, and were elevated from semi-savagery to
civilization and to the enjoyment of schools and churches provided for
their benefit by the Government of the United States, and, last of all,
profitably to a large body of English laborers, who bad constant employment and received good wages.
" This, in brief, was the condition of the Alaska fur seal fisheries down
to the year 1886. The precedents, customs, and rights had been established and enjoyed either by Russia or the United States for nearly a
century. The two nations were the only powers that owned a foot of
land on the continents that bordered, or on theislandsincluded within,
the Bering waters where the seals resort to breed. Into this peaceful
and secluded field of labor, whose benefits were so equitably shared by
the native Aleuts of the Pribilof Islands, by the United States, and by
England, certain Canadian vessels in 1886 asserted their right to enter
and by their ruthless course to destroy the fisheries, and with them to
destroy also the resulting industries which are  so valuable.    The
SI' TT
52
Government of the United States at once proceeded to check this
movement, which, unchecked, was sure to do great and irreparabl
harm. It was cause of unfeigned surprise to the United States that Her
Majesty's Government should immediately interfere to defend and
encourage (surely to encourage by defending) the course of the Canadians in disturbing an industry which had been carefully developed for
more than ninety years under the flags of Russia and the United States—
developed in such a manner as not to interfere with the public rights
or the private industries of any other people or any other person.
i Whence did the ships of Canada derive the right to do in 1886 that
which they had refrained from doing for more than ninety years? Upon
what grounds did Her Majesty's Government defend in the year 1886 a
course of conduct in the Bering Sea which she had carefull y avoided
ever since the discovery of that sea? By what reasoning did Her Maj-
jesty's Government conclude that an act may be committed with impunity against the rights of the United States which had never been
attempted against the same rights when held by'the Russian Empire?
"So great has been the injury to the fisheries from the irregular and
destructive slaughter of seals in the open waters of the Bering Sea by.
Canadian vessels that, whereas the Government had allowed 100,000
to be taken annually for a series of years, it is now compelled to reduce
the number to 60,000. If four years of this violation of natural law and
neighbor's rights has reduced the annual slaughter of seal by 40 per cent,
it is easy to see how short a period will be required to work the total
destruction of the fisheries.
"The ground upon which Her Majesty's Government justifies, or at
least defends, the course of the Canadian vessels rests upon the fact
that they are committing their acts of destruction on the high seas, viz,
more than 3 marine miles from the shore line. It is doubtful whether
Her Majesty's Government would abide by this ruleif the attempt were
made to interfere with the pearl fisheries of Ceylon, which extend more
than 20 miles from the shore line and have been enjoyed by England
without molestation ever since their acquisition. So well recognized
is the British ownership of those fisheries, regardless of the limit of
the 3-mile line, that Her Majesty's Government feels authorized to
sell the pearl-fishing right from year to year to the highest bidder.
Nor is it credible that modes of fishing on the Grand Banks, altogether
practicable, but highly destructive, would be justified or even permitted
by Great Britain on the plea that the vicious acts were committed more
than 3 miles from the shore. 53
" There are^ according to scientific authority, "great colonies of fish"
on the "Newfoundland Banks." These colonies resemble the seats of
great populations on land. They remain stationary, having a limited
range of water in which they live and die. In these great "colonies"
it is, according to expert judgment, comparatively-easy to explode
dynamite or giant powder in such manner as to kill vast quantities of
fish and at the same time destroy countless numbers of eggs. Stringent laws have been necessary to prevent the taking of fish by the use
of dynamite in many of the rivers and lakes of the United States.
The same mode of fishing could readily be adopted with effect on the
more shallow parts of the banks, but the destruction of fish in proportion to the catch, says a high authority, might be as great as 10,000 to 1.
Would Her Majesty's Government think that so wicked an act could
not be prevented and its perpetrators punished simply because it
had been committed outside of the 3-mile line?
"Why are not the two cases parallel? The Canadian vessels are
engaged in the taking of fur seals in a. manner that destroys tbe power of
reproduction and insures the extermination of the species. In exterminating the species an article useful to mankind is totally destroyed
in order that temporary and immoral gain may be acquired by a few
persons. By the employment of dynamite on the banks it is not probable that the total destruction of fish could be accomplished, but a
serious diminution of a valuable food for man might assuredly result.
Does Her Majesty's Government seriously maintain that the law of
nations is powerless to prevent such violation of the common rights of
man? Are the supporters of justice in all nations to be declared
incompetent to prevent wrongs so odious and so destructive?
"In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea and the liberty which it confers
and which it protects be perverted to justify acts which are immoral in
themselves, which inevitably tend to results against the interests and
against the welfare of mankind. One step beyond that which Her
Majesty's Government has taken in this contention, and piracy finds
its justification. The President does not conceive it possible that Her
Majesty's Government could, in fact, be less indifferent to these evil
results than is the Government of the United States. But he hopes
that Her Majesty's Government will, after this frank expression of views,
more readily comprehend the position of the Government of the United
States touching this serious question.  This Government has been ready
Ii 54
to concede much in order to adjust all differences of view, and has, in
the judgment of the President, already proposed a solution, not only
equitable, but generous. Thus far Her Majesty's Government has
declined to accept the proposal of the United States. The President
now awaits with deep interest, not unmixed with solicitude, any proposition for reasonable adjustment which Her Majesty's Government may
submit. The forcible resistance to which this Government is constrained
in the Bering Sea is, in the President's judgment, demanded not only
by the necessity of defending the traditional and long-established rights
of the United States, but also the rights of good government and of
good morals the world over.
I In this contention the Government of the United States has no occasion and no desire to withdraw or modify the positions which it has at
any time maintained against the claims of the Imperial Government of
Russia. The United States will not withhold from any nation the
privileges which it demanded for itself when Alaska was part of the
Russian Empire. Nor is the Government of the United States disposed to exercise in those possessions any less power or authority than
it was willing to concede to the Imperial Government of Russia when
its sovereignty extended over them. The President is persuaded that
all friendly nations will concede to the United States the same rights
and privileges on the lands and in the waters of Alaska which the same
friendly nations have always conceded to the Empire of Russia." TJ. 8..
Case, Vol. I, App., 200.
In his letter of December 17, 1890, in reply to Lord Salisbury's
letter of August 2,1890, Mr. Blaine discusses with much elaboration
and with signal ability all the questions then in dispute between the
two governments.   In that letter he says:
"I am directed by the President to say that, on behalf of the United
States, he is willing to adopt the text used in the act of Parliament to
exclude ships from hovering nearer to the island of St. Helena than 8
marine leagues, or he will take the example cited by Sir George Baden-
Powell, where, by permission of Her Majesty's Government, control
over a part of the ocean 600 miles wide is to-day authorized by Australian law. The President will ask the Government of Great Britain to
agree to the distance of 20 marine leagues—within which no ship shall
hover around the islands of St. Paul and St. George from the 15th of
May to the 15th of October of each year. This will prove an effective
mode of preserving the seal fisheries for the use of the civilized world— mil
55
a mode which in view of Great Britain's assumption of power over the
open ocean she can not with consistency decline. Great Britain prescribed 8 leagues at St. Helena; but the obvious necessities in the
Bering Sea will, on the basis of this precedent, justify 20 leagues for
.the protection of the American seal fisheries.
"The United States desires only such control over a limited extent of
the waters in the Bering Sea, for a part of each year, as will be sufficient to insure the protection of the fur seal fisheries, already injured,
possibly, to an irreparable extent by the intrusion of Canadian vessels,
sailing with the encouragement of Great Britain and protected by her
flag. The gravest wrong is committed when (as in many instances is
the case) American citizens, refusing obedience to the laws of their own
country, have gone into partnership with the British flag and engaged
in the destruction of the seal fisheries which belong to the United
States. So general, so notorious, and so shamelessly avowed has this
practice become that last season, according to the report of the American consul at Victoria, when the intruders assembled at Unalaska
on the 4th of July, previous to entering Bering Sea, the day was
celebrated in a patriotic and spirited manner by the American citizens,
who at the time were protected by the British flag in their violation
of the laws of their own country.
" With such agencies as these, devised by the Dominion of Canada,
and protected by the flag of Great Britain, American rights and interests have, within the past four years, been damaged to the extent of
millions of dollars, with no corresponding gain to those who caused
the loss.   *   *   *
"The repeated assertions that the Government of the United States
demands that the Bering Sea be pronounced mare clausum are without foundation. The Government has never claimed it and never
desired it. It expressly disavows it. At the same time the United
States does riot lack abundant authority, according to the ablest exponents of international law, for holding a small section of the Bering
Sea for the protection of the fur seals. Controlling a comparatively
restricted area of water for that one specific purpose is by no means
the equivalent of declaring the sea, or any part thereof, mare clausum.
Nor is it by any means so serious an obstruction as Great Britain
assumed to make it in the South Atlantic^ nor so groundless an interference with the common law of the sea as is maintained by British
authority to-day in the Indian Ocean." TJ. 8. Case, Vol. I, App., 263,284,
286. 56
In the same letter he observes that the President, not desiring the
long postponement which an examination of the legal authorities from
Ulpian to Phillimore and Kent would involve, refers to the following
passages in the letter of Mr. Phelps of September 12,1888, as fully expressing his own views:
"Much learning has been expended upon the discussion of the
abstract question of the right of mare clausum. I do not conceive it
to be applicable to the present case. Here is a valuable fishery and a
large, and, if properly managed, permanent industry, the property of the
nations on whose shores it is carried on. It is proposed by the colony,
of a foreign nation, in defiance of the joint remonstrance of all the
countries interested, to destroy this business by the indiscriminate
slaughter and extermination of the animals in question in the open
neighboring sea during the period of gestation, when the common
dictates of humanity ought to protect them were there no interest at
all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain
distance from the coast is free. The same line of argument would
take under its protection piracy and the slave trade, when prosecuted
in the open sea, or would justify one nation in destroying the commerce
of another by placing dangerous obstructions and derelicts in the open
sea near its coasts. There are many things which can not be allowed
to be done on the open sea with impunity, and against which every sea'
is mare clausum; and the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon Canadian
coasts could be destroyed by scattering poison in the open sea adjacent
with some small profit to those engaged in it, would Canada, upon the
just principles of international law, be held defenceless in such a case?
Vet that process would be no more destructive, inhuman, and wanton
than this. If precedents are wanting for a defense so necessary and
proper it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents
that have been established when the just occasion for them arose,
undeterred by the discussion of abstract and inadequate rules." TJ.
8. Case, Vol. 1, App., 263, 287.
At a later date, in his letter of June 14, 1891, to Sir Julian Pauncefote, Mr. Blaine said:
"In the opinion of the President Lord Salisbury is wholly and
strangely in error in making the following statement:   'Nor do they 57
(the advisers of the President) reply, as a justification for the seizure
of British ships in the open sea, upon the contention that the interests
of the seal fisheries give to the United States Government any right
for that purpose which, according to international law, it would not
otherwise possess.' The Government of the United States has steadily
held just the reverse of the position which Lord Salisbury has imputed
to it. It holds that the ownership of the islands upon which the seals
breed, that the habit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands in search
of food and regularly returning thereto, and all the facts and incidents
of their relation to the island, give the United States a property interest
therein; that this property interest was claimed and exercised by Russia
during the whole period of its sovereignty over the land and waters of
Alaska; that England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the
whole period of Russia's ownership of Alaska and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 aud
subsequent years has changed the-law and equity of the case theretofore prevailing."    TJ. 8. Case, Vol. 1, App., 295, 298.
The general contention of the British Government, during the negotiations, so far as the questions of right and jurisdiction were concerned,
was that Russia neither asserted nor exercised, and could never have
rightfully asserted or exercised, exclusive jurisdiction or exclusive
rights in the open waters of Bering Sea, except that by the Ukase of
1821 she forbade foreign vessels from approaching nearer than 100
Italian miles from the coast of the North American continent between
Bering Strait and the fifty-first degree of north latitude, or the coasts
of the Asiatic continent from the same strait to the forty-fifth degree of
north latitude, or the intervening islands belonging to her; thatagninst
this prohibition both Great Britain and the United States earnestly
protested, and it was withdrawn or abandoned by Russia when she
made the treaty of 1824 with the United States, and that of 1825
with Great Britain; that the pursuit of fur seals in the open seas could
not of itself be regarded as contra bonos mores unless and until, for special
reasons, it has been agreed by international arrangement to forbid it;
that Great Britain has always claimed the freedom of navigation and
fishing in the waters of Bering Sea outside the usual territorial limit of 1
III
58
one marine league from the coast; that the public right to fish, catch
seals, or pursue any other lawful occupation on the high seas can not
be held to be abandoned by a nation from the mere fact that for a certain number of years it has not suited the subjects of that nation to
exercise it; that fur seals were animals feras naturae, and were res
nullius until caught; that no person could have property in them
until he had actually reduced them into possession by capture,vand
that any interference by the United States with the hunting and
taking of these fur seals, in the open waters of the ocean, by the
citizens or subjects of Great Britain, was a violation of rights secured
to them by the law of nations.
The result of the negotiations was the treaty of February 29,1892,
under which this Tribunal is proceeding.
y
2.
JURISDICTION AND RIGHTS ASSERTED AND EXERCISED KV RUSSIA IN BERING SEA, AND IN RESPECT TO TBE SEAL FISHERIES
IN THAT SEA, PRIOR TO THE CESSION OP 1867 OP. ALASKA TO
THE UNITED STATES.
EFFECT OF THE TREATY" CONCLUDED IN 1825 BETWEEN RUSSIA
AND ORE AT BRITAIN.
THE RIGHTS THAT PASSED TO THE UNITED STATES BV THE
TREATV OF CESSION OF 1867.
With the knowledge of the origin and history of the controversy
between the two Governments which the above statement furnishes we
are the better prepared to consider the particular questions which
this treaty requires this Tribunal to determine.
By Article VI of the treaty of February 29,1892, it was provided
that
"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 Bering
Sea, and what exclusive rights in the seal fisheries therein, did Russia
assert and exercise prior and up to the time of the cession of Alaska to
the United States?
"2. How far were these claims of jurisdiction as to the seal fisheries
recognized and conceded by Great Britain? 59
13. Was the body of water now known as the Bering Sea included
in the phrase 'Pacific Ocean,' as used in the treaty of 1825 between
Great Britain and Russia, and what rights, if any, in the Bering
Sea were held and exclusively exercised by Russia after said treaty?
"4. Did not all the rights of Russia as to jurisdiction and as to the
seal fisheries in Bering Sea east of the water boundary in the treaty
between the United States and Russia of the 30th March, 1867, pass
unimpaired to the United States under that treaty?
15. Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the islands of the
United States in Bering Sea when such seals are found outside
the ordinary three-mile limit?"
All of the points specified in this article of the treaty are, in my
judgment, embraced in the general questions for the amicable settlement of which this Tribunal has been constituted, and which are
described in Article I of the treaty as questions '''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, said sea, and the rights of the citizens or subjects of either
country as regards the taking of fur seal in, or habitually resorting to,
the said waters." These general questions may properly be met by
the answers the Tribunal makes to the points particularly named in
Article VI. If they are not so met, then it will be tbe duty of Arbitrators to make such additional answers as will cover all the matters embraced in Article I. An award that does not dispose of those
points, as well as of the several matters generally named in Article
I, might be disregarded as not such a decision as the treaty requires.
It was not within the contemplation of the two governments that any
matter embraced in either article should be left undetermined by tbe
Tribunal. In the belief that the entire controversy in respect to the
questions and points enumerated in those articles would be concluded
by the award, the two governments engaged, in Article XIV, "to
consider the result of the proceedings of the Tribunal of Arbitration,
as a full, perfect, and final settlement of all questions referred to the
Arbitrators," and to cooperate in securing the adhesion of other powers
to such regulations as might be prescribed.
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The first point in Article VI of the Treaty involves an inquiry as to	
What exclusive jurisdiction in the sea now known as the Bering Sea, 60
and what exclusive rights in the seal fisheries therein, did Russia assert
and exercise prior and up to the time of the cession of Alaska to the
United States?
The relations held by Russia to Bering Sea and to the fisheries
therein, largely involve the interpretation to be given to what are called
the Ukases of 1799 and 1821, to the treaty of 1824 between Russia
and the United States, and the treaty of 1825 between Russia and
Great Britain. Those treaties were the result of negotiations that
followed the vigorous protests made by the United States and Great
Britain against the Ukase of 1821. I wili later on consider their effect
upon any claims of jurisdiction and authority asserted by Russia.
The Ukase of 1799, as it is commonly called, was little more than a
charter granted to the Russian American Company. The material
portions of it are in these words:
"By the grace of a merciful God, we, Paul the First, Emporor and
Autocrat of all the Russias, etc. To the Russian American Company
under our highest protection. The benefits and advantages resulting
to our empire from the hunting and trading carried on by our loyal
subjects in the northeastern seas and along the coasts of America have
attracted our imperial attention 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 "Russian American Company, operating"
under our Highest Protection;" and for the purpose of aiding 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, 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 Russian navigators of
the northeastern part of America, beginning from the fifty-fifth degree
of north latitude and of the chain of islands extending from Kamchatka
to the north to America, and southward to Japan, and by right of possession of the same by Russia, 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, and also on the Aleutian, Kurile,
and other islands situated in the Northeastern Ocean. 61
"II. To make new discoveries not only north of the fifty-fifth degree
of north latitude but farther to the south, and to occupy the new lands
discovered as Russian possessions, according to prescribed rules, if
they have not been previously occupied by or been dependent on any
other nation.
"III. To use and profit by everything that has been or shall be discovered in those localities, on the surface and in the interior of the
earth, without competition from others.
1IV. We most graciously permit this company to establish settlements in future times wherever they are wanted, according to its best
knowledge and belief, and fortify them to insure the safety of the inhabitants, and to send ships to those shores with goods and hunters,
without any obstacles on the part of the Government.
1V. To extend their navigation to all adjoining nations and hold business intercourse with all surrounding powers, upon obtaining their free
consent for the purpose, and under our highest protection to enable
them to prosecute their enterprises with greater force and advantage.
"VI. Toemploy for navigation, hunting, and all other business, freeand
unsuspected people, having ho illegal views or intentions.     *     *     *
"X. The exclusive right is most graciously granted to the company
for a period of twenty years, to use and enjoy, in the above extent of
country and islands, all profits and advantages derived from hun'ting,
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 furs 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 the vessel; and after that nobody will have any
privileges but this one company, which will be'protected in the enjoyment of all the rights mentioned.
IXI. Under our highest protection the Russian-American Company
will have full control over all above-mentioned localities, and exercise
judicial powers in minor cases. The company will also be permitted
to use all local facilities for fortifications in the defense of tbe country
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under their control against foreign attacks. Only partners of the
company shall be employed in the administration of the new possessions
in charge of the company."    U. 8. Case, Vol. 1, App., 14.
This is the translation of the Ukase of 1799 as given in the original Cases of both governments. It is also identical with that found
in Bancroft's History of Alaska, the author stating that the translation
adopted by him is based on the full text of the charter from Golovnin
in Materialui I. 77-80. Bancroft's Works, Vol. 33, History of Alaska,
p. 379.
In the British Counter Case it is said that the-above translation is
inaccurate, and what is now claimed to be a correct rendering of the
original Russian document, as given by Golovnin and Tikhmenie, is
produced. But at the oral argument it was admitted that the differences between these translations did not materially affect any questions
depending upon the construction of the Ukase of 1799. For that reason
the latter translation is not embodied in this opinion.
Did this Ukase assert an exclusive jurisdiction upon the part of Russia over any part of Bering Sea beyond ordinary territorial waters?
It is quite true that at the time the Ukase of 1799 was issued all the
islands in Bering Sea had become a part of the territory of Russia by
right of discovery and occupancy, within the rules announced by the
Supreme Court of the United States in Johnson vs. Mcltosh, 8 Wheat.,
543, 572. In that case Chief Justice Marshall, speaking for the court, -
said: "On the discovery of this immense continent, the great nations of
Europe were eager to appropriate to themselves so much of it as they
could respectively require. Its vast extent afforded an ample field to
the ambition and enterprise of all; and the character and religion of its
inhabitants afforded an apology for considering them as a people over
whom the superior genius of.Europe might claim an ascendancy. The
potentates of the old world found no difficulty in convincing themselves
that they made ample compensation to the inhabitants of the new by
bestowing upon them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same
object it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle, which all should
acknowledge as tbe law, by which the right of acquisition, which they all
asserted, should be regulated as between themselves. This principle
was that discovery gave title to the government by whose subjects, or 63
by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the
discovery tbe sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans
could interfere. It was a right which all asserted for themselves, and to
the assertion of which by others all assented."
In my judgment there is nothing in the Ukase of 1799 which either
expressly or by necessary implication indicates the purpose of Russia
to assert such sovereign authority over the open waters of Bering
Sea as would enable it to exclude the vessels of other .powers from
that sea, or even to prohibit hunting or fishing in its waters, beyond
the ordinary territorial limits prescribed by the law of nations.
Prior to 1799 numerous rival companies or associations, maintained
by Russian capital, were engaged in trading with the native inhabitants residing on the coasts or islands of Bering Sea. Many com
plaints were made to the Emperor of cruelty and wrong practices by
those associations toward the natives. The " promyshleniki," it was
said, 1 could easily take by force what they had not the means to buy, or
what the natives did not care to sell." "Thus," says Bancroft, "for
many years matters were allowed to take their course; but toward the
end of the eighteenth century the threatened exhaustion of the known
sources of supply caused much uneasiness among the Siberian merchants engaged in the fur trade, and some of them endeavored to remedy the evil by soliciting special privileges from the Government for
the exclusive right to certain islands, with the understanding that a
fixed percentage of the gross yield—usually one-tenth—was to be paid
into the public treasury. Such privileges were granted freely enough,
but it was another matter to make the numerous half-piratical traders
respect or even pay the least attention to them." History of Alaska,
375-6. And we have the authority of a report made by a committee,
under royal permission, for saying that out of this condition of affairs
arose the necessity recognized by the Russian Government of one
strong company which "would serve ou the one hand to perpetuate
Russian supremacy there, and on the other would prevent many disorders and preserve the fur trade, the principal wealth of the country,
affording protection to the natives against violence and abuse, and
tending toward a general improvement of their condition." Hence
the creation of the Russian-American Company by the Ukase of 1799,
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to which, according to the same report, " was granted full privileges, for a period of twenty years, on the coast of Northwestern
America, beginning from latitude 55° north and including the
chain of islands extending from Kamschatka northward to America
and southward to Japan; the exclusive right to all enterprises, whether
hunting, trading, or building, and to new discoveries, with strict prohibition from profiting by any of these pursuits not only to all parties
who might engage in them on their own responsibility, but also to those
who formerly had ships and establishments there, except those who
have united with the new company." Bancroft's History of Alaska,
379; Report on Russ. Amer. Colonies, M8. vi, 13.
Undoubtedly it was intended that the Russian-American Company
should enjoy these rights and privileges without competition—that is,
exclusively, against all, whether Russian subjects or the subjects of
other countries. But the rights and privileges so granted were only
such as related to business carried on within the territorial dominion
or authority of Russia. If the translation of this Ukase, as given in
the original Oases of the two governments be the correct one, the exclusive right granted to the Russian-American Company for twenty years
was only to use and enjoy "in the above extent of country and islands
all profits and advantages derived from hunting, trade, industries,
and discovery of new. lands." If the translation embodied in the British Counter Ca-;e bo the correct one, then the grant was of au " exclusive-
right to all acquisitions, industries, trade, establishments, and discovery of new countries " throughout the " entire extent of the lands
and islands described." Neither translation supports the suggestion
that the Emperor of Russia intended to assert sovereign power over
any part of Bering Sea outside of territorial waters, and thereby interfere with the freedom of navigation in the open waters of that sea,
or with any such use of those waters by the citizens or subjects of
other countries as was sanctioned by the law of nations. He intended
only to assert an exclusive right to control, for the benefit of a particular company taken under his protection, all the profits and advantages to be derived from the business, trading, and 'industries
conducted within territorial waters and on the coasts and islands of
Russia. When the Ukase of 1799 was issued, the hunting of fur seals
in the open waters of the ocean, beyond territorial jurisdiction, was
unknown.
The only part of the Ukase of 1799 that seems to give any support 65
whatever to the opposite view are the words in the first paragraph
referring to the benefits and advantages that resulted to the Empire
from the hunting and trading carried on by the Emperor's loyal subjects
"in the northeastern seas and along the coasts of America." But
that was merely a recital—in what may, not unreasonably, be called
the preamble of the company's charter—of the fact that Russians' had
been engaged in hunting and trading, not only "along the coasts of
America," but "in the northeastern seas;" not that they had been so
engaged in those waters, to the exclusion of the citizens or subjects of
other countries rightfully engaged in commerce and navigation on the
high seas.
This is made clear by the granting clause of the company's charter,
which, referring to the discovery by Russian navigators of the northeastern .[northwestern] part of America, and of certain islands, and of
the possession held in those localities by Russia, permits the company
to have the use, (not of the northeastern seas, but) of all hunting grounds
and establishments then existing "on the northeastern [northwestern]
coast of America," from the fifty-fifth degree of latitude to Bering
Strait, " and also on the Aleutian, Kurile, and other islands, situated in
the Northeastern Ocean." And, as already stated, the exclusive right,
granted to the company, as declared in section 10, was "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."
In my judgment there is nothing in the record which even remotely,
sustains the theory that Russia intended, by the Ukase of 1799, to
assert exclusive jurisdiction over, or any sovereign control of, the
northeastern sea outside of territorial waters. The only purpose was
to give to a favored company exclusive privileges within the territory
and dominion of that nation. In respect to that Ukase, Mr. Middle-
ton, the United States Minister at St. Petersburg, who negotiated tbe
Treaty o.f 1824 wich Russia, said, in a letter to Mr. Adams that it 1 is,
in its/orw, an act purely domestic, and was never notified to. any foreign
state with injunction to respect its provisions." American State Papers,
Foreign Relations, vol. 5, p. 461.
Nor, in my judgment, is there any document or fact in the public
history .of Russia, as disclosed in the record before us, which justifies
the contention that that country asserted or exercised, prior to 1821,
exclusive jurisdiction over the waters of Bering Sea or any exclusive
rights in the seal fisheries in that sea, outside of territorial waters.
11492 5 66
This brings us to au examination of the Ukase of 1821, the provisions
of which, as well as the negotiations that arose from its promulgation,
were the subject of extended comment by counsel.
Between 1799 and 1821 the waters of Bering Sea were visited by
vessels from various countries in charge of persons engaged in the
hunting of whales, and who also carried on illicit and forbidden trade
of different kinds with the native inhabitants of Russian territories,
in violation of the established policy of the Russian Government. For
the purpose, of breaking up that trade and enforcing the policy of his
Government, the Emperor of Russia issued the following Edict, called
the Ukase of 1821:
| Observing from reports submitted to us that the trade of our subjects on the Aleutian Islands and on the northwest coast of America,
appertaining unto Russia, 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 boundary for
navigation along these coasts, and the order of naval communication
as well in these places as on the whole of the eastern coast of Siberia
and the Kurile Islands, we have deemed it necessary to determine these
communications by specific regulations which are hereto attached.
In forwarding these regulations to the directing senate, we command
that the same be published for universal information, and that the
proper measures be taken to carry them into execution."
Those regulations are entitled " Rules established for the limits of
navigation and order of communication along the coast of eastern 8ibe-
' ria, the northwest coast of America, ani the Aleutian, Kurile, and other
islands."   As given in the Cases of both Governments, they contain
among other provisions, the following:
" Sec. 1. The pursuits of commerce, whaling, and fishery, and of all
other industries, on all islands, ports, and gulfs, including the whole of
the northwest coast of America, beginning from the Bering Straits, to
the fifty first degree of northern latitude, also from the Aleutian Islands
to the eastern coast of Siberia, as well as along the Kurile Islands, from
Bering Straits to the South Cape of the Islands of Urup, viz: to the
45° 50' northern latitude, is exclusively granted to Russian subjects.
" Sec. 2. It is therefore prohibited to all foreign vessels, not only to
land on the coasts and islands belonging to Russia, as stated above,
but also to approach them within less than 100 Italian miles. The transgressor's vessel is subject to confiscation, along with the whole cargo. 67
"Sec. 3. An exception to this rule is to be made in favor of vessels
carried thither by heavy gales or real want of provisions and unable
to make any other shore but such as belongs to Russia. In those cases
they are obliged to produce convincing proofs of actual reason for such
exception. Ships of friendly governments merely on discoveries are
likewise exempt from the foregoing rule. In this case, however, they
must previously be provided with passports from the Russian minister
of the Navy.
I Sec. 4. Foreign merchant ships which, for reasons stated in the foregoing rule, touch at any of the above-mentioned coasts are obliged to
endeavor to choose a place where the Russians are settled, and to act
as hereunder stated.
I Sec. 14. It is likewise iuterdicted to foreign ships to carry on any
traffic or barter with the natives of the islands and of the northwest
coast of America in the whole extent above mentioned. A ship convicted of any trade shall be confiscated.
" Sec. 25. In case a ship of the Russian Imperial Navy, or one belonging to the Russian-American Company, meet a foreign vessel on the
above-stated coasts, in harbors or roads within the before-mentioned
limits, and the commander find grounds by the present regulation
that the ship be liable to seizure he is to act as follows:
" Sec. 26. The commander of a Russian vessel suspecting a foreign to
be liable to confiscation, must inquire and search the same, and, finding
her guilty, take possession of her. Should the foreign vessel resist he
should employ persnasion, then threats, and at last force, endeavoring,
however, at all events, to do this with as much reserve as possible. If
the foreign vessel employ force against force, then he shall consider the
same as an evident enemy, and force her to surrender according to the
naval laws."    U. S. Case, Vol. I, p. 16.
In Mr. Blaine's letter of June 30, 1890, to Sir Julian Pauncefote,
there is a translation of sections 1 aud 2 of this Ukase that differs
somewhat (though not, in my opinion, materially) from the translation
of the same sections given inthe Cases of the two Governments. The
translation followed by Mr. Blaine is as follows:
"Sec. 1. The transaction of commerce and the pursuit of whaling and
fishing, or any other industry on the islands, in the harbors and inlets?
and, iu general, all along the northwestern coast of America from
Bering Strait to the fifty-first parallel of northern latitude, and likewise on the- Aleutian Islands and along the eastern coast of Siberia,
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and on the Kurile Islands; that is, from Bering Straits to the southern promontory of the Island of Urup, viz, as far south as latitude 45° 50'
north, are exclusively reserved to subjects of the Russian Government.
" Sec. 2. Accordingly, no foreign vessel shall be allowed either to
put to shore at any of the coasts and islands under Russian dominion,
as specified in the preceding section, or even to approach the same to
within a distance of less than 100 Italian miles. Any vessel contravening
this provision shall be subject to confiscation with her whole cargo."
U. 8. Case, Vol. 1, App., 224, 226.
Does the Ukase of 1821—looking first to its words only—import an
assertion upon the part of Russia of exclusive jurisdiction over the
open waters of Bering Sea, or of exclusive rights in what are called
the seal fisheries in those' waters? If not, what was the extent and
nature of the jurisdiction so asserted?
This Ukase appears, upon its face, to be based upon reports submitted to the Emperor touching the trade of his subjects, not in Bering
Sea, but "on the Aleutian Islands and on the northwest coast of
America." The first regulation has reference to " the pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports,
and gulfs, including the whole of the northwest coast of America," and
"along the Kurile Islands." The same regulation according to the
translation given in the letter of Secretary Blaine to Sir Julian Pauncefote, refers to " the transaction of commerce and the pursuits of whaling
and fishing, or any other industry, on the islands, in the harbors and
inlets, a>id, in general, all along the northwestern coast of America."
Considering next the circumstances under which this Ukase was
issued, we find that Russia had numerous colonial establishments and
industries on certain coasts aud islands. And there were ports, gulfs,
harbors, and inlets contiguous to its possessions, and constituting part
of its territorial waters, in which foreigners carried on trade to the prejudice of the Russian-American Company and in violation of the
established policy of Russia. The Emperor, as his edict shows, claimed
that au illicit trade had been illegally carried on by foreigners with
those establishments and with the native population. He deshed
that Russian subjects alone should enjoy the benefits of those establishments, and of the industries under the control of or belonging to
Russia. It was " therefore"—that is, to that end—foreign vessels were
prohibited, not from entering Bering Sea, but from landing on the
coasts and islands of Russia named in the first regulation, or approach- 69
ing them within less than 100 Italian miles. The transgressor's vessel
and cargo would not have been subject to confiscation, under tbe regulations established, by engaging in whaling or fishing in the open
waters' outside of tbe line defined in the second regulation, namely,
100 Italian miles from the particular coasts and islands .specified in
the Ukase and regulations. Whether, therefore, reference be made to
the words of the Ukase or to the circumstances under which it was
promulgated, it is quite clear that Russia did not intend by that edict
to assert any exclusive authority over the waters of Bering Sea outside of 100 Italian miles from the coasts and islands described, in the
first regulation.
That we have properly interpreted the Ukase and regulations of
1821 is, in part, shown by the second charter granted to the Russian-
American Company, a few days after the above regulations were promulgated. That charter states that the company was established " for
carrying on industries and trade on- the mainland of Northwestern
America, on che Aleutian Islands, and on the Kurile Islands," and that
"it enjoys the privilege of hunting and fishing to the exclusion of all
other Russian or foreign subjects," not throughout Bering Sea, but
"throughout the territories long since in the possession of Russia
on the coast of Northwest America, beginning 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
this coast, and all those situated between that coast and the eastern
shore of Siberia, as well as on the Kurile Islands where the company
has engaged in the hunting down to the South Cape of the Island of
Urup, in latitude 45° 50'." This clearly indicates that the exclusive
privileges granted to the Russian-American Company had no reference
to hunting, trading, fishing, and industries in the open seas outside of
100 Italian miles from the coasts defined in the regulations of 1821^
That line was established by Russia simply as a means—and it was
deemed by the Emperor sufficient for that purpose—of preventing foreigners from coming into contact with its colonial trade and industries,
and thereby interfering with the enjoyment by the Russian-American
Company of the exclusive rights and privileges granted to it.
Turning to the diplomatic correspondence between Russia and the
United States, what do we find? This Ukase, and the regulations
promulgated in execution of it, were brought to the attention of the
governments of both the United States and of Great Britian; to the former, by M. de Poletica, the Russian minister at Washington, in an
official communication dated January 30, 1822, addressed to John
Quincy Adams, the Americau Secretary of State. Mr. Adams replied,
under date of February 25,1822, expressing, by direction of the President, his surprise at this " assertion of a territorial claim on the part
of Russia extending to the fifty-first degree of north latitude on this
continent, and a regulation interdicting to all commercial vessels other
than Russian, under the penalty of seizure and confiscation, to
approach upon the high seas within 100 Italian miles of the shore to
which that claim is made to apply." After observing that the exclusion of the vessels of citizens of the United States from the shore
"beyond the ordinary distance to which territorial jurisdiction
extends 1 had excited still greater surprise, he inquired whether the
Russian minister was authorized to give explanation of the grounds of
right, upon principles generally recognized by the laws and usages of
nations,, which could warrant the action of Russia. U. 8. Case,
Vol. 1, App., 132. It is clear that Mr. Adams did not interpret the
Ukase as asserting jurisdiction over Bering Sea, except to the extent
of 100 Italian miles from the coasts specified. Equally explicit were
the declarations of the American Minister at St. Petersburg, who in a
confidential memorandum sent to Mr. Adams, said: "Theextension of
territorial rights to the distance of 100 Italian miles upon two opposite
continents, and the prohibition of approaching to the same distance
from these coasts, or from those of all the intervening islands, are
innovations on the law of nations, and measures unexampled." American State Papers, Vol. 5, p. 452.
M. Poletica, February 28,1822, replied at some length, in justification of the edict promulgated by the Emperor of Russia. He recited
numerous facts which, in his judgment, sustained the claims of Russia
to the extent specified in the regulations for the Russian-American
Company—resting the title of his Government upon first discovery,
first occupancy, and peaceable, uncontested possession for more than
half a century prior to the independence of the United States. In
respect to the territory claimed by Russia, he said that the Imperial
Government, in assigning for limits to the Russian possessions on the
northwest coast of America, on the one side Bering Strait and on
the other the fifty-first degree of north latitude, has only made a moderate use of an incontestable right, "since the Russian navigators, who
were the first to explore that part of the American continent in 1741, 71
pushed their discovery as far north as the forty-ninth degree of north
latitude." The fifty-first degree, therefore, he said, was no more than a
mean point between the Russian establishment of New Archangel, situated under the fifty seventh degree, and the American colony at the
mouth of the Columbia, which is found under the forty-sixth degree of
the same latitude.
To what extent the Ukase was intended to interfere with the free
use of the waters outside of ordinary territorial limits, will appear in
the following extracts from the above letter of M. Poletica :
" I shall be more succinct, sir, in the exposition of the motives which
determined the Imperial Government to prohibit foreign vessels from
approaching the northwest coast of America, belonging to Russia,
.within the distance of at least 100 Italian miles. This measure, however severe it may at first view appear, is, after all, but a measure of
prevention. It is exclusively directed against the culpable enterprises
of foreign adventurers, who, not content with exercising upon the
coasts above mentioned an illicit trade very prejudicial to the rights
reserved entirely to the Russian-American Company, take upon them
besides to furnish arms and ammunition to the natives in the Russian
provinces in America, exciting them likewise, in every manner, to
resistance and revolt" against the authorities there established. The
American Government doubtless recollects that the irregular conduct
of these adventurers, the majority of whom was composed of American
citizens, has been the object of the most pressing remonstrances on the
part of Russia to the Federal Government from the time that diplomatic
missions were organized between the two countries. These remonstrances, repeated at different times, remain constantly without effect,
and the inconveniences to which they ought to bring a remedy continue to increase. * # * Pacific means not having brought any
alleviation to the just grievances of the Russian-American Company
against foreign navigators in the waters which environ the establishments ou the northwest coast of America, the Imperial Government
saw itself under the necessity of having recourse to the means of
coercion, and of measuring the rigor according to the inveterate character of the evil to which it wished to put a stop. Yet, it is easy to
discover, upon examining closely the last regulation of the Russian-
American Company, that no spirit of hostility had anything to do with
its formation. The most minute precautions have been taken in it to
prevent abuses of authority on the part of commanders of Russian il
a 111
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72
cruisers appointed for the execution of said regulation. At the same
time it has not beeu neglected to give all the timely publicity necessary to put those upon their guard against whom the measure is aimed.
Its action, therefore, can only reach the foreign vessels which, in spite
of the notification, will expose themselves to seizure by infringing upon
the line marked out in the regulation. The Government flatters itself
that these cases will be very rare; if all remain as at present appears,
not one.
"I ought, in the last place, to request you to consider, sir, that the
Russian possessions in the Pacific Ocean extend, on the northwest
coast of America, from Bering Strait to the fifty-first degree of north
latitude, aud on the opposite side of Asia and the islands adjacent
from the same strait to the forty-fifth degree. The extent of sea to
which these possessions form the limits, comprehends all the conditions
attached to shut seas ('iners ferm6es'), and the Russian Government
might consequently judge itself authorized to exercise upon this sea
the right of sovereignty, and especially that of entirely interdicting
the entrance of foreigners. . But it preferred asserting only its essential
rights, without taking any advantage of localities." British Case,
Vol. 1, App., pp. 28, 30;  U. S. Case, Vol. 1, App., 133.
Equally expUcit were the declarations made by the Russian Government, to the British Government, in an official communication, dated
November 12,1821, addressed by Baron Nicolay, the Russian Ambassador at London, to the Marquis of Londonderry, then at the head of the
British Foreign Office. After referring to the complaints which the
operations of smugglers and adventurers along the northwest coast of
America belonging to Russia have more than once given rise to, which
operations had for their object" a fraudulent commerce in furs and other
articles which are exclusively reserved to the Russo-American Company," and betrayed a purpose to excite resistance or revolt, upon the
part of the natives, to established authority, Baron Nicolay said:
"It was, therefore, necessary to take severe measures against these
intrigues, and to protect the company against the hurtful prejudices
that resulted, and it was with that end in view that the annexed regulation has just been published.
"This new regulation does not forbid foreign vessels to navigate the
seas that wash the shores of the Russian Possessions on the northwest
coast of America and the northeast coast of Asia. Such a prohibition—
which it would not have been difficult to enforce with a sufficient naval
force—would, of a truth, have been the most efficacious means of pro- 73
•yii
tecting the interests of the Russo-American Company; and, moreover,
it would appear to be based upon incontestable rights. For, on the
one hand, to remove all foreign ships, once for all, from the coast above
referred to, would be to put an end forever to the illegal operations
which it is necessary to prevent. On the other hand—considering the
Russian possessions, which extend on the northwest coast of America
from the Bering Strait to the fifty-first degree of north latitude, as
well as on the coast of Asia opposite and on the adjacent islands, from
the same strait to 45°—it can not be denied that the sea of which these
possessions form the bounds embraces all the conditions that the most
widely known and best accredited publicists have attached to the
definition of a closed sea, and that, therefore, the Russian Government
has perfect authority to exercise the rights of sovereignty over that sea
and particularly that of forbidding the approach of foreigners. Nevertheless, however important the considerations may have been that
claimed such a measure, however legitimate such a measure would in
itself have been, the Imperial Government did not wish, on this occasion, to exercise a power which is assured to it by the most sacred title
of possession, and which is, besides, confirmed by irrefragable authorities. The Government, however, limited itself—as can be seen by the
newly published regulation—to forbidding all foreign vessels not only
to land on the settlements of the American Company, and on the
Peninsula of Kamschatka and the coasts of the Okhotsk Sea, but also
to sail along the coast of these possessions, and, as a rule, to approach
them within 100 Italian miles.
I Vessels of the Imperial Marine have just been sent to see that this
arrangement is carried out. The arrangement appears to us to be as
lawful as it is urgent. For, if it is shown that the Imperial Government had strictly the right to close to foreigners that portion of the
Pacific Ocean which is bounded by our possessions in America and
Asia, a fortiori the right in virtue of which it has just adopted a much
less restrictive measure should not be called in question. This right,
in effect, is universally admitted, and all maritime powers have exercised it more or less, in their colonial system." British Case, Vol. 2,
App., p. 1.
These official declarations of the Russian Govermment through its
accredited representatives are in harmony with the words of the Ukase
of 1821. They show: (1) That the object of that Ukase was to prevent
foreigners (to use the language of M. de Poletica) "from exercising upon
ftiM \. iiM'
74
the coasts above mentioned an illicit trade very prejudicial to the rights
reserved entirely to the Russian-American Company," and from furnishing " arms and ammunition to the natives in the Russian possessions
in America," and (to use the language of Baron Nicolay) from landing
"on the settlements of the American Company, and on the Peninsula
of Kamschatka and the coasts of Okhotsk Sea, and from sailing along
the coasts of those possessions, and, as a rule, from approaching them
within 100 Italian miles." (2) That, in order to accomplish those ends,
foreign vessels were not to infringe upon " the line marked out in the
regulations," and therefore not to approach the coasts within a less
distance than that specified. (3) That while Russia claimed that it
could justly assert the rights of sovereignty over all the waters
between the North American and Asiatic Continents, from Bering Strait
to the fifty-first degree of north latitude on the American side, and
from the same strait to the forty-fifth degree of north latitude on the
Asiatic side, it limited in the Ukase of 1821 its actual assertion of
sovereignty over the waters within or inside of a certain line. It
consequently declared that the Ukase of 1821 had reference only to
the waters within 100 Italian miles from the coasts mentioned.
Additional proof of all this is found in the letter of Mr. Adams, the
American Secretary of State, of March 30, 1822, replying to the above
communication from M. Poletica, and in the latter of M. Poletica to
Mr. Adams, dated April, A. D. 1822. Mr. Adams, in his letter, said:.
I With regard to the suggestion that the Russian Government might
have justified the exercise of sovereignty over the Pacific Ocean as a
close sea, because it claims territory both on its American and Asiatic
shores, it may suffice to say that the distance from shore to shore on
this sea, in the latitude of 51 degrees north, is not less than 90 degrees
of longitude or 4,000 miles." To this M. Poletica responded : 1 In the
same manner the great extent of the Pacific Ocean at the fifty-first
degree of north latitude can not invalidate the right which Russia may
have of considering that part of the ocean as close. But as the
Imperial Government has not thought it fit to take advantage of that
right, all further discussion on this subject would be idle." U. 8.
Case, Vol. 1, App., 134, 135.
The next point in Article VI to be considered is that involved in the
inquiry:
'" How far were these claims of jurisdiction as to the seal fisheries
recognized and conceded by Great Britain f " 75
The use here of the word "jurisdiction" creates some doubt as to
the precise object of the question. But it must be assumed that the
purpose was- to ascertain whether, in the judgment of this ^Tribunal,
Great Britain recognized and conceded any claim of jurisdiction, upon
the part of Russia, over the waters of Bering Sea, or over any fisheries in that sea, outside of the ordinary limit of territorial waters.
So interpreting the question, I have no- doubt of the answer which
must be made to it. The official correspondence between the government's of Great Britain and Russia, shows that throughout the
whole of the negotiations following the Ukase of 1821, and resulting in the treaty of 1825, Great Britain stood firmly by the position, not only that the territorial jurisdiction asserted by Russia
on the northwest coast was in excess of what it was entitled to
claim, but that the prohibition by that Ukase of the approach of
foreign vessels nearer than 100 Italian miles to those coasts was
an assertion of sovereignty over the open waters of the Sea, which
was forbidden by the established principles of international law.
Let us see what was recognized and conceded by Great Britain during her negotiations with Russia.
In his communication of January 18,1822, addressed to Count Lieven,
the Russian Ambassador at London, in reply to tbe letter of Baron Nicolay, covering a copy of the Ukase of 1821, the Marquis of Londonderry,
then at the head of the British Foreign Office, said: "Upon the subject
of this Ukase generally, and especially upon the two main principles of
claim laid down therein, viz, an exclusive sovereignty alleged to belong
to Russia over the territories therein described, as also the exclusive
right of navigating and trading within the maritime limits therein set
forth, His Britannic Majesty must be understood as hereby reserving
all his rights, not being prepared to admit that the intercourse which is
allowed on the face of this instrument to have hitherto subsisted on
those coasts, aud in those seas, can be deemed to be illicit, or that the
ships of friendly powers, even supposing an unqualified sovereignty was
proved to appertain to the Imperial Crown in the vast and very imperfectly occupied territories, could, by the acknowledged laws of nations,
be excluded from navigating within the distance of 100 Italian miles as
therein laid down, from the coast, the exclusive dominion of which is
assumed (but, as His Majesty's Government conceive, in error) to belong
to His Imperial Majesty, tbe Emperor of all the Russias." British
Case, Vol. 2, App., 14.
M
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m
76
Subsequently, September 27,1822, Mr. George Canning, the successor
of Lord Londonderry, in the British Foreign Office, writing to the Duke
of Wellington, who had been commissioned to acquaint the Russian
Government with the views held by the British Government said
that with respect to the points in the Ukase which had the effect of
extending the territorial rights of Russia over the adjacent seas to
the " unprecedented 1 distance of 100 miles from the line of coast, and
of closing a hitherto unobstructed passage (through Bering Straits),
at that time the object of important discoveries for the promotion of
general commerce and navigation, those pretensions were considered
by the best legal authorities as positive innovations on the right of
navigation, and as such, could receive no explanation from further
discussion, nor by any possibility be justified. Common usage, he said,
which has obtained the force of law, had indeed assigned to coasts and
shores an accessorial boundary to a short limited distance for purposes of
protection and general convenience, in no manner interfering with the
rights of others, and not obstructing the freedom of general commerce
and navigation. But that important qualification, he observed, the
extent of Russia's claim entirely excluded, and when such a prohibition was applied to a long line of coasts, and also to intermediate
islands in remote seas, where navigation was beset with innumerable
and unforeseen difficulties, and where the principal employment of the
fisheries must be pursued under circumstances that were incompatible
with the prescribed courses, " all particular considerations concur, in an
especial manner, with the general principle, in repelling such a pretension as an encroachment outhe freedom of navigation, and the inalienable rights of all nations." He expressed satisfaction in believing
from a conference which he had had with C°nnt Lieven that upon
these two points—"the attempt to shut up the passage altogether,
and the claim of exclusive dominion to so enormous a distance from
the coast—the Russian Government are prepared entirely to waive their
pretensions."   British Case, Vol. II, App., 22.'
After receiving this letter, the Duke of Wellington, November 28,
1822, delivered to Count Nesselrode, at the head of the Russian ministry, a confidential memorandum, in which he objected first, to the
claim of sovereignty set forth in the Ukase; and, secondly, to the mode
in .which it is exercised. "The best writers on the laws of nations,"
he observed, " do not attribute exclusive sovereignty, particularly
of continents, to those who have first discovered them, and although 77
we might on good grounds dispute with Russia the priority of discovery of these continents, we contend that the much more easily
proved, more conclusive, and more certain title of occupation and use
ought to decide the claim of sovereignty." He explicitly declared
that Great Britain could not admit the right of any power possessing
the sovereignty of a country to exclude the vessels of others from
the seas on its coasts to the distance of 100 Italian miles. British
Case, Vol. II, p. 23.
The Duke of Wellington, writing on the same day to Count Li even
and repeating the objection of the British Government to the Ukase,
so far as it assumed for Russia an exclusive sovereignty in the continent of North America, observed: "The second ground on which we
object to the Ukase is that His Imperial Majesty thereby excludes from
a certain considerable extent of the open sea vessels of other nations.
We contend that the assumption of this power is contrary to the law
of nations, and we cannot found a negotiation upon a paper in which
it is again broadly asserted. We contend that no power whatever can
exclude another from the use of the open sea. A power can exclude
itself from the navigation of a certain coast, sea, etc., by its own act or
engagement, but it cannot by right be excluded by another." British
Case, Vol. II, App. 25.
I am unable to find a single sentence in all the diplomatic correspondence that took place between Russia and Great Britain, touching
the Ukase of 1821, showing, or tending to show, that Great Britain
modified, in the slightest degree the position taken by its representatives from the very outset, namely, that the maritime jurisdiction or
authority claimed by Russia, upon whatever ground rested, to the
extent of 100 Italian miles from its coasts, was inconsistent with the
law of nations. On the contrary, after the expiration of more than
two years without an agreement being reached as to the disputed
questions of maritime supremacy and territorial sovereignty, and when
serious apprehensions were felt that ho satisfactory solution of those
questions would be reached, Mr. Stratford Canning was sent by the
British Government to St. Petersburg as Plenipotentiary to effect, if
possible, a settlement of the pending dispute. He received a letter
of instructions from Mr. George Canning, in which will be fouud an
extended review of all previous efforts to accommodate the differences
between the two countries, and a full statement of the grounds upon
which Great Britain stood in respect to this Ukase.
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78
If any doubt could arise from previous correspondence as to whether
Great Britain recognized and conceded any jurisdiction upon the part
of Russia in the waters of Bering Sea, outside of ordinary territorial
limits, as those limits are defined by international law, that doubt will
be removed by the examination of the letter of Mr. George Canning to
Mr. Stratford Canning, of December 8,1824, which was after the Treaty
of 1824 between tbe United States and Russia was signed. That letter,
inclosing a projet of settlement, is too lengthy to be inserted in full here,
and the following extract from it must suffice:
" The whole negotiation grows out of the Ukase of 1821. So entirely
and absolutely true is this proposition that the settlement of the
limits of the respective possessions of Great Britain and Russia on the
Northwest coast of America was proposed by us only as a mode of
facilitating the adjustment of the difference arising from the Ukase by
enabling the Court of Russia, under the cover of a more comprehensive arrangement, to withdraw, with less appearance of concession,
the offensive pretensions of that edict. It is comparatively indifferent
to us whether we hasten or postpone all questions respecting the
limits of territorial possession on the continent of America, but the
pretensions of the Russian Ukase of 1821 to exclusive dominion over
the Pacific could not continue longer unrepealed without compelling
us to take some measure of public and effectual remonstrance
against it.   *   *
" That this Ukase is not acted upon, and that instructions have been
long ago sent by the Russian Government to their cruisers in the
Pacific to suspend the execution of its provisions, is true; but a private disavowal of a published claim is no security against the revival
of that claim. The suspension of the execution of a principle may be
perfectly compatible with the continued maintenance of the principle
itself, and when we have seen in the course of this negotiation that the
Russian claim to the possession of the coast of America down to latitude 59° rests in fact on no other ground than the presumed acquiescence of the nations of Europe in* the provisions of the Ukase published by the Emperor Paul in the year 1800 [1799], against which it
is affirmed that no public remonstrance was made, it becomes us to be
exceedingly careful that we do not, by a similar neglect, on the present occasion allow a similar presumption to be raised as to an acquiescence in the Ukase of 1821. The right of the subjects of His Majesty
to navigate freely in the Pacific can not be held as a matter of indul- 79
gence from any power.   Having once been publicly questioned it must
be publicly acknowledged.   *   *   *
"It will, of course, strike the Russian plenipotentiaries that by the
adoption of the American article respecting navigation, etc., the provision for an exclusive fishery of two leagues from tbe coasts of our
respective possessions falls to the ground. But the omission is, in
truth, immaterial. The law of nations assigns the exclusive sovereignty
of.one league to each power on its own coasts, without any specific stipulation, and though Sir Charles Bagot was authorized to sign the convention with the specific stipulation of two leagues, in ignorance of what
had been decided in the American' convention at the time, yet, after
that convention has been some months before the world, and after the
opportunity of consideration has been forced upon us by the act of
Russia herself, we can not now consent in negotiating de novo to a stipulation which, while it is absolutely unimportant to any practical good,
would appear to establish a contrast between the United States and us
to our disadvantage. Count Nessel'rode himself has frankly admitted
that it was natural that we should expect, and reasonable that we
should receive, at the hands of Russia, equal measure in all respects,
with the United States of America.
"It remains only, in recapitulation, to remind you of the origin and
principles of the whole negotiation. It is not on our part essentially a
negotiation about limits. It is the demand of the repeal of an offensive
and unjustifiable arrogation of exclusive jurisdiction over an ocean of
unmeasured extent, but a demand qualified and mitigated in its manner
in. order that its justice may be acknowledged and satisfied without
soreness or humiliation on the part of Russia. We negotiate about
territory to cover the remonstrance upon principle. But any attempt
to take undue advantage of this voluntary facility we must oppose.
If the present '■projeV is agreeable to Russia, we are ready to conclude
and sign the treaty. If the territorial arrangements are not satisfactory, we are ready to postpone them; and to conclude and sign tbe
essential part, that which relates to navigation alone, adding an article,
stipulating to negotiate about territorial limits hereafter. But we are
not prepared to defer any longer the settlement of that essential part
of the question, arid if Russia will neither sign the whole convention
nor that essential part of it, she must not take it amiss that we resort
to some mode of recording in the face of the world our protest against
the pretensions Of the Ukase of 1821, and of effectually securing our 80
own interests against the possibility of its future operation."   British
Case, Vol. 2, App., 73.
The opposition of Great Britain to Russia's claim of maritime supremacy within 100 Italian miles from the coasts mentioned in the
Ukase of 1821 was not more decided or persistent than that of the
United States. The action takeu by the United States is not irrelevant to the present discussion, because, as will presently appear, its
counsel insists that Russia's treaty of 1825 with Great Britain is to be
interpreted to mean just what the treaty of 1824 with the United States
was understood by Russia, with the knowledge of the United States,
to mean.
Referring to the reasons assigned by M. Poletica upon which Russia
based the territorial and maritime claims asserted in that Ukase, Mr.
Adams, the American Secretary of State, said, in reply: "This pretension is to be considered not only with reference to the question of
territorial right, but also to that prohibition to the.vessels of other
nations, including those of the United States, to approach within 100
Italian miles of the coasts. From the period of the existence of the
United States as an independent nation, their vessels have freely
navigated those seas, and the right to navigate them is a part of that
independence." Again: " As little can the United States accede to
the justice of the reason assigned for the prohibition above mentioned.
The rightof the citizens of the United States to hold commerce with the
aboriginal natives of the northwest coast of America, without the territorial jurisdiction of other nations, even in arms and munitions of war,
is as clear and indisputable as that of navigating the seas. That right
has never been exercised in a spirit unfriendly to Russia; and, although
general complaints have occasionally been made on the subject of this
commerce by some of your predecessors, no specific ground of charge
has ever been alleged by them of any transaction in it by which the
United States were, by the ordinary laws and usages of nations, bound
either to restrain or punish. Had any such charge been made, it would
have received the most pointed attention of this Government, with the
sincerest and firmest disposition to perform every act and obligation of
justice to yours which could have been required. I am commanded by
the President of the United States to assure you that this disposition
will continue to be entertained, together with the earnest desire that
the harmonious relations between tbe two countries may be preserved. I
81
Relying upon the assurance in your note of similar dispositions reciprocally entertained • by His Imperial Majesty towards the Umtea
States, the President is persuaded that the citizens of this Union will
remain unmolested in the prosecution of their lawful commerce, and
that no effect will be given to an interdiction manifestly incompatible
with their rights."    TJ. 8. Case, Vol. 1, App., 134.
Mr. Middleton, the American minister at St. Petersburg, writing to
Mr. Adams under date of August 8, 1822, said: "To Mr. Speransky,
Governor-General of Siberia, who had been one of the committee originating this measure, I stated my objections at length. He informed
me that the first intention had been (as M. Poletica afterward wrote
you) to declare the northern portion of the Pacific Ocean as mare
clausum, but that idea being abandoned, probably on account of its
extravagance, they determined to adopt the more moderate measure of
establishing limits to the maritime jurisdiction on their coasts, such as
should secure to the Russian American Fur Company the monopoly of
the very lucrative traffic they carry on. In order to do this they
sought a precedent and found the distance of 30 leagues named in the
treaty of Utrecht, and which may be calculated at about 100 Italian
miles, sufficient for all purposes. I replied ironically that a still better
precedent might have been pointed out to them in the papal bull of
1493, which established as a line of demarcation between the Spaniards
and Portuguese a meridian to be drawn at the distance of 100 miles
west of the Azores, and that the expression 'Italian miles' used in the
Ukase, very naturally might lead to the conclusion that this was actually
the precedent looked to. He took my remarks in good part, and I am
disposed to think that this conversation led him to make reflections
which did not tend to confirm his first impressions, for I found him
afterward at different times speaking confidentially upon the subject.
For some time past I began to perceive that the provisions of the Ukase
would not be persisted in. It appears to have been signed by the
Emperor without sufficient examination, and may be fairly considered
. as having been surreptitiously obtained. There can be little doubt,
therefore, that with a little patience and management it will be molded
into a less objectionable shape."    U. S. Case, Vol. 1, App. 136.
But this is not at all.   Mr. Adams, writing to Mr. Middleton, under
date of July 22, 1823, said:   " From the tenor of the Ukase the pretensions of the Imperial Government extend to an exclusive territorial
11492 6 82
jurisdiction from the forty-fifth degree of north latitude, on the Asiastic
coast, to the latitude of fifty-one north on the western coast of the
American continent; and they assume the right of interdicting the
navigation and the fishery of all other nations to the extent of 100
miles from the whole of the coast. The United States can admit no
part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the
peace of 1783, throughout the whole extent of the Southern Ocean,
subject only to the ordinary exceptions and exclusions of the territorial
jurisdictions, which, so far as Russian rights are concerned, are confined to certain islands north of the fifty-fifth degree of latitude, and
have no existence in the continent of America." U. 8. Case, Vol. 1,
App., 141.
As tending further to show the construction placed by the United
States upon the Ukase of 1821, and its decided opposition to the pretensions of Russia, reference may be made to the letter of Mr. Adams,
written under date of July 23,1823, to Mr. Rush, the American minister
at Loudon. In that letter Mr. Adams said: " By the Ukase of the
Emperor Alexander of the 4th (16th) of September, 1821, an exclusive
territorial right on the northwest coast of America is asserted as be;
longing to Russia, and as extending J'rom the northwest extremity of
the continent to latitude 51°, and the navigation and fishing of all other
nations afe interdicted by the same Ukase to the extent of 100 Italian
miles from the coast. When M. Poletica, the late Russian minister here,
was called upon to set forth the grounds of right conformable to the
laws of nations which authorized the issuing of this decree, he answered
in his letters of February 28 and April 2,1822, by alleging first discovery
occupancy, aud uninterrupted possession. It appears upon examination that these claims have no foundation in fact."
In the same letter, after combating these claims and referring to the
peculiar relations held by the Uu'ted States to the question of colonial
establishments on the North American continent, Mr. Adams said:
" A necessary consequence of this state of things will be that the,
American continents henceforth will no longer be subjects of colonization. Occupied by civilized independent nations, they will be accessible
to Europeans and to each other on that footing alone, aud the Pacific
Ocean in every part of it will remain open to the navigation of all
nations in like manner with the Atlantic. Incidental to the condition
of National independence and sovereignty, the rights of anterior navi- <#l
83
gation of their rivers will belong to each of the American nations within
its own territories. The application of colonial principles of exclusion,
therefore, can not be admitted by the United States as lawful on any
part of the northwest coast of America, or as belonging to any European nation. Their own settlements there, when organized as territorial governments, will be adapted to the freedom of their own institutions, and, as constituent parts of the Uniou, be subject to the principles and provisions of their constitution. The right of carrying on
trade with the natives throughout the northwest coast they (the United
States) can not renounce. With the Russian settlements at Kodiak, or
at New Archangel, they may fairly claim the advantage of a free trade,
having so long enjoyed it unmolested, and because it has been and
would continue to be as advantageous at least to those settlements as
to them. But they will not contest the right of Russia to prohibit the
traffic, as strictly confined to the Russian settlement itself and not
extending to the original natives of the coast." U.- 8. Case, Vol. 1,
App., 145, 146, 148.
Further reference to the diplomatic correspondence relating to the
the Ukase of 1821 would seem to be unnecessary. The evidence is
overwhelming that the positions taken by the United States and Great
Britain were substantially alike, namely, that Russia claimed more territory on the northwest coast of America than it had title to, either by
discovery or occupaucy, and that its interdict of the approach of foreign vessels nearer to its coasts than 100 Italian miles was contrary to
the principles of international law and in violation of the rights of the
citizens and subjects of other countries eugaged in lawful business on
the waters covered by that regulation.
The negotiations between Russia and the United States resulted in
the treaty of 1824, the material parts of which are as follows:
"Art. 1. It is agreed that in any part of the Great Ocean, commonly called the Pacific Ocean.or South Sea, the respective citizens or
subjects.of the High Contracting Powers shall be neither disturbed
nor restrained either in navigation or in fishing, or in the power of
resorting to the coasts, upon points which may not already have been
occupied for the purpose of trading with the natives, saving always,
the restrictions and conditions determined by the following articles.
| Art. 2. 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
m
m 1
84
trade, it is agreed that the citizens of the United States shall not resort
to any point where there is a Russian establishment, without the permission of the Governor or Commander; and that, reciprocally, the subjects of Russia shall not resort, without permission to any establishment of the United States upon the Northwest Coast.
"Art. 3. 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 54° 40' north
latitude; and that, in the same manner, there shall be none formed by
Russian subjects, or under the authority of Russia, south of the same
parallel.
"Art. 4. 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 may 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."    U. 8. Stat. vol. 8, p. 302.
The negotiations between Russia and Great Britain resulted in the
-treaty of 1825, as follows:
" I. It is agreed that the respective subjects of the high contracting
Parties shall not be troubled or molested, in any part of the Great Ocean,
commonly called the Pacific Ocean, either in navigating the same, in
fishing therein, or in landing at such parts of the coast as shall not
have been already occupied, in order to trade with the natives, under'
the restrictions and conditions specified in the following articles.
III. In order to prevent the right of navigating and fishing,exercised
upon the ocean by the subjects of the high contracting Parties, from
becoming the pretext of an illicit commerce, it is agreed that the sub-
jectsof His Britannic Majesty shall not land at any place where there
may be a Russian establishment, without the permission of the Governor or Commandant; and on that other hand, that Russian subjects
shall not land, without permission, at any British establishment of the
Northwest coast.
" 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: 85
Commencing from the southernmost point of the island called Prince
of Wales Island, which point lies in the parallel of 54 degrees forty
minutes, north latitude, and between tbe one hundred and thirty-first,
and the one hundred and 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 this 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 Frozen Ocean, shall form the limit between the
Russian and British possessions on the continent of America to the
Northwest.
"IV. With reference to the line of demarkation laid down in the preceding article it is understood:
First. That the Island called Prince of Wales Island shall belong
wholly to Russia.
Second. That wherever the summit of the mountains which extend
in a direction parallel to the coast, from the fifty-sixth degree of north
latitude to the point of intersection of the one hundred and forty-first
degree of west longitude, shall prove to be at the distance of more than
ten marine leagues from the ocean, the limit between tbe British possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and
which shall never exceed the distance of ten marine leagues therefrom.
IV. It is moreover agreed, that no establishment shall be formed by
either of the two parties within the limits assigned by the two preceding articles to the possessions of tbe other; consequently, British
subjects shall not form any establishment either upon the coast, or
upon tbe border of'the continent comprised within the limits of the
Russian possessions, as designated in the two preceding articles; and,
in like manner, no establishment shall be formed by Russian subjects
beyond the said limits.
u VI. It is understood that the subjects of His Britannic Majesty, from
whatever quarter they may arrive, whether from tbe ocean, or from
Im 86
the interior of the continent, shall forever enjoy the right of navigating
freely, and without any hindrance whatever, all the rivers and streams
which, in their course towards the Pacific Ocean, may cross the Tine
of demarkation upon the line of coast described in article three of the
present Convention.
" VII. It is also understood that for the space of ten years from the
signature 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,
the gulfs, havens, and creeks on the coast mentioned in article three
for the purposes offfishing and trading with the natives.
"VIII. The port of Sitka, or Nova Archangelsk, shall be open to the
commerce and vessels of British subjects for the space of ten years
from the date of the exchange of the ratifications of the present convention. In the event of an extention of this term of ten years being
granted to any other power, the like extention shall be granted also to
Great Britain.
1IX. The above-mentioned liberty of commerce shall not apply to the
trade in spirituous liquors, in fire-arms, or other arms, gunpowder or
other warlike stores; the high contracting Parties reciprocally engaging not to permit the above-mentioned articles to be sold or delivered,
in any manner whatever, to the natives of the country.
"X. Every British or Russian vessel navigating the Pacific Ocean,
which may be compelled by storms or by accident, to take shelter in
the ports of the respective Parties, shall be at liberty to refit therein,
to provide itself with all necessary stores, and to put to sea again,
without paying any other port and lighthouse dues, which shall be the
same as those paid by national vessels. In case, however, the master
of such vessel should be under the necessity of disposing of a part of
his merchandise in order to defray his expenses, he shall conform himself to the regulations and tariffs of the place where he may have
landed."
From these treaties it will be seen that the respective subjects or
citizens of the High Contracting Parties were not to be molested or
disturbed in navigating, or in fishing in, any part of the Pacific Ocean,
or in landing on the coasts of either country, not then occupied,
in order to trade with the natives, except under certain specified
conditions which have no bearing upon the present controversy. 87
We now come to the third point in Article vi of the Treaty—
Was the body of water now known as the Bering Sea included in the
phrase "Pacific Ocean," as used in the treaty of 1825 between Great
Britain and Russia; and what rights, if any, in the Bering Sea were
held and exclusively exercised by Russia after said treaty?
An affirmative answer to this question would sustain the position taken
by Mr. Blaine, to the effect that the treaty of 1825, as between Russia and
Great Britain, had reference only to the dispute in respect to the boundary-line between those countries on the northwest coast of America,
south of the 60th degree of north latitude, and to the waters of the
Pacific Ocean south of the Alaskan Peninsula, and in no way to the
waters of Bering Sea, or to the Ukase of 1821 in its application to
the waters of that Sea. If that position was well taken, it might be
fairly contended that Great Britain by signing the treaty of 1825,
impliedly recognized, or determined not to further question, the validity of the Ukase of 1821 in its application to the waters of Bering Sea,
for the distance of 100 Italian miles from its shores and islands in
that sea. But if "Pacific Ocean" in the treaty of 1825 embraced
Bering Sea, it would follow that that treaty had the effect to annul or
withdraw that Ukase, so far as it asserted authority in Russia to molest
or disturb the subjects of Great Britain in navigating, or fishing
in, any of the open waters of Bering Sea or of the north Pacific
Ocean.
It will be observed that there is no substantial difference between
the treaties of 1824 and 1825, in respect to the description given of the
waters in which the citizens or subjects of the High Contracting Parties
were to enjoy freedom of navigation and fishing. The words in the
treaty of 1824, "the Great Ocean, commonly called the Pacific Ocean
or South Sea," evidently describe the same waters as the words, "the
Great Ocean, commonly called the Pacific Ocean," in the treaty of 1825.
Before the latter treaty was negotiated the British Government had in
its possession a copy of the treaty between Russia and the United States.
Mr. George Canning, in his letter of December 8th, 1824, referring to a
projet proposed by Great Britain, and which Russia rejected, and to a
counter projet proposed by Russia which Great Britain had rejected,
said that the stipulation for free navigation in the Pacific stood in the
front of the Convention concluded between Russia and the United States
of America; that no reason existed why upon similar claims Great Britain 88
should not obtain exactly the like satisfaction; that for reasons of the
same nature Great Britain could not consent that the liberty of navigation through Bering Straits be stated in the treaty as a boon
from Russia; that the tendency of such a statement would be to give
countenance to those claims of exclusive jurisdiction against which
Great Britain on its own behalf, and on that of the whole civilized world,
protested. No specification of this sort, he said, was found in the Convention with the United States of America, and yet it could not be
doubted that the Americans considered themselves as secured in the
right of navigating Bering Straits and the sea beyond them. " It can
not be expected," he said, "that England should receive as a boon
that which the United States hold as a right so unquestionable as
not to be worth recording. Perhaps the simplest course after all will
be to substitute, for all that part of the 'projet' and 'counter projet7
which relates to maritime rights and to navigation, the first two articles
of the convention already concluded by the court of St. Petersburg
with the United States of America in the order in which they stand
in that convention. Russia can not mean to give to the United States
of America what she withholds from us; nor to withhold from us anything that she has consented to give to the United States. The uniformity of stipulations in pari materia gives clearness and force to
both arrangements, and will establish that footing of equality between
the several coutracting parties which it is most desirable should exist
between three powers whose interests come so nearly in contact with
each other in a part of the globe in which no other power is concerned."
British Case, Vol. 2, App., 73.
In view of these and similar declarations by British representatives,
made before the negotiation of the treaty of 1825, it is earnestly contended that that treaty must receive the same interpretation that would
be given to the treaty of 1824 as construed by Russia and the United
States. And it is said that Russia and the United States, before the
ratification of the treaty of 1824, substantially agreed that that treaty
did not refer to the waters of Bering Sea, and, consequently, it is
argued, "Pacific Ocean," as used in both treaties, must be held not to
include that Sea.
The facts upon which these contentions, in respect to the treaty of
1824, are based, may be thus summarized:
The treaty of 1824 was signed at St. Petersburg April 5 (17), 1824. 89
Shortly thereafter the Russian-American Company represented to the
Russian Government that consequences injurious to its rights might
result from its ratification. The subject was referred by the Emperor
to a committee, at the head of which was Count Nesselrode. That
committee, July 21,1824, made a report, which received the approval of
the Emperor. After enumerating the advantages that would accrue to
Russia from carrying out the treaty, the report proceeds: " 7. That as
the sovereignty of Russia over the coasts of Siberia and the Aleutian"
Islands has long been admitted by all the powers, it follows that the
said coasts and islands can not be alluded to in the articles of the said
treaty, which refers only to the disputed territory on the northwest
coast of America and to the adjacent islands; that, even supposing
tbe contrary, Russia has established permanent settlements, not only
on the coast of Siberia but also on the Aleutian group of islands;
hence, American subjects could not, by virtue of the second article of
the treaty of April 5-17 land at the maritime places there, nor carry
on sealing and fishing without the permission of our commandants or
governors. Moreover, the coasts of Siberia and the Aleutian Islands
are not washed by the Southern Sea, of which alone mention is made
in the first article of the treaty, but by the Northern Ocean and the
seas of Kamchatka and Ohkotsk, whieh form no part of the Southern
Sea on any known map or in any geography. 8. Lastly, we must not
lose sight of the fact that, by the treaty of April 5-17 all the disputes
to which the regulations of September 4 (16), 1821, gave rise, are terminated, which regulations were issued at the formal and reiterated
request of the Russian-American Company; that those disputes had
already assumed important proportions, and would certainly be renewed
if Russia did not ratify the treaty, in which case it would be impossible
to foresee the end of them or their consequences. These weighty
reasons impel the majority of the members of the committee to state
as their opinion:
" That the treaty of April 5-17 must be ratified, and that, for tbe prevention of any incorrect interpretation of that act, Gen. Baron Tuyll
may be instructed at the proper time to make tbe declaration mentioned in the draft of the communication read by Count Nesselrode.
The Miiuster of Finance and Acting State Counselor 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 proctocol,
to the effect that Baron Tuyll should be instructed at the exchange of 90
the ratification of that treaty to stipulate that the right of free hunting
and fishing granted by the twelfth article of the said treaty shall extend
only from 54° 40' to the latitude of Cross Sound." U. S. Counter
Case, 156,157.
This report was communicated by the Russian Minister of Finance
to the Russian-American Company, in a communication which closed
with these words: "From these documents the board will see that, for
the avoidance of all misunderstandings in the execution of the above
mentioned convention, and in conformity with the desire of the company, the necessary instructions have already been given to Baron
Tuyll, our minister at Washington, 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' northwards to Vakutat (Bering)
Bay."    U. 8. Counter Case, 155.
The instructions received by Baron Tuyll from his Government were
communicated by him informally to Mr. Adams, the American Secretary of State. This appears from the Diary of Mr. Adams, under date
of December 5,1824, at which time the treaty of 1824 had not been
approved by the United States Senate. The account which Mr. Adams
gives in his Diary of Baron Tuyll's interview with him, is as follows:
16th, Monday.—Baron Tuyll, the Russian Minister, wrote me a note
requesting an immediate interview, in consequence of instructions
received yesterday from his court. He came, and after intimating that
he was under some embarrassment in executing his instructions, said
that the Russian American Company, upon learning tbe purport of tbe
northwest coast convention, concluded last June by Mr. Middleton, were
extremely dissatisfied ("a jet6 des-hauts cris'?), and by means of their
influence had prevailed upon his Government to send him these instructions upon two points. One was, that he should deliver, upon
the exchange of the ratifications of the convention, an explanatory
note, purporting that the Russian Government did not understand that
the convention would give liberty to the citizens of the United States
to trade on the coasts of Siberia and the Aleutian Islands. Tbe other
was, to propose a modification of the convention by which our vessels
should be prohibited from trading on the northwest coast north of
latitude 57. With regard to the former of these points he left with
me a minute in writing. 91
"I told him that we should be disposed to do everything to accommodate the views of his Government that was in our power, but that a
modification of the convention could be made no otherwise than by a
new convention, and that the construction of the convention as con-
eluded belonged to other departments of the Government, for which
the Executive had no authority to stipulate; that it on the exchange
of the ratifications he should deliver to me a note of the purport of that
which he now informally gave me, I should give him. an answer of that
import, namely, that the construction of treaties depending here upon
the judiciary tribunals, the Executive Government, even if disposed to
acquiesce in that of the Russian Government as announced by him,
could not be binding upon the courts nor upon this nation. I added
that the convention would be submitted immediately to the Senate;
that if anything affecting its construction, or, still more, modifying its
meaning, were to be presented on the part of the Russian Government
before or at the exchange of ratifications, it must be laid before the
Senate, and could have no other possible effect than of starting doubts
and perhaps hesitation in that body, and of favoring the views of those,
if such there were, who might wish to defeat the ratification itself of
the convention. This was an object of great solicitude to both Governments, not only for the adjustment of a difficult question which had
arisen between them, but for the promotion of that harmony which was
so much in the policy of the two countries, which might emphatically
be termed natural friends to each other. If, therefore, he would permit me to suggest to him what I thought would be his best course, it
would be to wait for the exchauge of the ratifications aud make it purely
and simply; that afterwards, if the instructions of his Government were
imperative, he might "present the note, to which I now informed him
what would be in substance my answer. It necessarily could not be
otherwise. But if his instructions left it discretionary with him, he
would do still better to inform his government of the state of things
here, of the purport of our conference, and of what my answer must be
if he should present the note. I believed his court would then deem
it best that he should not present the note at all. Their apprehensions
had been excited by an interest not very friendly to the good understanding between the United States and Russia. Our merchants
wbuld not go to trouble the Russians On the coast of Siberia or north
of the fifty-seventh degree of latitude, and it was wisest not to put 92
such fancies into their heads. At least, the Imperial Government
might wait to see the operation of the convention before taking any
further step, and I was confident they would hear no complaint resulting from it. If they should, then would be the time for adjusting the construction or negotiating a modification of the convention; and whoever
might be at the head of the administration of the United States, he
might be assured that every disposition would.be cherished to remove
all causes'of dissatisfaction and to accommodate the wishes and the
just policy of the Emperor.
" The Baron said th at these ideas had occurred to himself; that he had
made this application in pursuance of his instructions, but he was
aware of the distribution of powers in our Constitution and of the
incompetency of the Executive to adjust questions. He would, therefore, wait for the exchange of the ratifications without presenting
his note, and reserve for future consideration whether to present it
shortly afterwards or to inform his court of what he had done and ask
their further instructions as to what he shall definitively do on the subject. He therefore requested me to consider what had now passed
between us as if it had not taken place (" non a venu"), to which I readily
assented, assuring him, as I had done heretofore, that the President
had the highest personal confidence iu him and in his exertions to foster
the harmony between the two countries. I reported immediately to the
President the substance of this conversation, and he concurred in the
propriety of the baron's final determination." Memoirs of John Quincy
Adams, Vol. 6, p. 435.
In conformity (it may be assumed) with Mr. Adams' advice or intimations Baron Tuyllforebore to file any official note upon the subject
prior to the ratification of the treaty by the United States. The
treaty having been ratified January 15, 1825, and January 25, 1825,
Baron Tuyll, under instructions from his Government, filed in the
Department of State, the following Explanatory Note:
I Explanatory note to be presented to the Government of the United
States at the time of the exchange of ratifications, with a view to
removing with more certainty all occasion for future discussions, by
means of which it will be seen that the Aleutian Islands, the coast of
Siberia, and the Russian possessions in general on the northwest coast
of America to 59° 30' of north latitude are positively excepted from
the liberty of hunting, fishing, and commerce stipulated in favor of
citizens of the United States for ten years. 93
"This seems to be only a natural consequence of the stipulations
agreed upon, for the coasts of Siberia are washed by the Sea of
Okhotsk, the Sea of Kamschatka, and the ley Sea, and not by the
South Sea mentioned in the first article of the convention of April 5
(17), 1824. The Aleutian Islands are also washed by the Sea of Kamschatka, or Northern Ocean.
"It is not the intention of Russia to impede the free navigation of
the Pacific Ocean. She would be satisfied with causing to be recognized, as well as understood and placed beyond all manner of doubt,
the principle that beyond 59° 30' no foreign vessel can approach her
coasts and her islands, nor fish nor bunt within the distance of two
marine leagues. This will not prevent the reception of foreign vessels
which have been damaged or beaten by storm." U. 8. Case, Vol. l,App.,
275', Memoirs of John Quincy Adams, Vol. 6, p. 435.
In respect to these matters Mr: Blaine observed: "Of course bis
(Baron Tuyll's) act at that time did not affect the text of the treaty,
but it placed in the hands of the Government of the United States an
unofficial note which significantly told what Russia's construction of
the treaty would be if, unhappily, any difference as to its meaning
should arise between the two governments. But_Mr. Adams' friendly
intimation removed all danger of dispute, for it conveyed to Russia the
assurance that the treaty as negotiated contained, in effect, the provisions which the Russian note was designed to supply. From that
time until Alaska, with all its rights of land and water, was transferred to the United States—a period of forty-three years—no actor word
on the part of either government ever impeached the full validity of the
treaty as it was understood both by Mr. Adams and Baron Tuyll at the
time it was formally proclaimed. While these important matters were
transpiring in Washington negotiations between Russia aud England
(endiug in the treaty of 1825) were in progress in St. Petersburg. The
instructions to Baron Tuyll concerning the Russian-American treaty
were fully reflected in the care with which the Anglo-Russian treaty
was constructed—a fact to which I have already adverted in full.
There was, indeed, a possibility that the true meaning of the treaty with
the United States might be misunderstood, and it was. therefore, the
evident purpose of the Russian Government to make the treaty with
England so plain and so clear as to leave no room for doubt and to
baffle all attempts at misconstruction. Tbe Government of the United
States finds" the full advantage to it in the caution taken by Russia in
I
IstM
ail 94
1825, and can, therefore, quote the Anglo-Russian treaty with the utmost
confidence that its meaning can not be changed from that clear, uumis-
takable text which throughout all the articles sustains the American
contention. The Explanatory Note filed with this Government by Baron
Tuyllis so plain in its text that after the lapse of sixty-six years the exact
meaning can neither be misapprehended nor misrepresented. It draws
the distinction between the Pacific Ocean and the waters now known
as the Bering Sea so particularly and so perspicuously that no answer
can be made to it. It will bear the closest analysis in every particular.
It is not the intention of Russia to impede the free navigation of the
Pacific Ocean. This frank and explicit statement shows with what
entire good faith Russia had withdrawn in both treaties the offensive
Ukase of Alexander so far as the Pacific Ocean was made subject to it.
Another avowal is equally explicit, viz, that the coast of Siberia, the
northwest coast of America to 59° 30' north latitude—that is, down to
59° 30', the explanatory note reckoned from north to south—and the
Aleutian Islands are positively excepted from the liberty of hunting,
fishing, and commerce, stipulated in favor of citizens of the United
States for ten years."    U. S. Case, Vol. I, App., 277, 278.
It seems to me that the interview between Baron Tuyll and Mr.
Adams is of far less consequence than that attached to it by Mr. Blaine.
Nor, in my judgment, are the inferences which he draws from it justified by the facts as disclosed by the Russian documents and by the
Diary of Mr. Adams.
Recurring to the treaty of 1824, it will be remembered that Article 1
secured to the respective citizens and subjects of the contracting
powers freedom of navigation and fishing in every part of the Great
Ocean commouly called the Pacific Ocean, or South Sea, and also the
right to resort to coasts upon points not then occupied for the purpose
of trading with the natives, subject to or saving the restrictions aud
conditions prescribed in" the succeeding aricles. Among those conditions were: 1. By Article II, citizens of the United States should
not resort to any point where there was a Russian establishment
without the permission of the Government or commander, and the
subjects of Russia should not resort, without permission, to any establishment of the United States upon the northwest coast. 2. By
Article III, neither the United States nor its citizens should form
any establishment upon the northwest coast of America, nor in tbe
islands adjacent, to the north of fifty-four degrees and forty minutes of 95
north latitude, and that, in the same manner, there shall be none
formed by Russian subjects or under the authority of Russia south of
the same parallel. But by Article IV it was provided that for a period
often years the ships of either country might frequent the interior
seas, gulfs, harbors, and creeks, upon the coast mentioned in tbe preceding article, for the purpose of fishing and trading with the natives
of the country.
Now it is apparent from the proceedings of the Nesselrode conference of July 21, 1824, the Diary of Mr. Adams, and the Explanatory
Note of Baron Tuyll, that the Russian-American Company were uot at
all disturbed by tbe broad recognition in Article I of freedom of navigation and fishing throughout the whole of the Great Ocean. Their
uneasiness had reference to the possibility that the treaty could be
construed as giving the right for ten years to trade on the coast of
Siberia;and the Aleutian Islands. The substance of the answer made
by the Russian Government to the Russian-American Company was
that the article of the treaty reserving the right to resort for ten years
to certain "interior seas, gulfs, harbors, aud creeks" referred to the
waters that washed the coast mentioned in Article III, which was
the coast most in dispute between the two countries, and, therefore,
did not authorize citizens of the United States to trade on the coasts
of Siberia aud the Aleutian Islands which were never in dispute, and
over which Russia for a long time, and without question, had exercised
sovereign authority; in other words, that the privilege of trading for
ten years did not extend to the coast of Siberia, or to the Aleutian
Islands, or to the Russian possessions in general on the entire northwest coast of America, but'only to the coasts, embracing the territory
iu dispute between the two countries, south of 59° 30' north latitude.
Nowhere in the documents referred to is there a suggestion that Russia understood the treaty of 1824 as reserving to itself any peculiar or
paramount authority over the waters of the Pacific Ocean outside of tbe
ordinary limit of territorial jurisdiction. The only part of any document implying that, in the judgment of the Russian authorities, the
treaty had no reference to Bering Sea, is the statement incidentally
in the proceedings of the Nesselrode Conference and in the Explanatory
Note of Baron Tuyll, to the effect that the coasts of Siberia and the
Aleutian Islands were not washed " by the Southern Sea" mentioned
in Article II. But there is no evidence in Mr. Adams's Diary that he
assented to this view.   He waived any discussion of tbe question. M
96
It was impossible for him to have assented to the views of Baron Tuyll
except upon the theory that he recognized the treaty of 1824 as having
no reference at all to the waters of the Bering Sea as part of the Great
Ocean commonly called the Pacific Ocean or South Sea, a conclusion at
variance with all that he contended for throughout the negotiations
arising from the Ukase of 1821. In my opinion, Mr. Blaine was mistaken
in saying that Mr. Adams expressed bis concurrence iu Baron Tuyll's
interpretation of tbe treaty of 1824. It is, I think, quite clear that Mr.
Adams prudently withheld any expression of his opinion, disclaiming
authority in himself or in the President of the United States to change
or give any binding interpretation of the treaty. He frankly stated to
Baron Tuyll that the treaty as made must, when ratified, be carried out
according to its proper interpretation and meaning. He warned him
that if, on the exchange of the ratifications, he should deliver a note of
the purport of that informally delivered, he, Mr. Adams, should tell
him I that the construction of treaties depending here upon the judiciary tribunals, the Executive Government, even if disposed to acquiesce in that of the Russian Government as announced by him, could
not be binding upon the courts nor upon this nation." Baron Tuyll
distinctly said that he understood the relations subsisting in America between the executive and judicial departments of Government.
So that the utmost that can be said is, that the United States had notice,
before the ratification of the treaty of 1821, of the interpretation which
Russia, possibly, at some future time, would place upon the treaty, "so
far as it embraced the subject to which Baron Tuyll referred in his
Explanatory Note.
The material inquiry, however, is whether Great Britain had any
notice of what took .place in the interview between Baron Tuyll and
Mr. Adams. This question must be answered in the negative. It is
not claimed that the Explanatory Note of Baron Tuyll was ever published-or brought to light from the files of the State Department of
the United States until it was produced in this case. Nor is it pretended that a copy of it was ever sent to Great Britain. The only
document relied upon to show knowledge upon the part of Great
Britain of the interpretation placed by the United States upon the
treaty of 1821 is the letter of Mr. Addiugton, the British representative at Washington, written August 2,1S24, to Mr. George Canning. Mr.
Addiugton said: "A convention concluded between this Government
and that of Russia for the settlement of the respective claims of the Til
97
two nations to the intercourse with the northwestern coast of America
reached the Department of State a few days since. The main points
determined by this instrument are, as far as I can collect from tbe
American Secretary of State, (1) the enjoyment of a free and unrestricted intercourse by each nation with all the settlements of the other
on the northwest coast of America, and (2) a stipulation that no
new settlements shall be formed by Russia south, or by the United
States north, of latitude 51° 40'. The question of the mare clausum,
the sovereignty over which was asserted by the Emperor of Russia
in his celebrated Ukase of 1821, but virtually, if not expressly, renounced by a subsequent declaration of that sovereign, has, Mr.
Adams assures me, not been touched upon in the above-mentioned
treaty. Mr. Adams seemed to consider any formal stipulation recording that renunciation as unnecessary and supererogatory." British
Case, App. Vol. 2, p. 66.
It is to be observed, in reference to this letter, that it was written
many months prior to the interview with Baron Tuyll, and only a few
days after the treaty of 1824 had reached the United States Department of State. Besides, if the writer of that letter understood Mr.
Adams to say that the question of free navigation and fishing by the
citizens and subjects of Russia and the United States in the Pacific
Ocean had "not been touched upon in the treaty" of 1824, it is clear
that he must have wholly misapprehended the observations of the
American Secretary of State. The treaty, upon its face, shows just the
contrary. M. de Poletica, it will be remembered, at the very outset of
the negotiations between Russia and the United States, expressly
waived the question of the right of Russia to regard the whole sea
between the North American and Asiatic continents north of 51°
north latitude on one side and 45° north latitude on the other side,
as a "shut sea," and only insisted upon Russia's right, as a means
of protecting its colonial industries and trade, to prevent foreign
vessels from coming nearer to her coasts that 100 Italian miles. If Mr.
Adams said to Mr. Addiugton that the question of mare clausum had
not been touched upon in the treaty of 1824 he meant only that the
question of mare clausum, or "shut sea," as stated in its broadest
aspect, but expressly waived, by M. Poletica, had not been specifically
disposed of by that treaty. He could not have said that the right of
the subjects and citizens of the two countries to freely navigate and
fish in the open waters of the sea was left untouched by the treaty of
1824.
11492 7 98
That Great Britain signed the treaty of 1825 without any knowledge
that the treaty of 1824 would be interpreted otherwise than by its
words, according to their natural signification, is shown by the letter
of Mr. Stratford Canning (who negotiated the treaty of 1825) to Mr.
George Canning, under date of April 3-15, 1825, in which he said:
"Referring to the American treaty, I am assured as well by Count
Nesselrode as by Mr. Middleton [the American minister at St. Petersburg] that the ratification of that instrument was not accompanied by
any explanations calculated to modify or affect in any way the force
and meaning of its articles. ButT understand that at the close of tbe
negotiation of that treaty a protocol, intended by the Russians to fix
more specifically the limitations of the right of trading with their possessions, and understood by the American envoy as having no such
effect, was drawn up and signed by both parties. No reference whatever was made to this paper by the Russian plenipotentiaries in the
course of my negotiations with them; and you are aware, sir, that the
articles of the convention which I concluded depend for their force
entirely on the general acceptation of the terms in which they are
expressed." It does not appear that any such protocol was ever, in
fact, executed; at any rate, we have no evidence that it was executed.
If this were a case between the United States and Russia, involving
the question as to whether the treaty of 1824, in using the words
"Pacific Ocean," covered the waters of Bering Sea, other considerations might possibly arise than those which must determine that question under the treaty of 1825 with Great Britain. Here the inquiry is
whether Great Britain and Russia in that treaty referred to " Pacific
Ocean" as including Bering Sea. And that inquiry can only be determined, apart from the words of the treaty itself, by what passed between
the representatives of those two countries during the negotiations
resulting iu the treaty between them, of which the only evidence is
found in the letters and official documents having reference to those
negotiations.
Did Russia and Great Britain intend that Article I of the treaty of
1825, by which those powers agreed that their respective subjects
" shall not be troubled or molested in any part of the Great Ocean commonly called the Pacific Ocean, either in navigating the same or in
fishing therein," should be applicable to Bering Sea? Did either Government at the time the negotiations were opened, or when the treaty
was concluded, regard Bering Sea as outside of the ocean " commonly
L 99
called the Pacific Ocean"? In view of the grounds upon which Great
Britain, during negotiations extending over three years, steadily rested
its objections to the Ukase of 1821, can it be presumed or supposed
that she intended to leave that Ukase in force as. to the waters of Bering Sea and thereby recognize the right of Russia to prohibit British
vessels from approaching any of the coasts of that sea nearer than 100
Italian miles?
It seems to me that these questions must all be answered in the
negative. What waters, according to the understanding of Russia, at
the date of the treaty, were in fact embraced in the Pacific Ocean ?
Upon this point there is scarcely room for doubt. In the letter of
Baron Nicolay, dated November 12,1821, in which he gave notice to,
the British Government of the Ukase of 1821, he states that the possessions of Russia " extend on the northwest coast of America from the
Bering Strait to the fifty-first degree of north latitude, as well as on
the coast of Asia opposite and on the adjacent islands, from the same
strait to forty-five degrees," and that if " the Imperial Government had
strictly the right to close to foreigners that portion of the Pacific
Ocean which is bounded by our possessions in America and Asia, a
fortiori, the right in virtue of which it has just adopted a much less
restrictive measure should not be called in question." In the letter,
already referred to, of February 28,1822, in which M. Poletica stated
fully the grounds upon which Russia based the Ukase of 1821, he
stated that the first discoveries of Russia on the northwest coast of
America went back to the time of Peter I, and belonged to the attempt
made towards the end of his reign " to find a passage from the Icy Sea
into the Pacific Ocean"; implying that the Icy Sea, which is now
known as the Arctic Ocean, was connected with the Pacific Ocean.
In the same letter, iu which he describes the limits assigned to Russian
possessions by the Ukase of 1821, M. Poletica states that "the Russian
possessions in the Pacific Ocean extend on the northwest coast of
America from Bering Strait to the fifty-first degree of north latitude, and
on the opposite side of Asia and the islands adjacent from the same strait
to the forty-fifth degree." It thus appears that,Russia, by its representatives, iu language too clear to admit of doubt as to its meaning,
regarded all of its possessions on the northwest coast of America,
extending from Bering Strait to the fifty-first degree of north latitude,
as being on the Pacific Ocean.
It is equally clear that Great Britain so understood the matter.   In 100
no dispatch emanating from the British Foreign Office is there anything indicating that, in its judgment, Bering Sea was not a part of
the Great Ocean commonly called the Pacific Ocean, or that its Government was concerned simply about navigation and fishing in the
waters south of the. Alaskan Peninsula, which washed the shores of the
particular territory, limited in extent, and then in dispute between that
country and Russia. On the contrary, in the projet of a convention
which Mr. George Canning, on the 12th of July, 1824, prepared for the
consideration of Russia, it distinctly appears that Great Britain contemplated a treaty covering all the coasts aud waters on the North
American coast from Bering Strait southward. Article I in that
draft provided: "It is agreed between the high contracting parties
that their respective subjects, shall enjoy the right of free navigation
along the whole extent of the Pacific Ocean, comprehending the sea
within Bering Straits, and shall be neither troubled nor molested in
carrying on their trade and fisheries, in all parts of the said ocean,
either to the northward or southward thereof; it being well understood
that the said right of fishery shall not be exercised by the subjects of
either of the two powers nearer than two marine leagues from the
respective possessions of the other."
In his letter inclosing this projet to Sir Charles Bagot, the British
minister at St. Petersburg, Mr. Canning said: "Your Excellency
will observe that there are but two points Which have struck Count
Lieven as susceptible of any question. The first is the assumption
of the base of the mountains, instead of the summit, as the line
of boundary; the second, the extension of the right of the navigation of the Pacific to the sea beyond Bering Straits. As to the
second point, it is, perhaps, as Count Lieven remarks, new. But
it is to be remarked, in return, that the circumstances under which
this additional security is required will be new also. By the territorial
demarcation agreed to in this 'projet', Russia will become possessed,
in acknowledged sovereignty, of both sides of Bering's Straits. The
power which could think of making the Pacific a mare clausum may not
unnaturally be supposed capable of a disposition to apply the same
character to a strait comprehended between two shores of which it
becomes the undisputed owner; but the shutting up of Bering
Straits, or the pqwer to shut them up hereafter, would be a thing not
to be tolerated by England. Nor could we submit to be excluded,
either positively or constructively, from a sea in which the skill and sci- 101
ence of our seamen has been and is still employed in enterprises interesting not to this country alone, but to the whole civilized world. The
protection given by the convention to the American coasts of each
power may (if it is thought necessary) be extended in terms to the
coasts of the Russian Asiatic territory; but in some way or other, if
not in the form now prescribed, the free navigation of Bering's Straits
and of the seas beyond them must be secured to us." British Case,
Vol. 2, App. 65.
Of course Mr. Canning, when he framed the above draft of a convention regarded the waters immediately south of "the sea within Bering Strait" as part of the Pacific Ocean. The same draft shows that
he contemplated the settlement of the rights of the two nations on the
entire coasts and in all the waters south of Bering Strait. And such
evidently was the purpose of Russia, which offered a comiteT-projet of a
convention, to settle, " according to the principle of mutual accommodation, the boundary between their possessions and settlements on the
northwest coast of America, as well as. divers questions relating to
commerce, navigation, and fishing by their respective subjects in the
Pacific Ocean." After defining the line of demarcation between the
possessions of the two high contracting parties on the northwest coast
of America and the adjacent islands, and according to the vessels and
the subjects of the two powers the right in the possessions of the two
powers, as defined, for ten years " to freely frequent the gulfs, harbors,
and creeks in -those parts of the islands and of the coast which are not
occupied by either Russian or English settlements, and there to engage
in fishing and commerce with the natives of the country," the Russian
counter-projet proceeds: "Art. IV. In future no settlement shall be
formed by His Britannic Majesty's subjects within the limits of Russian
possessions set out in Articles I and II, and, in like manner, none shall
be formed by the subjects of His Majesty the Emperor of all tbe Russias
outside of the said limits. Art. V. The High Contracting Parties stipulate moreover, that their respective subjects will have the right to
freely navigate the whole extent of the Pacific Ocean, both towards the
north and south, without any hindrance whatever, and that they will
enjoy the right of fishery in the high seas, but that this latter right shall
never be exercised within a distance of two marine leagues from the
coast or possessions—whether Russian or British. Art. VI. His Majesty
the Emperor of all the Russias, being anxious to give a special proof of
his regard for the interests of His Britannic Majesty's subjects, and to 102
Ik;
If
iii?
render more useful the success of the enterprises which will eventually
result in the discovery of a passage on the north of the American continent, consents that the freedom of navigation mentioned in the preceding article shall apply, under the same conditions, to Bering Strait,
and to the sea situated to the northward of said strait. Art. VII. Any
Russian or British ships navigating the Pacific Ocean and the sea
above mentioned that may be obliged, by storms or by damages, to
take refuge iu the respective ports of the High Contracting Parties,
shall be allowed to refit therein, and to take aboard everything necessary, and to sail away again freely, without paying any other charges
than port and lighthouse dues, which shall be the same as those paid
by national vessels."   British Case, Vol. 2, App., 68, 69.
Is it not apparent from this counte,r-j>rq;'e£ that Russia regarded
the "sea situated to the northward" of Bering Strait, that is, the Arctic
Sea, as being separated from the Pacific Ocean only by the waters of
that Strait, and therefore that what is now called Bering Sea was
regarded by the Government of that country as part of the Pacific
Ocean? If Russia did not then regard Bering Sea as a part of the
Pacific Ocean, it would follow that the privilege given by Article VII
of the Goxmtev-projet to "Russian or British ships navigating tbe
Pacific Ocean and the sea above mentioned" (the sea north of Bering
Strait) to-take temporary refuge, iu case of storms or damage, in the
respective ports of the two countries, could not be exercised by a
British vessel navigating Bering Sea. A purpose to make such a distinction ought not to be imputed to Russia. It ought not to be supposed that Russia intended to assent to the navigation by British
vessels of Bering Strait and the sea to the northward of it, and yet
restrict the right of navigation in the waters immediately south of
Bering Strait. This supposition is entirely inconsistent with the
declaration in the coxmbev-projet that the treaty which the two governments were seeking to negotiate had in view the settlement of questions relating to commerce, navigation, and fishing by their respective
subjects " in the Pacific Ocean."
The documentary evidence to which we have referred all tends to show
that Great Britain was chiefly concerned about the assumption by Russia, in the Ukase, of 1821, of exclusive dominion over the Pacific Ocean,
and that it regarded the question of territorial limits on the continent
of America as subordinate and relatively unimportant. It earnestly
sought the repeal of an edict that asserted " exclusive juiisdiction over 103
an ocean of unmeasured extent." It withdrew its offer to establish
"an exclusive fishery of two leagues from the coasts" of the respective
countries, and suggested that one league to each power on its own
coasts, as recognized by the law of nations, would suffice aud was all
that she would admit.
Not long after this letter of December 8, 1824, the treaty between
Russia and Great Britain, in the form above given, was signed. Mr.
Stratford Canning, in the letter informing Mr. George Canning of that
fact, said, among other things': "With respect to Bering Straits I
am happy to have it in my power to assure you, on the joint authority
of the Russian plenipotentiaries, that the Emperor of Russia has no
intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas north of them." Is it to be supposed
that the British plenipotentiary understood Russia as asserting or
reserving exclusive rights in the sea south of those straits ?
In view of this array of documentary evidence the Tribunal is asked
to find that the treaty of 1825 used the words "Pacific Oceau" as
embracing only the waters of Bering Sea. If we so declare, then our
finding will, in effect, be a declaration that although Great Britian, during negotiations covering several years, persistently demanded the
abrogation of an edict asserting for Russia the right to establish a line
100 Italian miles from its shores, washed by seas too vast in extent and
too immediately connected with the great oceans of the world to come
under the exclusive jurisdiction of any nation, she finally agreed to
withdraw her opposition to that assumption of jurisdiction so far as
it related to Bering Sea, more than 1,000 miles in length and more
than 1,200 miles in width; and this notwithstanding.in no part of the
voluminous correspondence preceding the treaty of 1825 is there one
word that expressly, or by necessary implication, indicates any purpose on the part of Russia to demand, or upon the part of Great Britian
to concede, that the Ukase of 1821 should remain in force as to Bering
Sea, as distinguished from the North Pacific Ocean.
I have been unable to reach that conclusion. Nor can that position
be sustained consistently with the position taken' by Russia itself after
1S25 as to the scope and effect of the treaties of 1824 and 1825. The
evidence is conclusive that Russia—whatever may have been embodied in the proceedings of the Nessdrode conference after the treaty
of 1824 was signed—understood both treaties to have annulled the
Ukase of 1821 in its application to foreign vessels, so far as to secure \h
I
104
to the citizens of Great Britain aud America entire freedom of navigation and rights of fishing throughout the whole of Bering Sea, outside of territorial waters.
InTickmenief's "Historical Review of the formation of the Russian
American Company and their proceedings to the presenttime", published
at St. Petersburg in 1863 {Part I,pp. 130-139), it is said: "In 1842
Etolin, governor of the colony, informed the company that in the course
of-his tour of inspection he had come across several American ships.
Although circumstances had prevented his communicating with them
at the time, he had reason to believe that they were whalers. In corroboration of this he stated that for some time he had been receiving
reports from various parts of the colony of the appearance of American
whalers in the neighborhood of the harbors and shores of the colony.
Amongst these reports the most noteworthy was that of Captain Kad-
nikoff, the commander of the company's ship Nasliednik Alexander, who
stated that, on a voyage from Sitka to Okhotsk, he had hailed a whaler
flying the American flag. The master informed him that he had come
from the Sandwich Islands in company with thirty other ships to whale
on both sides of the western extremity of the peninsula of Alaska and
the eastern islands of the Aleutian group belonging to that peninsula,
and that as many as 200 whalers were coming from the United States
the same year. Captain Kadnikoff also ascertained from the master
that in 1841 he had whaled in the same waters in company with fifty
other ships, and that his ship secured thirteen whales, from which
1,600 barrels of oil were obtained." . British Case, Vol. 1, App. 40.
Ln reply to an application by the Russian American Company to prevent the Americans from fishing in the waters of the colony, the Russian foreign office, in 1842, said: "The claim to a mare clausum, if we
wished to advance such a claim in respect to the northern part of the
Pacific Ocean, could not be theoretically justified. Under Article I of
the convention of 1824 between Russia and the United States, which is
still in force, American citizens have a right to fish in all parts of the
Pacific Ocean. But under Article IV of the same convention, the ten
years' period mentioned in that article having expired, we have power
to forbid American vessels to visit inland seas, gulfs, harbors, and
bays, for the purposes of fishing and trading with the natives. That is
the limit of our rights, and we have no power to prevent American
ships from taking whales in the open sea." Letter from the Department
of Manufactures and Internal Trade, December 14,1842, No. 5191, Dielo.
Arkh. Kom., 1842, goda, No. 14, str. 7.   British Case, Vol. 1, App. 40. 105
Again, in 1843, the question was presented to the Russian Foreign
Office whether the claim of foreigners to take whales in Russian waters
ought not to be limited by a line drawn at a distance of at least three
leagues, or nine Italian miles, from the shores of the colony. The Russian Foreign Office, in 1843, said: "The fixing of a line at sea within
which foreign vessels should be prohibited from whaling off our shores
would not be in accordance with the spirit of the convention of 1824,
and would be contrary to the provisions of our convention of 1825 with
Great Britain. Moreover, the adoption of such a measure, without
preliminary negotiation and arrangement with the other powers, might
lead to protests, since no clear and uniform agreement has yet been
arrived at among nations in regard to the limit of jurisdiction at sea."
British Case, Vol. 1, App. 41.
Subsequently, in i846, the governor-general of Siberia, in consequence of what were regarded as new aggressions on the part of whalers,
expressed the opinion that, in order to limit the whaling operations of
foreigners, it would be fair to forbid them to come within 40 Italian
miles of the Russian shores, the ports of Petropavlosk and Okhotsh to
be excluded, and a payment of 100 silver roubles to be demanded at
those ports from any vessel for the right of whaling. He recommended
the employment of a cruiser to watch foreign vessels. But the Russian
Foreign Office, in 1847, said: "We have no right to exclude foreign
t ships from that part of the Great Ocean which separates the eastern shore
of Siberia from the northwestern shore of America, or to make the payment of a sum of money a condition to allowing them to take whales."
British Case, Vol. 1, App. 41.
Of course, the waters here referred to included the whole of Bering
Sea, and the language used by the Russian Foreign Office leaves no
room to doubt that Russia regarded Bering Sea as part of the "Great
Ocean." Nor can we suppose that Russia, after the treaty of 1825, regarded the prohibition in the Ukase of 1821 against foreign vessels
approaching its shores nearer than 100 Italian miles as in force against
the subjects of Great Britain, or against the people of any nation at
the time of the cession of 1867 to America.
It may be said that the official declarations of the Russian Foreign
Office as to the spirit and meaning of the treaties of 1824 and 1825
had reference to the hunting of whales and not to the hunting of fur
seals. But there is no ground to suppose that foreign vessels employed
in hunting whales in Bering Sea had, in the judgment of the high 106
contracting parties, any less rights than those employed in the hunting of fur seals in the same waters. There is no trace in the record
of any purpose upon tbe part of Russia to claim larger rights in the
open waters of Bering Sea in respect to the hunting of fur seals than
in respect to the hunting of whales. In fact, prior to 1867, there was
no such thing known as the hunting of these fur seals in the high seas,
except, perhaps, a few were taken by the natives along the coasts with
spears and harpoons.
There is one argument, in support of the contention that "Pacific
Ocean" in the treaties of 1824 and 1825 do not include Bering Sea, which
deserves examination. It is, that upon a vast number of maps published prior to 1825 the waters north of the Aleutian Islands and between Alaska and Siberia were designated separately from the waters
south of those islands, and that if Russia aud Great Britain intended
that the treaty of 1825 should embrace the waters of Bering Sea some
refereuce would have been made to that sea in the form of words used
on maps designating it as a separate body of water. To Mr. Biaine's
letter of December 17,1890, is attached a list, of 105 maps, covering
the period from 1743 to 1829, showing that on those maps the waters
south of Beriug Sea are variously designated as the Pacific Ocean,
Oce'an Pacifique, Stilles Meer, the Great Ocean, Grand Mer, Grosser
Ocean, the Great South Sea, Grosser Sud-Sea, North Pacific, Mer du
Sud, etc. On those maps the waters north of the Aleutian Islands !
are as a general rule designated specially, sometimes by the words .
"Sea of Kamschatka," and at other times by the name'of "Bering
Sea."
But, upon examining those and other maps, it appears that, in most
instances,the words "Seaof Kamschatka" and "Bering Sea" are often
in letters so small as compared with the words " Pacific Ocean," " Great
Ocean," " Great South Sea," etc., lower down on the map, as to justify the
conclusion that the former body of water was regarded as a part of the
latter. This view is supported by the fact that on many charts, and in
many geographies, encyclopedias, and other publications prior to and
since 1825 (references to some of which are given in the margin*) Bering
* Morse'8 American G-eography, London, 1794, p. 650: " Russian Empire. TMs
immense empire stretches from the Baltic Sea aud Sweden on the west to Kamschatka and the Pacific Ocean on the east, and from the Frozen Ocean on the
north to about the forty-fourth degree of latitude on the south."
Malham's Naval 6-azeteer, London, 1796, Vol. 2, p. 4: "Kamschatka Sea is a
large branch of the Oriental or North Pacific Ocean." Si
107
Sea was often referred to as constituting a part of the Pacific Ocean or
South Sea, or the North Pacific Ocean. These facts explain how it was
that the treaty of 1824 described the Great Ocean, on which there
should be freedom of navigation and fishing, as the body of waters commonly called the Pacific Ocean or South Sea. This description was
first suggested in the projet presented to the Russian Government by
Mr. Middleton, the American minister at St. Petersburg, the words of
which were, "in any part of the Great Ocean, vulgarly called the Pacific
or South Sea."   American State Papers, Vol. 5, p. 464.
Ibid, Vol. 1, p. 4$: "Bering's Straits, which is the passage from the North
Pacific Ocean to the Arctic Sea."
Broohe's General Gazeteer, 1802: "Bering's Island—An island in the Pacific Ocean."
Montefiore's Commercial Dictionary, 1803: " Kamschatka—Bounded on the east
and south by the North Pacific Ocean."
'GratttweWs New Universal Gazeteer, 1808: "Kamschatka—Peninsula, bounded
on the east and south by the North Pacific Ocean.
JRees's Cyelopcedia, Vol. 26, London, 1819.—"Pacific Ocean, or South Sea, In geography, that vast ocean which separates Asia from America., It is called Pacific
from the moderate weather which the first mariners who sailed in it met with
between the tropics; and it was called the South Sea because the Spainards
crossed the isthmus of Darien from north to south. It is properly the western
ocean with regard to America. Geographers call the South Sea Mare Pacificum,
the Pacific Ocean as being less infested with storms than the Atlantic. * * *
This ocean is divided into two great parts. That lying east from Kamschatka,
between Siberia and America, is eminently styled the Eastern or the Pacific
Ocean; that on the west side from Kamschatka, between Siberia, the Chinese
Mongoley, and the Kwielly Islands is called the Sea of Okhotsk. From the
different places it touches it assumes different names, e. g., from the place where
the river Anadyr falls into it, it is called the Sea of Anadyr, about Kamschatka,
the Sea of Kamschatka; and the bay between the districts of Okhotsk and
Kamschatka is called the Sea of Okhotsk."
JSncyclop6die Me'thodique Geographic, Paris, Vol. 2, p. 501: "2d. L'Oce"an pacifi-
que, la mer du sud, ou la grand mer, qui est situe"e entre les c6tes orientales
d'Asie, et occidentals d'Amerique."
(The Pacific Ocean, the South Sea, or the Great Sea, which is situated between
the coasts of Asia and the western coasts of America.)
Encyclopedic du Dix-Neuvieme Siecle (Encyclopaedia of the 19th Century),
Paris, Vol. 17, p. 429; Oce"an Pacifique ou mer du sud, appelee aussi-grande Mer
entre 1'Amerique et l'Asie, eutre le cercle polaire du nord et celui du sud. (The
Pacific Ocean, or the South Sea, called also the Great Sea, between America and
Asia, and between the northern polar circle and the southern.)
Edinburgh Gfizeteer, 1822. Vol. 1,p. 432: "Behring's Island—an island in the
North Pacific Ocean." 108
1 am of opinion in view of. all the evidence—which includes many
documents that do not appear to have been brought to the attention
of Mr. Blaine during his correspondence with Lord Salisbury—that the
words Pacific Ocean in the treaty of 1825 included, and were intended
by Russia and Great Britain to include, the waters of Bering Sea as
part of " the Great Ocean commonly called the Pacific Ocean."
Respecting the seal fisheries in Bering Sea, named in the first and
second points of Article VI of the treaty—if the reference be to the
fur-seal industries conducted under the license or authority of Russia on
the islands situated in that sea—it is clear, from the records in our hands,
that Russia, from a date prior to the beginning of the present century
down to the cession in 1867 of Alaska to the United States, had the exclusive right to such fisheries, and that her rights, in that regard, were
General Gazeteer, London, 1823: " Beering's Island—in the North Pacific Ocean."
New London Gazeteer, 1828: " Beering's Island—iu the Pacific."
Edinburgh Gazeteer, London, 1827, Vol. 1,p. 433: "Kamschatka (Peninsula). On
the east it has the North Pacific Ocean, and on the west that large gulf of it
called the Sea of Okhotsk."
Arrowsmith's Grammar of Modem Geography, 1832: "Bhering's Strait connects
the Frozen Ocean with the Pacific.    The Anadir flows into the Pacific Ocean."
Penny Encyclopedia, London, 1840, p. 116: "Pacific Ocean extends between
America on the east and Asia and Australia on the west. * * * It is called
the South Sea, because vessels sailing from Europe can only enter it after a long
southerly course. The name of South Sea has been limited in later times to the
southern portion of the Pacific. The Pacific is the greatest expanse of water
on the globe, of which it covers more than one-half of the surface. * ' * *
Behring's Strait, which may be considered as its most northern boundary, lies
between East Cape in Asia and Cape Prince of Wales near 66° north latitude,
and is less than 40 miles wide."
London Encyclopedia, 1845, Vol. 16, p. 102: Following Malte Broun's Precis
de la Geographie Universelle, this book describes the Eastern or Great Pacific
Ocean as embracing among other waters "the Northeastern Ocean between Asia
and North America," the "seas of Japan, Kamschatka, and Beering's Strait,"
making "a part of it."
Encyclopedia Americana,-Philadelphia, 1845, Vol. 9, p. 476: "Pacific Ocean;
the great mass of waters extending from Beering's Straits to the Antarctic Circle,
a distance of 3,200 leagues, aud from Asia and New Holland to America. * * *
It was at first called the South Sea by the European.navigators, who entered it
from the north.   Magellan gave it the name of Pacific," etc.
New American Cyclopedia, by Ripley and Dana, 1851: "Pacific Ocean: Between
longitude 70° west and 110° east; that is, for the epace of 180°, or over one entire
half of the globe. It covers the greater part of the earth's surface from Behring's
Straits to the Polar Circle, that separates it from the Antarctic Ocean."
Harper's Statistical Gazeteer of the World.   By Smith.   New York: 1855.   "Kus- 109
recognized and conceded by Great Britain, in the sense that that
couutry never, in any form, disputed such right, although neither Great
Britain nor the United States .ever recognized or conceded even the
qualified jurisdiction asserted by Russia, in the Ukase of 1821, to forbid foreign vessels from approaching nearer than 100 Italian miles from
her coasts or islands. In respect to seal fisheries, if any, conducted in
the open waters of Bering Sea outside of territorial waters, Russia
neither held nor exclusively exercised any right not possessed, in such
open waters, by all other nations.
Iu respect to the fourth point of Article VI, it was not disputed in
argument (as of course it could.not be) that whatever rights—that
is, whatever legal rights—Russia had, as to jurisdiction and as to
sian America comprises the whole of the continent of northwest America west of
longitude 144° west and a strip on the coast extending south to latitude 55°
north, bounded on the east by British America, south and west by the Pacific
Ocean, and north by the Arctic Ocean," etc.
Cyclopedia of Geography, by Knight, 1856: "Behring's Strait, which connects
the Pacific with the Arctic Ocean, is formed by the approach of the continents
of America and Asia."
MoCullooh's Geographical Dictionary, by Martin, 1S66: "Pacific Ocean: Its extreme southern limit is the Antarctic Circle, from which it stretches northward
through 132° of latitude to Behring Strait, which separates it from the Atretic
Ocean."
Blackie's Imperial Gazeteer, London, 1874, Vol. 2, p. 558: "In the north the
Pacific gradually contracts in width; the continents of America and Asia,
stretching out and approximating, so as to leave the comparatively narrow
channel of Behring's Strait as the only communication between the Pacific
and the Arctic Oceans."
American Cyclopedia, New York, 1875, Vol. 1, p.4S0: "Behring Sea. Thatpart
of the Pacific Ocean which lies immediately south of Behring Strait."
Encyclopedia Britannica, Edinburgh. Ninth Ed., 1875-1890, Vol. 18, p. 115:
"The Pacific Ocean is bounded on the north by Behring's Strait and the coasts of
Russia-aiul Alaska. It extends through 132° of latitude; in other
words, it measures 9,000 miles from north to south, from east to west its
breadth varies from about 40 miles at Behring's. Strait," etc. In the English
edition it is stated in a footnote that the Pacific Ocean was formerly called the
South Sea. •
Worcester's Dictionary of the English Language, Philadelphia, 1887: "Behring
Sea: A part of the Pacific Ocean north of the Aleutian Islands."
Chambers's Cyclopmdia, 1888: "Behring Strait connects the Pacific Ocean with
the Arctic Ocean. Behring Sea: A part of the Pacific Ocean commonly known
as the^Seaof Kamchatka." 110
seal fisheries in Bering Sea east of the water boundary defined in
the treaty of March 30, 1867, between Russia aud the United States,
passed, unimpaired to the United States. She conveyed all her territory and dominion, and all the rights, franchises, and privileges which
she possessed in such territory and dominion, within the limits defined
by that treaty, free and unincumbered by any reservations, privileges,
grants, or possession, by any company or individuals. The deed of cession of 1867 necessarily embraced all of Russia's rights, whatever they
were, in the fur seals frequenting the Pribilof Islands, and in the
industries carried on there for more than three-quarters of a century
prior to 1867.
If I am correct in the views above expressed, the answers to the
first four points of Article VI should be, substantially, as follows:
To the first.—Prior to and up to the time of the cession of Alaska to
the United States, Russia did not assert nor exercise any exclusive
jurisdiction in Bering Sea, or any exclusive rights in the fur seal fisheries in that sea, outside of ordinary territorial waters, except that in
the Ukase of 1821 she did assert tbe right to prevent foreign vessels
from approaching nearer than 100 Italian miles the coasts and islands
named in that Ukase. But, pending the negotiations to which that
Ukase gave rise, Russia voluntarily suspended its execution, s> far as
to direct its officers to restrict their surveillance of foreign vessels to
the distance of cannon shot from the shores mentioned, and by the
treaty of 1824 with the United States, as well as by that of 1825
with Great Britain, the above Ukase was withdrawn, and the claim
of authority or the power to prohibit foreign vessels from approaching
the coasts nearer than 100 Italian miles was abandoned, by the
agreement embodied in those treaties to the effect that the respective
citizens and subjects of the high contracting parties should not be
troubled or molested, in any part of the Great Ocean commonly called
the Pacific Ocean, either in navigating the same or in fishing therein,
or in landing at such parts of the coast as shall not have been already
occupied, in order to trade with the natives, under the restrictions
and conditions specified in other articles of those treaties.
To the second.—Great Britain never recognized nor conceded any
claim by Russia of exclusive Jurisdiction in Bering Sea, nor of
exclusive rights as to the seal fisheries therein, outside of ordinary
territorial waters; although she did recognize and concede Russia's Ill .
exclusive jurisdiction within her own territory and such jurisdiction
inside of territorial waters as was consistent with the law of nations.
To the third.—The body of water now known as Bering Sea was
included in the phrase "Pacific Ocean" as used in the treaty of 1825
between Great Britain and Russia, and, after that treaty, Russia
neither held nor exercised any rights in the waters of Bering Sea. out"
side of ordin ary territorial waters, that did not belong in the same waters
to other countries.
To the fourth.—All the rights of Russia as to jurisdiction, and as to
the seal fisheries in Bering Sea, east of the water boundary in the
treaty between the United States and Russia of March 30,1867,.passed,
under that treaty, unimpaired to the United States.
THE   K Hi 111    OF   PROPERTY ASSERTED   35V THE  UNITED  STATES
IN THE PRIBILOF HERD OF SEALS, AND ITS BIGHT, WHETHER
AS OWNER OF THE HE It I). OR SHAPE V AS OWNER OF THE FUR
SEAE INDITSTltV ON THE I>ItI3ill.»F ISLANDS, TO PROTECT THE
SEALS AGAINST PELAGIC SEALING.
I come now to the most important and interesting question presented
for determination, namely, that involved in the fifth point of Article VI
of the Treaty:
"Mas the United States any right, and if so, what right of protection or
property in the fur-seals frequenting the islands of the United Stales in
Bering Sea when such seals are found outside the ordinary three-mile
limit?"
It is necessary to a proper understanding of this question, in its
bearing upon the general subject of the preservation of this race of animals, that we recall the facts (never before so fully developed as in the
evidence now adduced) touching their history, nature, and habits as
well as the results that necessarily follow from bunting and killing
them in the high seas. These facts should be clearly apprehended before
we enter upon the consideration of the principles of law and justice
applicable to the case. They should be brought together here, even at
the risk of some repetition.
These facts—stating only such as are admitted or are established by
overwhelming evidence—are as follows:
1. The animals in question belong to the species commonly designated
by naturalists as the Northern Pur Seal, and are valuable for purposes 112
liifi!
of raimentand food. The race has only four breeding places: Commander
Islands, in the western part of Bering Sea,nearthecoastof Asia;Robben
Reef, in the Sea of Okhotsk ; the Kurile Islands, on the west side of
the Pacific Ocean, near the coasts of Japan and Asia; and the islands
of St. Paul and St. George, part of the Pribilof group in Bering Sea.
The Pribilof seals so far differ from others of the Northern Fur Seal
species that their pelage can readily be distinguished by experts from
that of the seals of other herds.
2. The taking or killing of fur seals, for commercial purposes, at the
islands of St. Paul aud St. George, during the eighty years of Russia's
ownership of the Pribilof Islands, Was conducted under the license
or authority of that nation. And the exclusive right of Russia, during that period, to control that business, so conducted, for its exclusive
benefit or for the advantage of its subjects, was not disputed by any
other country.
3. By a joint resolution of the Congress of the United States, approved
March 3,1869, providing for the more effective protection of tbe fur
seal in Alaska, the islands of St. Paul and St. George—which, with
other islands in Bering Sea, became the property of the United
States by virtue of the cession from Russia of March 30, 1867—were
declared to be "a special Reservation for Government purposes;" and
it was made unlawful for any person to land or remain oh either of the
two islands named,, except by tbe authority of the Secretary of the
Treasury; any person found on either island without such authority
being liable to be summarily removed.
Subsequently, by an act of Congress, entitled "An act to prevent
the extermination of the fur-bearing animals in Alaska," approved
July 1,1870, it was made unlawful to kill any fur seal upon the islands
of St. Paul and St. George, or in the waters adjacent thereto (except
during certain named months), or to kill such seals at any time with
firearms, or to use any means that tended to drive the seals from the
islands; the natives on the islands being, however, allowed the privilege (subject to regulations prescribed by the Secretary of the Treasury) of killing, during other months, such young or old seals as were
necessary for food and clothing. By the same statute it was made
unlawful to kill any female seal, or any seal less than one year old, at
any season of the year (except as provided, in the case of natives), or
to kill any seal in the waters adjacent to the islands, or on the beaches,
cliffs, or rocks where they hauled up from the sea to remain; any person violating the above provisions or either of them being made liable !n|U
113
to a fine of not less than $200 nor more than $1,000, or to imprisonment not exceeding six months, or both to such fine and imprisonment
at the discretion of the court having cognizance of the offense; all
vessels, their tackle, apparel, and furniture, whose crew were found
engaged in violating the provisions of the act, to be forfeited to the
United States.
The same act provided that, for the period of twenty years, the
number of seals killed for their skins should be limited to 75,000 per
annum upon the island of St. Paul, add 25,000 upon the island of
St. George; subject, however, to the power of the Secretary of the
Treasury to limit the right of killing, if that should become necessary for the preservation of the seals, with such proportionate reduction of the rents reserved to the Government, as was right and proper.
The Secretary was required to lease for the term of twenty years, to
proper and responsible parties, for the best advantage of the Government, the native inhabitants, their comfort, maintenance, and education, as well as to the interest of the parties previously engaged in the
trade, aud the protection of the fur seals, the right to engage in the
business ot taking fur seals on the islands of St. Paul and St. George,
and to send a vessel or vessels to those islands for the skins of the
seals; taking Troin the lessee or lessees bond with sufficient sureties
in the sum of not less than $500,000, conditioned for the faithful observance of all the laws of Congress and of the regulations of the Secretary of the Treasury, touching the subject matter of taking fur seals,
and disposing of the same, and for the payment of all taxes and dues.
It was further provided, that at the end of the lease, other like leases
could be made; but no persons other than American citizens were
permitted to occupy the islands or either of them, for the purpose of
taking the skins of fur seals,nor any vessel allowed to engage in taking
such skins; any lease made by the Secretary of the Treasury being
subject to forfeiture if it was held or operated, directly or indirectly,
for the use, benefit, or advantage of any person other than American
citizens.
These and other provisions having for their object the utilization of
these animals for purposes of revenue and commerce, and their protection against indiscriminate slaughter on the islands, or iu the
adjacent waters, were preserved in the Revised Statutes of the United
States of 1873, §§. 1954 to 1976, inclusive.
11492 8
v!;;;
I 114
rt
By another act of Congress, approved March 2,1889, it was provided
that section 1956 of the Revised Statutes, prohibiting the killing of any
otter, mink, marten, sable or seal, or other fur-bearing animal, within the
limits of Alaska Territory or in the waters thereof was declared to include
and apply to all the dominion of the United States in the waters ot
Bering Sea; and it was made the duty of the President, at a timely
season in each year, to issue his proclamation and cause the same to be
published at each United States port of entry on the Pacific coast,
warning all persons against entering those Waters for the purpose of
violating the provisions of that section.
4. The Pribilof herd is found, en masse, every year on the islands of
St. Paul and St. George. They remain there about four or five months.
Much longer time intervenes between the first arrival of some, and the
departure from the islands of those who last leave them for the season.
The period during which the herd abides on those islands, is called
the breeding season. They return there regularly for the purpose of
breeding and rearing their young, and of shedding and renewing their
coats of fur.
5. The"breeding males, called bulls, arrive in the early part of May .
or by the middle of that month. Euli bull, immediately after coming
from the sea, establishes himself upon the .rocky beach, appropriating
as much space as will be needed for his female companions after they
arrive. The non-breeding males, or bachelors, arrive during the same
month, and take position, substantially in a body, and, as a general
rule, in the rear of the spaces occupied by the bulls. Sometimes the
bachelors occupy spaces near the water, but separate from those
occupied by the bulls and their female companions. Early in June the j
female seals, called cows, begin to emerge in bodies or droves* from the
sea, and to enter the spaces provided for them by the bulls. By the
10th of July substantially the entire herd is established on the islands.
Each bull appropriates for the season at least fifteen or twenty female
seals.
Within a few hours, it may be, always within a few days, after reaching the islands, the mother seal, impregnated during the breeding
season of the .previous year, gives birth to a single pup, the period
of gestation being eleven or twelve months, the pups born being
about equally divided between the sexes. The pups are conceived on
the islands during the breeding season. Cohabitation, for any effective
purpose, in the water, is impossible.   The females appear to have an' 115
unerring instinct as to the time when the period of gestation will end.
The cows, after being-delivered of their pups, remain for a few weeks
with the bulls by whom they have been appropriated. They go from
tbe islands into the sea as often as nature suggests to be necessary for
the purpose of obtaining fish for food by which they are nourished while
suckling their young. A cow, while nursing its pup, often goes long
distances from the islands in search of fish. Capt. Shepard, of the United
States Marine service, who examined the skins taken from sealing vessels seized inl887 and 1889, over 12,000 in number, two thirds or three-
fourths being the skins of females, says: " Of the females taken in the
Pacific Ocean, and early in the season in Bering Sea, nearly all are
heavy with young, and the death of the female necessarily causes the
death of the unborn pup seal; in fact, I have seen on nearly every vessel
seized the pelts of unborn pups which bad been taken from their mothers.
Of the females taken in Bering Sea nearly all are in milk, and I have
seen the milk come from the carcases of dead females lying on the decks
of sealing vessels which were more than 100 miles from the Pribilof
Islands. From this fact, and from the further fact that I have seen seals
in the water over 150 miles from the islands.during the summer, I am
convinced that the female, after giving birth to her young on the rookeries, goes at least 150 miles, in many cases, from the islands in search of
food." Robert H. McManus, a journalist of Victoria, who had devoted
some attention to the sealing industry, referring to a catch of seals
in Bering Sea when he was present, says that over three-fourths of
that catch were cows iu milk. This, he says, at a distance of 200
miles from the'rookeries, shows that the nursing cows-ramble all over
the Bering Sea in search of their chief food, tbe codfish, though
these are chiefly found on the banks along the coast of the Aleutian
Islands. In the Canadian Fisheries Report of 1886, it is stated that
of the seals taken that year, " the greatest number were killed in
Bering Sea, and were nearly all cows or female seals;" and in the
report of 1888, that " over 60 per cent of the entire catch of Bering
Sea is made up of female seals." The record is full of similar evidence.
6. Upon returning from her search for food the mother seal hunts up
her pup, and will refuse her milk to the pup of any other cow. An intelligent witness thus describes the general habits of the mother seal and its
pup: "The cows appear to go to and come from the water quite frequently, aud usually-return to the spot or its neighborhood, where they
leave their pups crying out for them and recognizing their individual 116
II
Iff
cries, though ten thousand around all together should bleat at once.
They quickly single out their own and attend them. It would be a
very unfortunate matter if the mothers could not identify their young
by sound, since their pups get together like a great swarm of bees,
spread out upon the ground in ' pods' or groups, while they are young
and not very large, but by the middle and end of September until they
leave in November they cluster together, sleeping .and frolicking by
tens of thousands. A mother comes up from the water where she has
been to wash, and perhaps to feed for the last day or two, about where
she thinks her pup should be, but misses it, and finds instead a swarm
of pups in which it has been incorporated, owing to its great fondness for
society. The mother, without at first entering into the crowd of thousands, calls-out just as a sheep does for her lambs, listens, and out of
all the din she—if not at first, at the end of a few trials—recognizes the
voice of her offspring and then advances, striking out right and left,
and over the crowd toward the position from which it replies; but if the
pup at this time happens to be asleep she hears nothing from it, even
though it were close by, and in this case the cow, after calling for a
time without being answered, curls herself up and takes a nap, or
lazily basks, and is most likely more successful when she calls again."
Another witness of large experience says: " As already stated, the
females now mostly spend their time in the water, returning on shore
only to suckle their young as they require food. On landing the
mother calls out to her young with a plaintive bleat like that of a sheep
calling to her lamb. As she approaches the mass several of the young
ones answer and start to meet her, responding to her call as a young
lamb answers its parent. As she meets them she looks at them, touches
them with her nose as if smelling them, and passes hurriedly on until
she meets her own, which she at once recognizes. After caressing
him she lies down and allows him to suck and often falls into a sound
sleep very quickly after."
If the mother seal is killed while out at sea in search of fish for food,
her pup, left behind on the islands, and requiring the milk of its mother
for eight weeks or more after its birth, will die from starvation. This
fact is placed beyond dispute by the evidence, and is not, I think,
seriously questioned.
The pups do not take to swimming naturally. They are enticed or
forced by their mother, from time to time, into the water and taught
to swim.   If a pup, by accident, is born in the sea, it will immediately 117
sink and be drowned. As already stated, the race is both conceived
and comes into existence on land, and from the necessities of its physical nature must abide upon land during several months of the year.
7. In the latter part of September or early in October,, the breeding
season having closed, the pups having learned to swim, and the
ice around the islands increasing the difficulty of going into the sea
for fish food, the herd begins to leave the islands, in squads or bands
of different sizes, proceeding in a southerly and southeasterly direction
through the middle passes of the Aleutian Islands into the North
Pacific Ocean south of those islands, where they get into the warmer
water of the Japanese current. During the winter months many of
the seals are seen off the coasts of California and Oregon. The bulls
do not go so far south, and do not accompany the herd in its general
migrations, usually remaining in tbe Gulf of Alaska until they return
to the breeding grounds. In the beginning of the year the seals turn
their faces towards their land home, moving leisurely in small schools
or bands, but substantially as a herd, northwardly and opposite to the
coasts of Oregon, Washington, British Columbia, and_Alaska, thence
westwardly, through the eastern passes of the Aleutian Islands, back
into Bering Sea, to their breeding grounds on the islands of St. Paul
and St. George. They occupy year after year substantially the same
places on the islands.
Their general migration route each year from the Pribilof Islands
through the passes of the Aleutian Islands into the Pacific Ocean
and back to their land home on those islands, is well known to sealers
and navigators.
8. While on the islands they are subject to the control,Tor every
practical or commercial purpose, of those who are there by tbe authority
or license of the United States. Credible witnesses, familiar with the
habits of these animals, state that the young seals, before being weaned,
could be easily handled and branded with the mark of the United
States. So complete is the subjection of these animals, old and young,
to control, while on the islands during the breeding season, that such of
them as it may be desirable to take for commercial purposes, can be readily
separated from all the others. Indeed, if pelagic sealing continues to such
an extent as to imperil the existence of the race, and if the United
States should find it to be unprofitable to hold the islands of St. Paul
and St. George as a Government Reservation, to be used exclusively
by these animals as their breeding grounds, it could take substantially 118
m
the entire herd, in any one breeding season, and put the proceeds of
the sale of their skins into its treasury.
9. Neither in Bering Sea, nor in the North Pacific Ocean, does the
Pribilof herd intermingle, to any appreciable extent, with the herds of
northern fur seals frequenting the islands on the Asiatic coast. The
migration routes of the latter are altogether in the waters on the western
side of the Pacific Ocean, while the Pribilof herd never have gone west
of the one hundred and eightieth degree of longitude from Greenwich, and very few have ever been seen so far west. This fact is
conclusively established by the evidence, and is recognized in the
separate reports, made by the commissioners who were appointed by
the two governments (two by each government) to investigate and
make report upon the facts having relation to seal life and the measures necessary for its proper protection and preservation.
The American Commissioners, Profs. Merriam and Mendenhall, in
their separate report made under the authority of the treaty between
the two governments, say:
" The fur seals of the Pribilof Islands do not mix with those of the
Commander and Kurile Islands at any time of the year. In.-summer
the two herds remain entirely distinct, separated by a water interval
of several hundred miles; and in their winter migrations those from
the Pribilof Islands follow the American coast in a southeasterly direction, while those from the Commander and Kurile Islands follow the
Siberian and Japan coasts in a southwesterly direction, the two herds
being separated in winter by a water interval of several thousand
miles. This regularity in the movements of the different herds is in
obedience to the well-known law th at .migrat or y animals follow definite
routes in migration and return year after year to the same place to breed.
Were it not for this law there would be no such thing as stability
of species, for interbreeding and existence under diverse physiographic
conditions would destroy all specific characters."    U.  S. Case, 323.
The British Commissioners, Prof. Dawson, and Sir George Baden-
Powell, in their separate report, under the same authority, say: -
"Respecting the migration range of the fur seals which resort to
Commander Islands, to Robben Island, and in smaller numbers to
several places in the Kurile Islands, as more fully noted in subsequent
pages, comparatively little has been recorded; but the result of
inquiries made in various directions, when brought together, are sufficient to enable its general character and the area which it covers to 119
be outlined. The deficiency in information for the Asiatic coast depends
upon the fact that pelagic sealing, as understood on the coast of
America, is there practically unknown, while the people inhabiting
the coast and its adjacent islands do not, like the Indians and Aleuts
of the opposite side of the North Pacific, naturally venture far to sea
for hunting purposes. The facts already cited in connection with the
migration of the seals on the east side of the Pacific show that these
animals enter and leave Bering Sea almost entirely by the eastern
passes through the Aleutian chain, and that only under exceptional
circumstances, and under stress of weather, are some young seals,
while on their way south, driven as far to the west as Atka Island.
-No large bodies of migrating seals are known to pass near Attu Island,
the westernmost of the Aleutians, and no young seals have ever within
memory been seen there. These circumstances, with others which it
is not necessary to detail here, are sufficient to demonstrate that the
main migration routes of the seals frequenting the Commander Islands
do not touch the Aleutian chain, and there is every reason-to believe
that although the seals become more or less commingled in Bering Sea,
during the summer, fhe migration routes of the two sides of the North
Pacific are essentially distinct. The inquiries and observations now
made, however, enable it to be shown that the fur seals of the two
sides of tbe North Pacific belong in the main to practically distinct
migration tracts, both of which are elsewhere traced out and described,
and it is believed that while to a certain extent transfers of individual
seals or of small groups occur, probably ever year, between the
Pribilof and Commander tribes, that this is exceptional rather than
normal. It is not believed, that any voluntary or systematic movement
of fur seals takes place from one group of breeding islands to the other,
but it is probable that a continual harassing of the seals upon one group
might result, in a course of years, in a corresponding gradual accession
to the other group.
" There is no evidence whatever to show that any considerable branch
of the seal tribe which has its winter home off the coast of British
Columbia resorts in summer to the Commander Islands, whether voluntarily or led thither in pursuit of food fishes; and inquiries along the
Aleutian chain show that no regular migration route follows its direction, whether to the north or south of the islands. It is certain that
the young seals, in going southward from the Pribilof Islands,-only
rarely get drifted westward as far as the one hundred and seventy- 120
l»
III
second meridian of west longitude, while Attu Island, on the one hundred and seventy-third meridian east is never visited by young seals,
and therefore lies between the regular autumn migration routes of the
seals going from the Pribilof and Commander Islands respectively."
Sees. 197,198, 453, 454.
10. The herd habitually resorting to the islands of St. Paul and
St. George is the same that has resorted there in the spring,
summer, and fall of every year for the past century and more
without any change whatever in their habits or in their migration routes. Since the discovery of the islands, the seals frequenting
them have never resorted, for any purpose whatever, to other coasts
or lands. This, no doubt, is due to the fact that they find on
the Pribilof Islands, and nowhere else, the isolation required for the
breeding season, as well as the climatic and physical conditions
necessary to their life wants, among which conditions are an uniformly
low temperature and an overcast sky and foggy atmosphere that serves
to protect them against the sun's rays while they remain at the
rookeries during the long summer season. Whatever may be the
reason for their never having landed upon any other shores, it is
indisputably shown that they have regularly resorted to those islands
as their breeding grounds for a period so long that the memory of man
runneth not to the contrary.   And the contrary is not asserted.
11. Prior to 1883 or 1885 the taking of these fur seals at sea was
exclusively by Indians or natives inside territorial waters, at any rate,
quite near the coasts. They employed for that purpose only small
canoes and harpoons or spears. Their catch, however, has never been
large in any year, and has not materially affected the industry conducted at the islands of St. Paul and St. George, nor apparently
diminished the number of the herd.
But in 1883 a schooner manned by hunters skilled in taking
seals entered Bering Sea and returned with more than 2,000 seals.
This stimulated the business of taking these animals in the open waters
beyond the territorial jurisdiction of the respective governments'.
In 1885 firearms were first used in hunting seals. Large schooners
or vessels now go out into the ocean in the route traversed by the
seals and send out small boats manned by hunters with rifles or
shotguns. Ordinarily, only the head of the seal can be seen as it
moves through, or lies asleep, in the water; those thus-asleep being,
as a general rule, mother seals heavy with young, who, being dis- 121
abled by their condition from making rapid movements, are easily
approached and killed. It is indisputably shown by the evidence that
at least 75 per cent of all seals shot by pelagic sealers and actually
secured are female seals, the larger part of whom are far advanced
in pregnancy when so taken. As soon as the mother seal is taken
by pelagic sealers, her body is opened and the unborn pup thrown
into the sea. It is also shown that large numbers of seals, that
are shot at and wounded or killed, sink and are entirely lost before
the hunter can reach them with his small boat. Tbe number so lost
varies according to the skill of the hunter in using fire arms and the
implements carried for the purpose of securing the seal that has been
wounded or killed, before it sinks. But, making a fair average of the
per cent given by witnesses on both sides, it is certain that, in addition to the seals actually taken by hunters using fire arms, not less
than 25 to 40 per cent ofN all seals wounded sink before they are
reached by the hunter, and are entirely lost. In pelagic sealing
there can be no selective killing so far as sex is concerned, for it is agreed
that a hunter can not tell whether the seal at which he shoots in the
water is of the male or female sex. Such an attack upon the breeding
females, if continued for a few years, will, of course, result in the ex-'
termination of this polygamous race. Tbe slaughter of the female seal
not only involves the loss of the mother and its unborn pup, but, as
Mr. Blaine well said, " the future loss of the whole number which the
bearing seal may produce in the successive years of life. The destruction which results from killing seals in the open sea proceeds, therefore,
by a ratio which constantly and rapidly increases, and insures the
total extermination of the species within a very brief period." Besides,
in the long run, the killing of a female which has not yet borne young,
or which is too young to have borne many pups, is more destructive
than to kill one somewhat advanced in years.
The largest number of vessels engaged in hunting these fur seals on
the high seas outside of territorial waters in any year previous to
1886 was 16. Tbe number increased in 1886 to 34, in 1887 to 47, in 1889
to 68, in 1890 to 91, in 1891 to 115, in 1892 to 122. The catch,
in the open sea by pelagic hunters of seals belonging to the
Pribilof herd has steadily increased for ten years past, so that
in the North Pacific Ocean, south of the Aleutian Islands, it
amounted to 68,000 in 1891 and at least 70,000 in 1892, the modus 122
Mm
II n
vivendi for those years excluding pelagic sealers only from Bering
Sea.
During the breeding season of 1868, before the United States had
established regulations for the taking of fur seals at the Pribilof
Islands, and before its authorities had acquired any knowledge as to
tbe necessity of imposing restrictions upon the number to be killed for
commercial purposes, seal hunters took on those islands alone about
268,000 of all ages and sexes. The evil was, of course, remedied as soon
as the act of 1863 was passed.' From 1869 to 1871, inclusive, the average number killed annually on the islands' for commercial purposes
(taking for this estimate the report of the British commissioners) was
69,258, aud from 1872 to 1889, inclusive, 93,211, exclusive, in each
period, of the pups killed by natives for food and raiment. In 1890,
when the disastrous effects of pelagic sealing began to be more distinctly
felt, only 20,995 young males suitable for taking could be found on the
islands, and in 1891 only 12,071, including the 7,500 allowed by the
modus vivendi of thai year. By the modus vivendi of 1892 only 7,500
were allowed to be taken on the islands. In the present year, under the
operation of the latter arrangement, only 7,500 can be taken -by the
United States or its Kcensees on the islands, while pelagic sealers are
at liberty to take all they can in the North Pacific Ocean. It is not
doubted that they will take at least 80,000 this season in those waters.
12. The Commissioners appointed by the United States and Great
Britain agree that "since the Alaska purchase a marked diminution of
the 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." They also agree that "for industrial as well as for other obvious reasons, it is incumbent upon all
nations, and particularly those having direct commercial interests in
fur seals, to provide for their proper protection and preservation."
13. But for the protection given to these seals while on the islands of
St. Paul and St. George, first by Russia, and, subsequently, by the United
States, the entire herd, frequenting the Islands of St. Paul and St.
George since the discovery of those islands (hoW much longer can not be
now known), would long ago have been destroyed by raiders and seal
hunters. If the care, supervision, and self-denial practiced by the
United States on the islands were withdrawn, the race would be swept
out of existence within a very few years.
It is common knowledge that at the close of the last century fur seals 123
of a somewhat different species from the Northern Fur Seals, but
having most of the same characteristics, could be seen in numbers
almost incredible on numerous coasts and islands in the Southern
Ocean, off the coasts of South America. According to the concurrent testimony of navigators and naturalists, all these herds in the
southern seas have been annihilated, or so reduced in numbers that it
is no longer worth while to visit them, "owing," to use the language of
Sir William H. Flower, the distinguished head of the British Natural
History Museum, "to the ruthless and indiscriminate slaughter carried
ou by ignorant and lawless sealers, regardless of everything but immediate profit." We have the authority of the same eminent naturalist
for saying: "The only spot in tbe world where the fur seals are now
found in their original, or even increased, numbers, is the Pribilof group,
a eircnmstauce entirely owing to the rigid enforcement of the wise regulations of the Alaska Commercial Company. But for this the fur seal
before now would have been added to the long list of animals exterminated from the earth by the hand of man." Fifty-second Congress
United States, First session, Senate Ex. Doc. No. 55, pp, 96-97.
Dr. Philip Lutley Sclater, of the Zoological'Society of London, in a
recent article to which our attention has been called, says, substantially
in conformity with the evidencebefore us: " Informer days South Africa,
Australia, and South America all supplied seal skins for the market,
derived either from the shores of the continents themselves, or from the
adjoining islands, to which the fur seals resorted for the purpose of
breeding and bringing up their young. But the Antarctic fur seal trade
is now practically extinct, owing to the indiscriminate slaughter of these
animals, which commenced at the. end of the last century and was continued until the reduction in their numbers rendered the trade altogether
unprofitable. In a single year, it is said that 300,000 seal skins were
taken from the South Shetland Islands, and upward of 3,000,000 are
stated to have been carried off from-the island of Mas-a-fuero, near
Juan Fernandez, in the short space of seven years. In fact, the breeding places, or rookeries, as they are called, of the fur seals in the Antarctic seas have been entirely destroyed. The, myriads of seals which
formerly resorted to them have been either swept away or reduced to
a few individuals, which seek the land iu scattered bands and rush to
the sea on the approach of man. There can be little question, we see,
of the fate that will overtake these animals in other parts of the world
unless effective measures are instituted for their protection.  Although,
Si
ill 121
lif
therefore, a few lots of seal "skins may still be received from the South
Seas, the furseal of the North Pacific (Otaria ursina) is, in fact, the
only source of the present supply of fur seal skins that can be relied
upon. At the present epoch only two remaining breeding places of this
animal exist.   These are in Pribilof islands or Bering Sea, within the
territory of Alaska (ceded by Russia to
United States in 1867) and
the Commander Islands iu the southwest corner of the same sea, which
still remain under Russian jurisdiction. Two great herds of fur seals
resort to these islands respectively during the summer months for the
purpose of breeding and rearing their young."
Again the same scientist: "If there were no other reasons to the
contrary it would be quite as fair that the pelagic sealers should catch
sixty thousand seals iu the open Pacific, as that the American officials
should slaughter the same number on the Pribilof Islands. But, in the
former case there is, of course, no possibility of making a selection of age
or sex. The pelagic hunter kills every seal he can come across, whether
male, female, or young. According to the American Commissioners,
at least 80 per cent of tbe seals thus taken are females. Worse than
this, according to the same authorities, they are principally females
heavy with young. Thus, for every seal of this kind taken, two lives
are sacrificed. Moreover, as the seal, if shot dead, sinks quickly below
the surface, many of the bodies are altogether lost, and another con-
, siderable element of wastefulness is thus attached to pelagic sealing.
Now, let me ask, what owner of a deer forest in Scotland would consent
to his hinds being killed, especially during the breeding season? Is it
not likewise on a grouse moor forbidden to shoot grey hens at any
time? In these, aud in numerous other instances which might be mentioned, the sanctity of female life is universally recognized. On tbe
other hand, the fur seal beiug polygamous, males may be killed to a
large extent without fear of injury to the herd, for, although nearly
equal numbers of both sexes appear to be born, one adult male is sufficient for twenty or thirty females. But the selection of males from
females, and especially of males of the age required to make the best
skins, can only be effected on land, where the assembling together of the
younger male fur seals on particular spots presents the necessary
opportunity. I think, therefore, that if the fur seal is to be preserved
for the use of posterity every true naturalist will agree with the American Commissioners that pelagic sealing ought to be altogether suppressed—in the first place, because it necessarily involves the de- 125
struction of female life; and in the second place, because of its wastefulness through the frequent failure to recover seals shot at sea.
# # # rpjje fur seai 0f Alaska (practically now the only remaining
member of the group of fur seals), should be declared to be, to all
intents and purposes, a domestic animal, and its capture absolutely
prohibited except iu its home on the Pribilof Islands." Nineteenth
Century, June, 1893, p. 1038.
Sir George Baden-Powell, one of the British Commissioners, publicly declared before his appointment as a commissioner, that "as a
matter of fact, the Canadian sealers take very few, if any, seals close to
these (the Pribilof) islands.   The main catch is made far out at sea, -
and is almost entirely composed of females."
Dr. A. Milne Edwards, director of the Museum of Natural History at
Paris, alluding to the fur seals frequenting Bering Sea, says:
"What has happened in the Southern Ocean may serve as a warning
to us. Less than a ceutury ago these amphibia [fur seals] existed there
in countless herds. In 1808, when Fanning visited the islands of
South Georgia, one ship left those shores carrying away 14,000 sealskins belonging to the species Arctocephalns Australis. Be himself
obtained 57,000 of them and be estimated at 112,000 the number of
these animals killed during the few weeks the sailors spent there that
year. In 1822 Weddel visited the islands and he estimated at l,200/,000
the number of skins obtained in that locality. The jame year 320,000
fur seals were killed in the South Shetlands. The inevitable consequences of this slaughter were a rapid decrease in the number of these
animals. So, iu spite of the measures of protection taken during the
last few years by the governor of the Falkland Islands, the seals are
still very rare, and the naturalists of the French expedition of the"
Romanche remained for nearly a year at Terra del Fuego and the
Falkland Islands without being able to catch a single specimen. It is
a source of wealth which is now exhausted. It will be thus with the
Callorhinus ursinus in the North Pacific Ocean, and it is time to insure
to these animals a security wnich may allow them regular reproduction.
I have followed with much attention the investigations which have
been made by the Government of the United States on this subject.
The reports of the Commissioners sent to the Pribilof. Islands have
made known to naturalists a very large number of facts of great
scientific interest, and have demonstrated that a regulated system of
killing may be safely applied in the case of these herds of seals when
Iii
rm \
126
mm
there is a superfluity of males. What might be called a tax on celibacy was applied in this way iu the most satisfactory manner, and the
indefinite preservation of the species would have been assured if the
emigrants, on their way back to their breeding places, had not been
attacked and pursued in every way."    U. 8. Case, Vol. 1, App. 419.
The record contains the opinions of other scientific gentlemen of high
repute, in answer to writteu inquiries on this subject made by Prof. ■
Merriam, of the United States Department of Agriculture, and based
upon a full and accurate account of seal life.
Dr. Nehriug, Professor of Zoology in the Royal Agricultural College
of Berlin: " I am like yourself of the opinion that the remarkable
decrease of fur seals on the rookeries of the Pribilof Islands which has,
of late years, become more and more evident, is to be attributed mainly,
or perhaps exclusively, to the unreasonable destruction caused by the
seal-hunters who ply their avocation in the open sea. The only rational
method of taking the fur seal, and the only one that is not likely to
result in the extermination of this valuable animal, is the one which
has hitherto been employed on the Pribilof Islands under the supervision of the Government."    U. 8. Case, Vol. 1, App. 420.
Prof. Salvadori, of the Museo Zoologico, Turin, Italy: "No doubt
free pelagic sealing is a cause which will act to the destruction of the
seaHierds, and to that a stop must be put as soon as possible." U. S.
Case, Vol. 1, App. 422.
Prof. Von Schreuck, of the Imperial Academy of Sciences, St.
Petersburg: "lam also persuaded that pelagic sealing, if pursued in
the same manner in future, will necessarily end with the extermination
of the fur seal."    U. S. Case, Vol. 1, App. 422.
Prof. Giglioli, director of the Zoological Museum, Royal Superior
Institute, Florence, Italy: "In any case, all who are competent in the
matter will admit that no method of capture could be more uselessly
destructive in the case of Pinnipedia than that called pelagic sealing;
not only any kind of selection of the victims is impossible, but it is
admitting much to assert that out of three destroyed one is secured and
utilized, aud this for obvious and well-known reasons. In the case
of the North Pacific fur-seal, this mode of capture and destruction
is doubly to be condemned, because the destruction falls nearly exclusively on those, the nursing and pregnant females, which ought on no
account to be killed. * * * I quite agree with you in maintaining
that unless the malpractice of pelagic sealing be prevented or greatly
tea 127
checked, both in the North Pacific and in the Bering Sea, the economic extermination of Callorhinus ursinus is merely the matter of a
few years."    U. S. Case, Vol. t, App. 423.
Prof. Blanchard, of the Medical Faculty of Paris, and general secretary of the Zoological Society of France: " By reason of the massacres of which it is the victim, this species is advancing rapidly to its
total and final destruction, following the fatal road on which theRhy-
tina Stelleri, the Monarchus trophicalis, and theMacrorliinns angustiros-
tris have preceded it, to cite only the^great mammifers which but
recently abounded in. the American seas. Now, the irremediable
destruction of an eminently useful animal species, such as this one, is,
to speak plainly, a crime of which we are rendering ourselves guilty
towards our descendants. To satisfy our instincts of cupidity we voluntarily exhaust, and that forever, a source of wealth, which properly
regulated, ought, on the contrary, to contribute to tbe .prosperity of
our own generation and of those which will succeed it.
With
his harpoons, his firearms, and bis machines of every kiud, man with
whom the instinct of destruction attains its highest point, is the worst
enemy of nature and of mankind itself. Happily r while yet in time,
the savants sound the alarm. In this century, when we believe in
science, we must hope that their voice will not be lost in the desert."
Profs. Lilljeborg and Nordenskiold, of the Academy of Sciences,
Sweden unite in declaring: "As to the former question, the killing-of
the seals on the rookeries, it seems at present regulated in a suitable manner to effectually prevent the gradual diminishing of the stock.
If a wider experience should require some modifications in these regulations, there is no danger but that such modifications will be adopted. It
isevidently in the interest of the owners of the rookeries to take care that
this, source of wealth shall not be lessened by excessive exploitation.
Nor will there beany difficulty for studying the conditions of health and
thriving of the animals during the rookery season. As to pelagic
sealing, it is evident that a systematic hunting of the seals iu tbe open
sea on the way to and from or around the rookeries, will very soon
cause the complete extinction of this valuable, and, from a scientific
point of view, so extremely interesting and important animal, especially as a great number of the animals killed in this manner are pregnant cows, or cows temporarily separated from their pups while seeking food in tbe vicinity of the rookery. Everyone having some experience in seal bunting can also attest that only a relatively small part 128
iif
of the seals killed or seriously wounded in the open sea can in this
manner be caught. We are therefore persuaded that a prohibition of
pelagic sealing is a necessary condition for the prevention of the total
extermination of the fur seal."    U. 8. Case, Vol. l,App. 428.
Prof. Middeudorf, an eminent scientist of Russia: "The method of
treating these animals which was originally adopted by the Russian-
American Company at their home on the Pribilof Islands is still continued in the same rational manner, and has, for more than half a century, been found to be excellent, both on account of the large number
of seals taken and because they are not exterminated. So long as superfluous young males are killed, not only the existence but even the
increase of the herd is assured."    U. 8. Case, Vol. 1, App. 430.
Prof. Holub, of Prague, Austria-Hungary: "If the pelagic sealing
of the fur seal is carried on still longer, as it has been executed during the last years, the pelagic sealing as a business matter and a 'living' will soon cease by the full extermination of this useful animal."
U. S. Case, Vol.1, App. 433.
The abundance of fur seals at the Island of Juan Fernandez two
hundred years ago is shown by Dampier, who visited that is£and in
1683. In his Voyage Around the World, 5th ed., 1713, Vol. 1, pp. 88,
90, it is said:
"Seals swarm as thick about this island (of John Fernando, as he
terms it) as if they had no other place in the world to live in; for there
is not a bay nor rock that one can get ashore on but is full of them.
* * * Those at John Fernando's have fine, thick, short fur;
the like I have not taken notice of anywhere but in these seas. Here
are always thousands, I might say possibly millions of them, either
sitting on the bays or going and coming iu tbe sea around the island,
which is covered Avith them (as they lie at the top of the water playing
and sunning themselves) for a mile or two from the shore. When
they come out of the sea they bleat like sheep for their young, and -
though they pass through hundreds of other young ones before they
come to their own, yet they will not suffer any of them to suck. The
young ones are like puppies, and lie much ashore, but when beaten by
any of us they, as well as the old ones, will make towards the sea, and
swim very swift and nimble, tho' on shore they lie very sluggishly, and
will not go out of our way unless we beat them, but snap at us. A
blow on the nose soon kills them. Large ships might here load themselves with sealskins and traneoyl; for they are extraordinarily fat." 129
Another writer, referring to the destruction of fur seals in the southern seas, says: "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. On this barren spot their numbers were such that it has
been 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, 1821-2, 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 bkewise 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, 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 net in taking many
of our valuable fish; and in the Island of Lobos, in the River 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 tbe hunters shall not take them but at
stated periods, ages, etc."   Naturalist's Library, 95.
Giving due weight to all tbe evidence adduced by the respective
Governments, including the opinions of eminent naturalists in various
countries, it is absolutely certain —
That this race has been conceived, and has come into existence, upon
the islands of the United States in Bering Sea, which, by formal legislative enactment, have been set apart as a land home for these animals,
where they can breed, and rear their young, and renew their coats of
fur, and to which they may return, and for more than a century have
regularly returned, from their annual migration into the high seas;
That these animals, from the necessities of the race, must come into
existence, and for a large part of each year must abide, upon land;
That the United States, in every form in which it could be done,
consistently with the nature and habits of these animals, has taken
possession of, and appropriated, this race as its property;
11492 9 130
That the taking of fur seals for commercial purposes at their breeding
grounds on the St. Paul and St. George, where alone there can be a
discrimination between the sexes, will not itself endanger the existence
of the herd if—as was done by Russia and has been done by the United
States—the killing is restricted to such proportion of available males as
will leave a sufficient number for purposes of reproduction;
That the killing of these animals in large numbers at any other place
than their land home or breeding grounds will speedily result in the
loss of the race to the world;
That unrestrained pelagic sealing' in Bering Sea or in the North
Pacific Ocean, even if no seals be taken on the islands by the United
States or its lessees, will result in the extermination, within a very few
years, of the entire race frequenting those islands;
That but for the care, supervision, and protection bestowed upon
these animals at their land home by the United States, the race would
long ago have become extinct;
That if such care, supervision, or protection be withdrawn, the race
would be destroyed; and,
That the United States, by its ownership of the breeding grounds of
these animals is alone, of all the nations of the earth, in a position to
take or control the taking of these animals, so that their increase may
be regularly obtained for use without at all impairing the stock.
In the bight of the above facts, which can not be disputed by anyone familiar with the record, let us inquire as to the principles of law
and justice applicable to the case.
The particular question now under consideration involves two propositions, to be separately examined:
First, as to the right of property which is asserted by the United
States in the Pribilof herd of seals;
Second, as to the protection of the herd by the United States while
the seals are outside of the ordinary three-mile limit.
Much was said in the course of the argument as to the classification-
of these fur seals among animals. One theory is, that while not strictly
domestic animals, they are so nearly like animals of that class that,
in determining whether under any circumstances they can become the
subject of property, and if so, under what circumstances, they should
be classed as domestic animals, or, at least, as domesticated animals.
Another theory is, that they are animals ferainaturce, and not subject to
exclusive appropriation as property, except in conformity to the principles of law applicable to animals cf that class.   The first theory has 131
been carefully and elaborately examined and enforced by Senator Morgan. Nothing can be added to what the learned Senator has said
upon that subject. I propose to consider the subjects of property
and protection in the other aspect named, and will, therefore, inquire
whether the claim of the United States to own these seals is supported
by any principles of law universally recognized as controlling upon the
question of property in animals commonly classed as wild, rather than
domestic animals.
The main contentions of the United States, in support of its claim
of property, are these:
That while the general rule is that no one can have an absolute
property in things fierce natural, there are animals so near the boundary
drawn by the terms wild, tame, and reclaimed, that the question
must be determined by a consideration of their nature and habits in
connection with the grounds upon which the institution of property
stands;
That, according to the established rules of law prevailing in all civilized countries, the essential facts that render useful animals, classed
as wild animals, the subjects of property, when in the custody or control of, as well as while temporarily absent from, their masters, are the
care, industry, and supervision of man so acting on the natural disposition of the animals as to encourage their habitual return to a particular place and to his custody and power at that place, whereby he is
enabled to deal with them a* a whole, in a similar manner, and so as
to obtain from them similar beuefits, as in the case of domestic animals;
that for all purposes of property, animals so acted upon and dealt
with may be assimilated to domestic animals, even if they be not
strictly of that class;
That to this class the Pribilof fur seals belong, because at the same
season in every year they return to the same place, the islands of St.
Paul and St. George, where they become so far subject to the power of
the United States that its agents or licensees can treat them in many
ways as if they were domestic animals; that all that is needed to ensure
their return to and remaining upon those islands from year fco year,
whereby the benefits of an increase of their numbers can be obtained,
is that such agents and lessees shall abstain from repelling them
as they approach the land, defend them after they have arrived
against pursuit by hunters, disturb them as little as possible when
making selections for commercial purposes, and take males only for
purposes of commerce; and \im
132
That the United States, its agents and lessees, do all that is necessary to secure their return each year to, and their remaining at, the
Pribilof Islands for all the purposes for which they must come to, and
for a time abide, upon land.
These considerations, it is contended—assuming that these fur seals
are of the class commonly called animals ferx naturae—rest upon a principle fundamental in the institution of property, that principle beingthat
whenever any useful wild animals, the supply of which maybe exhausted
by indiscriminate slaughter, or by reckless handling, "so far submit
themselves to the control or dominion of particular men as to enable
them exclusively to cultivate such animals and to obtain the annual
increase for the supply of human wants, and, at the same time, to preserve the stock, they have a property in them; or, in other words, whatever may be justly regarded as the product of human art, industry, and
self-denial, must be assigned to those who make these exertions, as their
merited reward."
In opposition to this claim of property by the United States, Great
Britain contends that these seals are strictly animals fermnaturve; that
the only property in them known to the law is dependent on actual, physical possession; that the United States or its licensees have the exclusive
right to take possession of them only while they are on the islands of
St. Paul and St. George, but that such right is lost when they leave
the Islands and go into the high seas, for the purpose of obtaining fish
for food, even if they have, when so leaving, the intention to return
to their breeding grounds; that the citizens or subjects of all nations
have equally the right to kill or take possession of them in the high
seas; that while on the Islands neither the United States nor their
lessees take manual possession of the seals other than of those
actually killed; that, even if it be true that the care, industry, self-
denial, and protection bestowed upon these animals while on their
breeding grounds has secured, does now secure, and will alone secure,
this race from extermination by pelagic seahng, that fact can not
give a right of property to the United States; and that the right of
pelagic sealers to capture and kill these seals in the open seas, for
profit, by any methods they choose to employ, even by such as will
certainly or soon destroy the entire race, is supported by the established principles of international law.
While, in a sense, all property has its root in municipal law, I agree
that the question as to the ownership of these animals when they are 1 9Q
loo
in the open waters of the ocean, the highway of all peoples, is to be determined ultimately by the public law of nations—that is, by those principles common to, and recognized as binding by, all civilized countries
in their intercourse and relations with each other. No other law can be
appealed to for the settlement of a dispute between sovereign nations
as to the ownership of animals when found on the seas beyond their
respective territorial limits. But by what considerations are we to be
governed in ascertaining what the law of nations recognizes, allows, or
forbids?
The counsel for the United States contended, in argument, that in
determining what rights are recognized by the law of nations, the Tribunal is not to ignore, but must give effect to, those principles of right
reason, justice, humanity, aud morality which have their foundation in
the law of nature as applied to the institution of property. This view
was earnestly combated by the counsel of Great Britain, and it was,
in effect, said that the teachings and precepts of the law of nature
Avere of no importance in the present inquiry; that the rights of these
two nations could not be made to depend, in any degree, upon abstract
principles founded only on reason, justice, humanity, or morality, but
must be determined upon grounds of positive law, resting in the affirmative assent of the nations, independently of ethical considerations arising out of distinctions which the conscience of the world makes between
what is morally right and what is morally wrong, or between what is
supported by sound reason and justice and what is not so supported.
Of course, if there be any settled, recognized rules of the law of nations
governing the particular question under consideration, they must control our decision whatever may be our view of their justice. The two
nations interested are bound by such rules and the Tribunal may not
disregard them, or refuse to give effect to them. But if the precise
case before it is not covered by some positive rule, decision or precedent, founded on the conventions or established usages of the civilized
nations of the earth, and expressly set forth in the writings of public
urists, we are not, for that reason, to hold that it is not provided for by the law of nations. As a court sitting under municipal
authority would be bound, in the absence of precedent, to give judgment according to the principles of right derived from the whole
body of the law to which it may properly refer, so this Tribunal,
constituted for the determination of questions depending upon the law
of nations^may, and if it fulfills the objects for which it was constituted,
must, look into the recognized sources of that law and seek in the 134
domain of general jurisprudence for the rule of decision in the case
before it. One of the recognized sources of the law of nations are the
principles of natural reason and justice applicable to the relations
aud intercourse of independent political societies. Those principles may be said to have their origin in the Law of Nature, or in
what is sometimes called the Natural Law of Equity, because approved by the moral sense of mankind. No earthly tribunal, administering justice between individuals, or between nations, if unfettered by
statute, or by binding precedent, may rightfully disregard the rules of
reason, morality, humanity, and justice derived from that law. Those
rules are not the less binding because not formulated in some book,
ordinance, or treaty. Certainly, this Tribunal of Arbitration must
regard the rules of international morality and justice, appUcable to the
Subject, and fairly to be deduced from the rights and duties of States
and from the nature of moral obligations, as an integral part of the
law of nations by which the matters submitted to it are to be determined. The institution of property is ordained by society for its
improvement and preservation. And there are certain rules, arising out of the very necessities of that institution, which are common to the jurisprudence of all civilized nations. While these rules
may be more frequently found recognized in municipal law, they
are so grounded in the well-being of man, and so thoroughly supported
by right reason, and natural justice, as to have become universally recognized, and, therefore, must be regarded as part of the common law of
civilized countries.- .Nations, no more than individuals, may disregard
those rules, for upon their observance depends the existence of organized
society and the security of government among civilized peoples.
That I am not in error in supposing that these views have been generally accepted and are enforced where action is not controlled by statutes or by the provisions of treaties, will appear from the decisions of
courts and from the works of writers upon international law.
Chief Justice Marshal], delivering tbe judgment of the Supreme Court
• of the United States, after observing that the law of nations is in
part unwritten and in part conventional, said that "to ascertain that
which is unwritten we resort to the great principles of reason and
justice; but as these principles will be differently understood by
different nations under different circumstances, we consider them as
being, in some degree, fixed and rendered stable by a series of judicial
j^^isions." Thirty Hhds. of Sugar vs. Boyle, etc., 9 Cranch's Reports,
191,197. 135
In the case of The Helena, Lord Stowell, considering the principles
of international law, observed ■ ■ that some people have foolishly imagined that there is no other law of nations but that which is derived
from positive compact and convention." 4 Robinson's Admiralty,
Rep. 7.
Bacon, in. his Dissertation on the Advancement of Learning, says
that "there are in nature certain fountains of justice, whence all civil
laws are derived but as streams; and like as waters do take tinctnres
and tastes from the soils through which they run, so do civil laws vary
according to the regions and governments where they are planted,
though they proceed from the same fountain."   Bk. 2, chap. 23, sec. 44.
Blackstone declares that the law of nature being coeval with mankind, and dictated by God himself, "is binding all over the globe in all
countries, and at all times," and that "no human laws are of any validity
if contrary to this, and such of them as are valid derive all their
force and all their authority, mediately or immediately, from this
original." Aud he also says: "As it is impossible for the whole race of
mankind to be united in one great societv, they must necessarily divide
into many, and form separate states, commonwealths, and nations,
entirely independent of each other and yet liable to mutual intercourse.
Hence arises a third kind of law to regulate this mutual intercourse,
called the 'law of nations,'which, as noneof these states will acknowledge
a superiority in the other, can not be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties,
leagues, and agreements between those several communities; in the
construction, also, of which compacts we have no other rule to resort to
but the law of nature, being the only one to which all the communities
are equally subject, and therefore, the civil law very justly observes
that quod natural is ratio inter omnes homines const Unit vocatur jus gentium,."   Bk. 1, p. 41, 43.
. In his Commentaries on International Law Sir Robert Phil li more
says: " Grotius enumerates these sources [of international law] as being
Hpsanatura, leges divinw, mores, et pacta.' In 1753 the British Govern-.
nieiit made an answer to a memorial of the Prussian Government, which
was termed by Montesquieu reponse sans replique, and which has been
generally recognized as one of the ablest expositions of international
law ever embodied in a state paper. In this memorable document the
law of nations is said to be founded upon justice, equity, convenience,
and the reason of" the thing, and confirmed by long usage." 1 Philli-
more, eh. 3, sec. 20.   In the judgment delivered by him in Queen vs. 136
Keyn, Law Rep., 2 Exch. Div. 214, Dr. Phillimore states that this answer
was framed by Lord Mansfield and Sir George Lee. The same learned
author declares that the sources from which international jurisprudence
is derived embrace not only the universal consent of nations, as expressed
by positive compact, and as implied by usage, custom, and practice,
as disclosed by precedents, treaties, public documents, marine ordinances, the decisions of international tribunals, and tbe works of eminent writers upou international jurisprudence, but, also, "the Divine
law, embodying the principles of eternal justice, implanted by God on
all moral and social creatures, of which nations are the aggregates and
of which governments are the international organs," as well as "the
Revealed Will of God, enforcing and extending these principles of
natural justice," and " Reason which governs the application of these
principles to particular cases." 1 Phillimore, p. 67, c. 8, § 58. In the
above case of Queen vs. Keyn, Sir William Baliol Brett, now Lord Esher,
Master of the Rolls, after observing that the authorities made it clear
that the consent of nations was requisite to make any proposition a
part of the law of nations, well said: "Their consent is to be assumed
to the logical application to given facts of tbe ethical axioms oT right
and wrong. Such au application is the foundation of every system of
law, including necessarily the law of nations." L.R., 2 Exch. Div, 131.
Chancellor Kent, whose writings are known to the jurists of all
nations, states in his Commentaries, that the most useful and practical
part of the law of nations is, no doubt, instituted or positive law,
founded on usage, consent, and agreement, and that it would be improper
to separate this law entirely from natural jurisprudence and not to
consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of
man, aud the same sanction of Divine revelation, as those from which
the science of morality is deduced, and he says: "There is a natural
and a positive law of nations. By the former every state, in its relations
with other states, is bound to conduct itself with justice, good faith,
and benevolence; and this application of the law of nature has been
called by Vattel the necessary law of nations, because nations are
bound by the law of nature to observe it; and it is termed by others
the internal law of nations, because it is obligatory upon them in point
of conscience." "We ought not, therefore," that great jurist continues,
" to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that governments are not so strictly
bound by the obligations of truth, justice, and humanity, in relation to 137
other powers, as they are in the management of their own local concerns." States or bodies politic, he observes, " are to be considered as
moral persons, having a public will, capable and free to do right and
wrong, inasmuch as they are collections of individuals, each of whom
carries with him into the service of the community the same binding
law of morality and religion which ought to control his conduct in private
life. The law of nations is a complex system, composed of various
ingredients. It consists of general principles of right and justice,
equally suitable to tbe government of individals in a state of natural
equality and to the relations and conduct of nations; of a collection
of usages and customs, the growth of civilization and commerce
and a code of conventional or positive law." His conclusions upon
this subject are thus stated: "In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by
principles fairly to be deduced from the rights and duties of nations
and the nature of moral obligation; and we have the authority of the
lawyers of antiquity, and of some of the first masters in the modern
school of public law, for placing the moral obligations of nations and
of individuals on similar grounds, and for considering individual and
national morality as parts of one and the same science. The law of
nations, so far as it is founded on the principles of natural law, is
equally binding in every age and upon all mankind." Kent's Commentaries, Part 1, Led. 1, pp. 2-4. These views of Chancellor Kent seem
to be approved by the instructed judgment of Sir Travers Twiss, the
eminent publicist of Great Britain, who has himself divided the Law
of Nations into Natural or Necessary Law, and Positive or Instituted
Law.    The Law of Nations, ch. vi, sees. 82 and 105, ed. 1884, pp. 145,176.
Ortolan, in his work on International Rules and Diplomacy of tbe
Sea, thus states his views: "It is apparent that nations not having
any common legislator over them have frequently no other recourse for
determining their respective rights but to that reasonable sentiment of
right and wrong, to those moral truths already brought to light, and to
those which are still to be demonstrated. This is what is meant when
it is said that natural law is the first basis of international law." Vol.
1, bk. 1, ch. iv.,p. 71.
Vattel, in the preface of his celebrated work, states that the moderns
are generally agreed in restricting the appellation of the law of nations
to that system of right and justice which ought to prevail between
nations or sovereign states. And in the body of his work he says:
"As men are subject to the law of nature, and as their union in civil m
h
life
mi
138
society can not have exempted them from the obligation to observe
those laws, since by that union they do not cease to be men, the entire
nation, whose common will is but the result of the united wills of the
citizens, remains subject to the law of nature, and is bound to respect
them in all her proceedings." We must, therefore, he says,, apply to
nations the rules of the law of nature, where they can be applied in a
manner suitable to the subject, "in order to discover what their obligations are, and what their rights; consequently, the law of nations is
originally no other than the law of nature applied to nations." Ch. 56,
sees. 5, 6.
Wheaton, whose authority is recognized by all publicists, says:
"International law, as understood among civilized nations, may be
defined as consisting of those rules of conduct which reason deduces, as
consonant to justice, from the nature of the society existing among
independent nations, with such definitions and modifications as may be
established by general consent." International Law, Pt. 1, ch. 1, sec.
414. Pomeroy, an American writer of distinction, observes: " What is
called international law in its general sense, I would call international
morality. It consists of those rules founded upon justice and "equity,
and deduced by right reason, according to which independent states
are accustomed to regulate their mutual intercourse, and to which they
conform their mutual relations." International Law, ed. 1886, C. 1, S.
29. Woolsey, another American writer, cited by both sides iu argument, says: "It would be strange if the state, that power which defines
rights and makes them real, which creates moral persons or associations with rights and obligations, should have no such relations of its
own—should be a physical and not a moral entity. In fact, to take the
opposite ground would be to maintain that there is no right and wrong
in the intercourse of states, and to leave their conduct to the sway of
mere convenience."   Ed. of 1892.
Burlamaqui, iu bis Principles of Natural and Politic Law, (p. 14),
after quoting with approval the observation of Hobbes that natural
law is divided into the natural law of man and the natural law of
states, and that the latter is what is called the law of nations, presents
the same general view: "Thus natural law and the law of nations
are in reality one and the same thing, and differ only by an external
denomination. We must, therefore, say that the law of nations, properly so called, and considered as a law proceeding from a superior, is
nothing else but the law of nature itself, not applied to men, considered
simply as such, but to nations, states, or their chiefs, in the relations
they have together, and the several interests they have to manage I'HIL	
139
between each other." Ed. 1823, Pt. TI, c. 6, pp. 135, 6. In this view
Puffendorf expressed his concurrence, observing that he recognized "no
other kind of voluntary or positive international law, at least none
having force of law, properly so called, and binding upon nations as
emanating from a superior." Vol. 1, book 2, c. 3, § 23, p. 243, 5th. ed.;
ed. 1729, English. 119.
Heinnecius: " The law of nations is the law of nature itself respecting or applied to social life and the affairs of societies and independent
states. * * * Hence, we may infer that the law of nature doth
not differ from the law of nations, neither in respect of its foundation
and first principles-nor of its rules, but solely with respect to its object,
Wherefore their opinion is groundless who speak of, I know not what,
law of nations distinct from the law of nature." Vol. I, Ed. 1763, 8ec.
21, p. 14,
Hautefeuille: "Whatis trne, and in my opinion, incontestable, is
that notions of what is just and right, and what is unjust are found in
all men: it is that all individuals of the human race that are in the
enjoyment of reason have these notions graven upon their hearts, and
that they, bring with them into the world when they are born. These
notions do not extend to all the details of law as do civil laws, but they
have reference to all the most prominent points of law. It cannot
be denied that the idea of property is a natural and innate idea. * *
The natural or divine law is the only one that can be applied among
nations —among beings free from every bond and having no interest
in common. * International law is, therefore, based upon the
divine aud primitive law; it is all derived from this source." Vol. 1,
p. 46,1848.
Martens: "Each nation being considered as a moral being, living in
a state of nature, the obligations of one nation towards another are no
more than those of individuals, modified and applied to nations; and
this is what is called the natural law of nations. It is universal and
necessary, because all nations are governed by it, even against their
will."   Law of Nations, German, 4th ed. 1829, p. 2 of Introduction.
Ferguson: " International law, being based on international morality,
depends upon the state of progress made in civilization. * * * Investigating thus this spirit of law, we find the definition of International
Law to consist of certain rules of couduct which reason, prompted by
Conscience, deduces as consonant to justice, with such limitations and
modifications as "may be established by general consent, to meet the
exigencies of the present state of society as existing among nations aud
which modern civilized states regard as binding on them in their rela- lilfei
140
tions with one another, with a force comparable in nature and degree
to that binding the conscientious person to obey tbe laws of his country."
Manual of International Law, Dutch, 1884, Vol. 1, Pt. II, chap. 3, sec.
21, p. 66.
Carlos Testa: "This application of the precepts of natural law, which
obliges nations to practice the same duties that it prescribes for
individuals, constitutes the law of nations, which, when considered
according to its origin (which is based upon natural law), is also called
the primitive or necessary law of nations. * * * The origins of international law are therefore three in number: (1) The reason and the
conscience of what is just and unjust, independent of any prescription;
(2) custom; (3) public treaties. The principles, practices, and usages
of the law of nations, in accordance with these limits, regulate the
conduct of nations, aud it is for this reason that in their generality they
constitute international law. Conventional law may abrogate the law
of custom, but it loses its character as a law if it establishes provisions
at variance with natural law." Le Droit International Maritime
(Portuguese), translated by H. Boutiron, 1886, Pt. 1, ch. 1, p. 46.
Looking, then, to the reason of the thing, and to the concurrence of
views upon this point, among jurists and publicists, I must withhold my
assent from the proposition that this Tribunal, in ascertaining whether
the law of nations sanctions and supports the claim of property made
by the United States, may not consider—the question not being concluded by treaties or precedents—what is demanded in respect to the
subject of controversy by the law of nature, that is, by the principles of
justice, sound reason, morality, and equity, as recognized and approved
by civilized peoples.
The question was propounded in argument whether aiiy precedent
precisely in point was recorded in the writings of publicists, or in the
judgments of the courts, or in the statutes or ordinances of maritime
nations, that supports the claim of the United States to own these
seals and protect them when they are in tbe seas, beyond territorial jurisdiction. This question must, of course, be answered in the negative, because, so far as is known, tbe case has never before arisen. And it would
not now be a practical one but for the intervention of pelagic sealing,
the prosecution of which involves the,very existence of this race
of animals. It has not heretofore been asserted in behalf of any
nation that tbe doctrine of the freedom of the seas recognized it as a
right, in individuals, even by methods barbarous and cruel, to exterminate a race of useful animals, found by them in the high seas, and
thereby deprive the world of all benefit to be derived from them.   It 141
is more pertinent to inquire whether this claim of property is supported by principles of morality, reason, equity, and justice every
where recognized as vital in organized society. It is stiU more pertinent to inquire whether the law of nations furnishes any precedent
opposed or hostile to the claim made by the United States of property in
these animals, which are conceived, and, if the race is to exist at all,
must be born and reared, on land, and which, although passing much
time on the high seas, periodically return to, and, for a time, abide upon
the terretory of the United States. And they return to and abide upon that territory, under such circumstances, that the United States,
the sovereign and owner of the land, and it alone, of all other nations,
can, by the exercise of care, industry, and self-denial take the increase
for the benefit of the world, without, in any degree, diminishing or
impairing the stock. If there is no recorded precedent based upon
actual dispute between nations, which would determine such a case,
we may properly inquire whether there is such an agreement among
civilized nations, in respect to the institution of property and the
rules governing the acquisition of property, as will justify us in
adjudging that the present claim of the United States rests upon
principles universally recognized. If the rules embodied in the concurring municipal law of the different countries of theearth, andfounded
in reason, justice, and the necessities of organized society, will sustain
this claim, our judgment to that effect will be in accordance with the
law of nations; for nothing to the contrary appearing in positive enactments, binding upon this Tribunal, it must be assumed when dealing
with a question of property, that the nations assent to such rules in
the law of property as are common to tbe jurisprudence of civilized
countries. It has been well observed by Sir James Mackintosh, in his
famous Discourse on the Law of Nature and Nations, that the two institutions of property and marriage constitute, preserve and improve
society; that upon their gradual development depends tbe progressive
civilization of mankind; that on them rests the whole order of civil life;
that the duties of men, subjects, princes, lawgivers, and States are all parts
of one system of universal morality; and that " the principle of justicej
deeply rooted in the nature and interest of man, pervades the whole
system, and is discoverable in every part of it, even to its minutest
ramification in a legal formality, or in the construction of an article in
a treaty." When, therefore, a Tribunal, administering the Law of
Nations, is required to consider a question of property, it may not disregard what the principles of justice, right reason, and the necessities 142
of society, evidenced by tbe concurring municipal law of the world,
demand at its hands.
Any other view is, I submit, inadmissible. The law of self-defense
is a part of the law of nations, not so much because it is declared
to be so by legislation or treaty, but because it is founded in principles of justice and right that are recognized among all peoples.
Murder and theft are crimes against society, whether so declared by
statute or not, and they would be so regarded by any Tribunal administering the law of nations, if its judgment depended upon its
estimate of those acts, not because they are made crimes by any
statute or convention binding upon the world, but because all mankind, in recognition of the principles of eternal and natural justice,
implanted in man by the Creator, regard them in that light. It is said
that even if there be grounds of reason and justice, that is of natural
law, why it might be proper and desirable that these fur seals should
be held to be the subject of property, such considerations are of no
weight whatever in the absence of the general assent of nations that
they may be so regarded. Such an argument leads to this strange
conclusion: That in the absence of any affirmative assent of nations
to a right decision, that is, to a decision conformable to the principles
of sound reason, justice, and the necessities of mankind, we must,
for the want of such assent, make a wrong decision, that is, one
forbidden by sound reason and justice and hostile to the best interests of society. Thus, according to the argument presented, a Tribunal
administering international law must, in the absence of the express
assent of the nations, reject every new affirmative proposition, however
strongly supported by reason, justice, and morality, and thereby
establish the contrary as the rule that should govern the conduct of
nations. True wisdom, indeed, the Treaty and public law, I submit, require that this Tribunal accept the doctrine that whatever is
demanded by right reason, justice, and morality has the sanction of
the law of nations, unless it has been otherwise determined by the general assent of mankind. This was tbe principle declared by Mr. Justice
Story, when he said: "I think it may be unequivocally affirmed that
every doctrine that may be fairly deduced by correct reasoning from
the rights and duties of nations and the nature of moral obligations,
may theoretically be said to exist in the law of nations; and unless it
be relaxed or waived by tbe consent of nations, which may be evidenced
by their general practice and custom, it may be enforced by a court
of justice wherever it arises in judgment." La Jeune EugSnie, 2 Mason's
Reports, 449. 143
There are rules governing the acquisition of property, not always
sanctioned by legislation, but yet common to the jurisprudence of all
countries, and which we may not ignore or refuse to recognize. I cannot conceive it to be possible that the Tribunal, in deciding a question
of property in animals, found in the high seas, may disregard the rules
of property which are imbedded in the concurring municipal law of
civilized nations. That must be deemed the law of all to which all
have assented. And so if the Tribunal should hold that these fur
seals are the property of the United States when found in the high seas,
it would thereby recognize the right of that country to protect them
against pelagic sealing, not because that right is secured by statute or
treaty, but because by the universal judgment of nations, the owner of
property may employ for its protection and preservation such means,
not forbidden by law, as may be necessary to that end. It is true, in
fact, that the recognized doctrines as to possession, detention, right of
possession, and right of property, as they have been applied in cases
which have arisen between independent states, are derived from tbe
principles of natural law as understood and as expounded by statesmen and public jurists.
While there are wild animals whose nature and habits preclude the
possibility of their being appropriated as property, except when they are
confined or are otherwise in actual custody, there are others, valuable
to mankind and usually assigned to that class, which, by the common
law of the world, may, under given circumstances, become the property
of man, without being held in continuous, actual possession.
Attention will first be given to the Roman law, because Reason, which
governs the application of the principles of justice to particular cases, is
itself "guided and fortified by a constant reference to analogous cases
and to the written reason embodied in the text of the Roman law, and in
the works of commentators thereupon." 1 Phillimore, c. 8, sec. 58.
The same author observes that "the Roman law may, in truth, be
said to be the most valuable of all aids to a correct and full knowledge
of international jurisprudence, of which it is indeed, historically speaking, the actual basis." Again : "Independently of the historical value
of the Roman law as explanatory of tbe terms and sense of trea ties
aud of the language of jurists, its importance as a repository of decisions,
the spirit of which almost always, and the letter of which very frequently,, is applicable to the controversies of independent States, can
scarcely be overstated. From this rich treasury of the principles of
universal jurisprudence, it will generally be found that the deficiencies 144
of precedent, usage, and express international authority may be supplied. Throughout the greater portion of Christendom it presents to
each State what may be fairly termed their own consent, bound up in
the municipal jurisprudence of their own country; and this not merely
to the nations of Europe, whose codes are built on the civil law, but to
the numerous colonies and to the independent States which have sprung
from those colonies, and which cover the globe." 1 Phillimore sees. 36
and 37. Lord Stowell said that a great part of the law of nations was.
founded on the civil law. The Maria, 1 Robinson's Adm. Rep., 363.
"A great part, then, of international law," Henry Sumner Maine says,
•' is Roman law spread over Europe by a process exceedingly like that
which a few centuries earlier had caused other portions of Roman law
to filter into the interstices of every European legal system. * * *
In a book published some years ago on Ancient Law, I made this remark:
' Setting aside tbe Treaty Law of Nations, it is surprising how large a
part of the system is made up of pure Roman law. Wherever there is
a doctrine of the Roman jurisconsults, affirmed by them to be in harmony with the jus gentium [natural law], the Publicists have found a
reason for borrowing it, however plainly it may bear the mark of. a
distinctive Roman origin.' * * * The greatest function of the law
of nature was discharged in giving birth to modern' international law.
* * * The impression that the Roman law sustained a system of
what would now be called international law, and that this system was
identical with the law of nature, had undoubtedly much influence in
causing the rules of what the Romans called natural law to be engrafted
on and identified with the modern law of nations." Maine's International Law, pp. 13,17, 28. Van Leeuwen: "The Roman law is at the
present day almost everywhere, and by every nation upheld as a common law of nations, and adopted in cases where particular laws or
customs fail." Roman-Dutch Law, Vol. 1, Bk. 1, Ch. 1, sec. 11, p. 3,
Ed. 1881, Kotze's Translation. And, "it will generally be found," says
Halleck, " that the deficiencies of precedent, usage, and express international authority may be supplied from the rich treasury of the Roman
civil law. Indeed, the greater number of controversies between States
would find a just solution in this comprehensive system of practical
equity, which furnishes principles of universal jurisprudence applicable
alike to individuals and to States."   1 Halleck's International Law, c.
2, sec. 21.
These authorities justify recourse to the Roman law, as expounded
by jurists and commentators, for those principles of equity, right,
and justice that constitute a part of the law of nations. 145
It is said in the Institutes of Justinian: