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The seal arbitration MacMaster, Donald, 1846-1922 1893

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The area of Behring Sea is about 800,000 square miles.
It is the northern part of the Pacific Ocean, and washes
the North East Coast of Asia and the North West Coast
of North America. The Aleutian Islands, which extend
from the Peninsula of Alaska in a south westerly direction across the Pacific Ocean to within about three hundred miles of Kamtchatka, mark its southern boundary ;
while at the north it is separated from the Arctic Ocean
by Behring Straits. The Straits separate Asia from North
America, and at their narrowest part are about 50 miles
in width. The extreme width of Behring Sea from East
to West is about 1200 miles. Its greatest length is about
800 miles. The entrance to the sea from the south is
through the water stretches or | passes | of the Aleutian
Archipelago—several of which are upwards of fifty miles
in width, and through the stretches of open sea separating
the Coast of Asia from the Commander Islands, and, the
Commander Islands from the Aleutian group—stretches
respectively, of about one hundred and two hundred miles.
The entrance to the sea from the north is by Behring
Straits. The whole extent of the sea has been navigated
without let or hindrance by British and other nationals
from an early period for the general purposes of commerce and adventure.
It was only for a brief period in 1821—that any restriction was suggested with regard to portions of the sea
j s===-
adjoining the coast—a restriction which on protest was
promptly withdrawn. The Robben Island near the
Asiatic Coast South of Behring Sea, and the Commander
Islands before referred to also contain seal " rookeries."
They belong to Russia.
The Pribyl off Islands contain the principal " rookeries '
or breeding resorts for the seals in the eastern part of the
Behring Sea. They are four in number—but the seals
resort only to the two principal, St, Paul and St. George.
The Pribyloff group was discovered by a Russian whose
name it bears, about 1^786. It is situated in latitude 5Y °
north, about 300 miles from the main land of Alaska,
and about 200 miles north of Unalaska, one of the islands
of the Aleutian Archipelago.
To these two islands the female seals resort about
the middle of July of each year, and almost immediately
after give birth to their young. The males, about the
same time or a little earlier take up their positions on the
rookeries, each attempting to establish his own seraglio.
Between these, violent conflicts take place for the possession of coveted females. Conception takes place in
the females very shortly after the delivery of their young.
The mothers generally remain on or near the island
until the young pups are able to swim. It is while the
seals are on the Island, that portions of them, chiefly
males between the age of three and seven years, are driven
apart and clubbed to death for their skins, under regulations established on the Islands.    As a rule the herd, male
V  I and female, or more correctly what is left of it takes its
departure about the end of August or  the  middle of
September,   going   southward   through  the   passes   of
the   Aleutian   Islands—and   hundreds   of miles   south
of them into the broad expanse of the Pacific Ocean.   The
northern migration   again   commences   in  January   or
February, the seals passing along the coasts of California
and British Columbia through the Aleutian passes and
into the Behring Sea, finally reaching the breeding islands
in July.    The seals are  hunted on the open waters  of
Behring Sea, and during their journey northward, when
many of the females are gravid with young—are killed by
the Pelagic sealers.    This sort of killing is the subject of
special complaint by the American Government ; while
on the other hand it is contended that the main cause of
the diminution in the number of the seals is the reckless and indiscriminate killing of them on the breeding
islands  by   the   lessees   of that   government.      There
can be little doubt that both modes of killing urgently
called  for   prudent  regulation, and for the  protection
of the seal against the acts of man,  but the jurisdiction
of the   Paris  Tribunal   was  not   sufficiently   large   to
enable it to deal  with the whole   subject.     For   this
reason it just escaped being the greatest of International
Courts.    The questions of right and jurisdiction unreservedly .submitted to it wTere treated and decided on
lines that have received the approbation of all the best
contemporary jurists.    This result is what was expected
from a tribunal composed of the most eminent publicists
and lawyers of our day.   But they were restricted in their
finding upon the second branch of the submission—the
framing of regulations for the preservation of the seal
race.    Their decisions on questions of right and jurisdic- V
/\ US*-
tion are in conformity with the well settled principles
of international law. Had the tribunal been given a
free hand to frame regulations for the protection and
preservation of the seal species it would have added a
fresh chapter to international law. The^ indicate in
xj^-y^ their recommendations—not only the want of complete
jurisdiction—but also how the chapter might have been
The recent difference between Great Britain and the
United States in regard to sealing in Behring Sea, took
rise from the seizure by American Cruisers of Canadian
sealing vessels frequenting that sea in 1886. Great
Britain and the United States were at peace—and under
the circumstances the seizure of the Canadian vessels at
distances varying from 60 to 100 miles from the nearest
land—was an act of war. The seized vessels were conveyed to Sitka in Alaska and there the masters and mates
were tried in a Prize Court and condemned to fine
and imprisonment, their vessels being detained and
their crews turned adrift for the alleged violation of a,
statute of the United States—which provides that " No
person shall kill an otter, mink, martt&aC/sable or fur-seal
or other fur bearing animal within the limits of Alaska or
the waters thereof." Against these seizures and condem-
nation Great Britain protested, pointing out that such
seizures on the high seas were in violation of the law of
nations. To this protest the American Government re-
ioined that the seizures and condemnation were made in
virtue of certain clauses of the revised statutes of the
United States regulating the taking of Seals and other fur-
I bearing animals in the waters and territory of Alaska. The
judgments in effect held that the Behring Sea was mare
clausum—and was ceded as such—the water as well as
the land—'by Russia to the United States in 1867.
This is the first appearance of the mare clausum doctrine
in connection with the controversy; It was strongly
combatted by Great Britain from the outset. The British
Foreign Secretary promptly pointed out that at and long
before the cession of Alaska to the United States, Russia
had formally recognized that Behring Sea was open to
the ships of all nations—and that when Russia in 1821
had attempted to enlarge the jurisdiction from three
miles to 100 miles from the Shore.on the North West
Coast of America and East Coast of Asia—both England
and the United States protested against any excess of
maritime jurisdiction beyond the 3 miles recognized by
international law and that these protests resulted in the
formal abandonment by Russia of the claim to extended
jurisdiction. It will be seen that the judgment of the
Alaskan Court went further than the most extreme pretentions of Russia—and assumed that Russia practically
owned the Behring Sea and that it was transferred to
the United States wxith the Islands in it as well as the
main land of Russian America.
The wording of the Treaty does not justify this interpretation, as all that the Emperor of Russia transferred
was within prescribed bounds "his territories, and his
sovereignty over them." The British protest, too, made
clear that it was beyond the power of Congress to apply
the municipal law of the United States bevond three
miles from its own Shores—saving against its own
citizens, and that other Nationals could not be deprived -   ..-
-    —-^^^^^^p
of the freedom of the seas by any amount of legislation
at Washington.    The seizures ceased for a season.
In 1887 Mr. Bayard, then American Secretary of State,
announced the release of the vessels seized, the discharge of persons arrested—" but without conclusion
of any question that may be found to be involved in
these cases of seizure."
Further seizures were made in 1887 and 1889 and
against these, strong remonstrances were addressed to the
American Government. These seizures resulted in a
long correspondence between the two Governments—
and that correspondence eventuated in the Treaty of the
29th of February, 1892—providing for reference to an
international tribunal of the matters that had formed
the subject of the correspondence.
It will be found that during this correspondence the
United States—not only changed the original ground
put forward for the making of the seizures—but took up
fresh ground including not merely the validity of the
title derived from Russia—but a right of ownership in
and of protection of the Seals. In order to a right understanding of the treaty it is necessary to refer to the correspondence showing the scope of the subject matter in
controversy and in order to rightly understand the award
it is necessary to recur to both the treaty and the correspondence.
The protests of Great Britain against the seizure of its
ships on the high seas, and the  defence of the United 9
States that the seizure was made and penalties imposed
in virtue of a municipal law of the United States need
not be referred to, further than to add, that the Canadian
Government took prompt steps to test the strength of
this pretention by applying to the Supreme Court of the
United States for a writ of prohibition to restrain the
execution of the Alaskan judgment in the case of the
W. P. Sayward—one of the seized vessels The Supreme
Court heard arguments, but evaded a decision on the
validity of the seizures, holding that as the question of
the jurisdiction of the Alaskan Court had not been raised
when the case came up for trial in Alaska it could not be
raised in appeal. The Court made no intimation of its
opinion—and the owner of the W. P. Sayward, and the
Canadian Government took nothing by their motion. The
application, however, was a clever tactical manoeuvre
and might have resulted in the settlement of the question
of international law in the highest court of the United
States—in which case the tribunal of arbitration would
in all probability have never had an existence—or at all
events a reference on other lines would have been
On the 12th November, 1887, while the conflict
as to jurisdiction in Behring Sea was going on it
would appear from the correspondence that Mr. Phelps,
the American Minister to England, had an interview
with the Marquis of Salisbury, the British Secretary of
State for Foreign Affairs, in which Mr. Phelps proposed—" that by mutual agreement of the two Governments a code of regulations be adopted for the preservation of the seals in the Behring Sea from destruction at
improper times, and by improper means by the citizens
of either countries—such agreement to be entirely irres- I 10 ,
pective of any questions of jurisdiction in those waters."
In this view—reported Mr. Phelps to his Government—
" 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 ^
bd adequate for that purpose."
The suggestion was for the preservation of uthe Seals
in Behring Sea"—and the Pribyloff Islands being
situated in that sea—the Marquis of Salisbury might
well have supposed that the f code of regulations" would
extend to the Islands containing the " rookeries " to
which the Seals resorted from the sea, in the breeding
By a d^patch dated February 7th, 1888, Mr. Bayard
communicated to Mr. Phelps the views of his Government upon the point submitted. It is stated concisely
by Mr. Justice Hanlan, one of the arbitrators, thus, and
may be designated as the
" 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, north of 50° of north
latitude and between 160 ° of longitude west and 170 °
of longitude east from Greenwich, during the period
intervening between April 15th and November 1st."
This proposal is a decided extension of water boundary,
embracing practically the whole of Behring Sea, and
a large slice of the Pacific Ocean outside of Behring
Sea and south of the Aleutian Islands.   The proposal k.
does not in express terms exclude the Aleutian and Pri-
byloff Islands, and the killing with "destructive weapons "—is not so restricted as to exclude killing with
clubs,—the method in use for extinguishing seals, on
the Pribyloff Islands. However, no specific reference is
made to killing on the islands.
When this proposition was communicated to the
Marquis of Salisbury it was submitted to the Russian
Minister, and after consultation between the representatives of the three powers Lord Salisbury proposed that:
" With a view to meeting the Russian Government's
wishes respecting the waters surrounding Robben Island,
the whole of the Behring Sea, those portions of the sea
of Okhotsh, and of the Pacific Ocean north of latitude
47 ° should be included in the proposed arrangement."
This is another proposed addition to seal area.
Lord Salisbury also proposed that the close season
should terminate on 1st of October instead of on 1st
November as proposed by Mr. Bayard.
There is no suggestion in Lord Salisbury's counter
proposal that the regulations should extend to the land
or the territorial waters of either power. The proposed
arrangement was however to be " provisional in order
to furnish a basis for negotiation, and without definitely
pledging our governments "—as Lord Salisbury expressed
it in a letter to Sir Julian Pauncefote the British Minister
at Washington.
In May 1888, Mr. Bayard declared his willingness to
accept the provisional arrangement as amended by Lord
Salisbury—expressing however a preference for the 15th
of October, rather than the first as the termination of
the " close time." 12
The Canadian Government objected to the basis of
negotiations—and for the time the proposal and counter
proposal came to naught.
In September 1888, Mr. Phelps, wrote to Mr. Bayard,
complaining bitterly of the destruction of the seals u in
the open sea " and concludes :
" 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 Ihe slightest
" hesitation."
In other words the right of the Canadian vessels to
the freedom of the seas was to be forcibly denied in order
that a land interest of the American Government should
not suffer. Mr. Phelps advice was a direct invitation
to employ force.
On the 24th October, 1889, a conference took place
at Washington, between Mr. Blaine, the Secretary of
State in President Harrison's Administration, and Sir
Julian Pauncefote. The latter reports the interview, the
accuracy of which, is not disputed : Mr. Blaine
stated that the seizures of the Canadian vessels had taken
place " under the belief that it was warranted by the
" Act of Congress, and the President's proclamation. In
" this view the department had been confirmed by the
" District Court of Alaska * I observed that this appear-
" ed like an assertion of the mare clausum doctrine, which n
1 9
I I could hardly believe would be revived at this 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."
This wTas a practical abandonment of the mare clausum
pretension in virtue of which and of the acts of Congress,
the judgment had been rendered by the Alaskan Courts
imposing fines and penalties on the Masters and Mates
captured while sealing in the Behring Sea at distances
of from 60 to 100 miles from the shore.
The Secretary of State proceeded however to make
the following formal statement of the American position
at the same interview Oct. 24th, 1889:
" This Government claimed the exclusive right of
seal fishery, which the United States and Russia before
them, had enjoyed for generations without any attempt
at interference from any other country. The fur -seal
was a species most valuable to mankind and the Behring
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 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 defence for the vindication of
the right of the United States and the protection of
this valuable fishery from destruction." 14
Here we have set up :
1. The exclusive right of the United States to the
seal fisheries under the Russian title.
2. The right of ownership in the seals, in virtue of
the ownership of the Pribyloff Islands.
3. A self constituted undefined trusteeship from the
rest of " creation " to protect the seal " in the interests of
The answer of the British Minister was brief and to
the point:
I I replied (said Sir Julian Pauncefote), that as re-
" gards the question of right I could not admit that the
" seizure of the Canadian vessel was justified under the
I terms of the Act of Congress or the proclamation of the
" president. Municipal regulation could have no opera-
" tion against foreign vessels beyond territorial waters. ^
"=fc ^ As regarded the question of fact namely the,
" extermination of the fur seal species, and the necessity
" for a 1 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 time " is
" really necessary, and if an agreement should be arrived
" at on the subject, all questions of legal right would, ipso
" facto, disappear "
Mr. Blaine expressed his readiness that such an inquiry should be held—and conceded that sealers who in
good faith had suffered injury should be compensated.
Sir Julian Pauncefote reported the interview and
asked for the Marquis of Salisbury's instructions in regard
| to resuming in Washington the tripartite negotiation."
Shortly after the above interview the British Government complained of further seizures. To these complaints Mr. Blaine replied in a letter dated 22nd January,
In this letter he takes up fresh ground. The Canadian h
vessels seized in the Behring Sea were engaged in a
" pursuit that was in itself contra bonos mores "—a pursuit
" which of necessity involves a serious and permanent
*k injury to the people of the United States"—and this,
apart from arguing " the question of the extent and
"nature of the sovereignty of this (the American)
" Government over the waters of Behring Sea." He
refers to the title by descent from Russia—but says " it
44 may be safely left out of view while the grounds are
" set forth upon which this Government rests its justifica-
" tion for the action complained of by Her Majesty's
" Government."
Then Mr. Blaine proceeds to explain that the seal
fisheries were " exclusively controlled by the Govern-
| ment of Russia, without interference or without ques-
" tion from the original discovery till the cession of
" Alaska to the United States in 1867—and that the
" United States had remained in uninterrupted and " un-
44 disturbed possession " till 1886.
This looks like invoking the Russian title, in order to
make good a title to the fisheries by long, undisturbed and
uninterrupted possession—failing defects in the original
title deeds when tested by the standards of international
law. Then Mr. Blaine tells the story of how the wicked
pelagic sealers slaughtered the seal on the open sea—
thus interfering with the investment made by his Government in the Pribyloff Islands as part of the Alaska
purchase and concludes this part of his argument thus :
" The precedent, 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
poweiSthat owned a foot on the continents that bordered,
or on the islands included within the Behring Sea waters
where the seals resort to breed. Into this peaceful and
secluded field of labour "—* # # " certain —
Canadian vessels in 1886 asserted their right to enter"—
and to poach on Uncle Sam's Happy Hunting Ground.
Why should they not enter if Behring Sea were an
open sea ? This part of Mr. Blaine's argument looks
decidedly like a return to the mare clausum doctrine. But
then he reproaches Her Majesty's Government for defending the Canadian sealers in asserting their rights. Next
he sets up in express language a prescriptive title to the
fisheries in the Behring Sea, founded partly on long
and exclusive use by Russia and the United States, with
the acquiescence of Great Britain and other nations.
Mr. Blaine expresses great solicitude for a solution of
the differences between the two countries—regrets that
the proposals made by his predecessor were not accepted,
and announces that, 1 the President now awaits with
deep interest not unmixed with solicitude any proposal
for reasonable adjustment which Her Majesty's Government may submit."    Mr. Blaine sums up thus :
" The forcible resistance to which this Government
is constrained in the Behring 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 qver."
Mr. Blaine in addition to protecting what he assumed
and what, as the result shows he wrongly assumed to
be the rights of his own country, voluntarily constitutes
himself, or rather the President, the High Constable of
the rest of the world, in order that the rights of good
government " and good morals the world over " may
suffer no wrong. The farcical side of this pretension
is that the High Constable himself has been since adjudged to be the wrong doer.
— 17
It is not necessary here to detail the Marquis of Salisbury's replies to Mr. Blaine's despatches. The British
Foreign Secretary endeavored to discover in each case
the position last assumed—for the ground was shifting—
by the American Government and then proceeded in
calm but forcible reasoning to demolish it.
The claim of the United States Government to
abridge the rights of other nationals outside the three
mile limit was summarily and unanswerably disposed
of. The effect and extent of the Ukase of Paul the first, and
of the subsequent Ukase of 1821 were discussed in a
manner that left nothing to be added, in short Lord
Salisbury demonstrated that the Russian title upon which
so much stress was laid by Mr. Blaine amounted to nothing more than a transfer of the Russian Alaskan possessions with territorial rights over the waters for three miles
from the shore only—that there never had been any
acquiescence by Great Britain in any exclusive or exceptional right claimed by Russia in the Behririg Sea or the
seal fisheries therein ; that on the contrary the rights of
other nationals were recognized by Russia; that a forfeiture of the freedom of the seas could not be assumed,
even if there had been non-user : but that in this instance
Behring Sea had been an unquestioned avenue for trade
and navigation for British and other nationals throughout
the whole period of the Russian tenure and subsequently.
The American pretension that the Pacific Ocean
did not include the Behring Sea and that therefore
the treaty of 1824 between Russia and the United
States, and that of 1825 between Russia and Great
Britain did not apply to Behring Sea, in which
Russia had reserved to herself certain exclusive and recognized privileges—the Marquis of Salisbury was able PPPWi
I 18
to oppose—and did oppose and overturn with convincing force, citing the pretentions of the American Government itself at the time the controversy was at its height,
against their present claims.
He also showed that the Behring Sea was always
considered a part of the Pacific Ocean and consequently
the treaties of 1824 and 1825—limiting the Russians to
the ordinary 3 mile limit—were applicable to the Behring
Lord Salisbury also with complete conclusiveness
demonstrated that the ownership of the Pribyloff Islands, and the control ef the fishing thereon, or within
three miles of the sea surrounding it, gave the Americans
no ownership or right to protection of the seal outside
of the territorial waters, that " fur-seals were animals
ferae naturae, and were res nullius until caught; that no
person could have property in them until he had reduced
them into possession by capture, and that any interference by the United States with the hunting and taking
of these fur-seals, in the open waters of the ocean, was a
violation of rights secured to the subjects of Great Britain
by the law of nations.
The British Counsel before the Paris Tribunal happily
summarized the pith of the Marquis of Salisbury reasoned replies to Mr. Blaine's despatches in these words:
44 To all this shadowy claim the Government of the
" Queen submit but one answer—the Law. The whole
" case and every part of it, and every form in which in-
" genuity can frame it, are covered by this law. And to
" that law Her Majesty's Government must confidently
" appeal."
•an 19
| And there is another law to which that Government
" appeal with equal confidence—the law on which de-
44 pends the freedom of the sea."
" What is the freedom of the sea ?
"The right to come or go upon the high sea without
"let or hindrance, and to take therefrom at will and
| pleasure the products of the sea.
" It is the right which Great Britain and the United
States endeavoured, and endeavoured successfully, to
maintain against the claim of Russia 70 years ago. It is
the right in defence of which against excessive claims
of other nations, the arguments of the United States
have in former times held so prominent a place. And
what is this claim to protect the seal in the high sea ?
It is of right and for all time, to let and hinder the
vessels of all other nations in their pursuit of seals upon
the high seas ; to forbid them entrance into those vast
seas which the United States have included in the denomination of the I waters of Alaska," to take from
these vessels the seals they have lawfully obtained, and
to search, seize and condemn the vessels, and the crew,
or with show of force to send them back to the ports
from which they set out. And so according to the contentions of the United States, " protection of an industry " at sea justifies those acts of high authority
which by the law of nations are allowed only to
billigerents, or against pirates with whom no nation is
at peace. From giving its high sanction to these views
this tribunal may well shrink ; and it is with no mere
idle use of high sounding phrase that Great Britain once
more appears to vindicate the freedom of the seas."
This is the gist of Lord Salisbury's argument on the
questions of right and jurisdiction, and these are the
views that triumphed before the tribunal of arbitration
at Paris.
In respect to regulations, if on proper inquiry found
to be necessary, the British Foreign Secretary at all times
avowed the willingness of his Government to the fram- 20
ing of measures for the control of the sea fishing, provided
that such measures be equitable and framed with due
regard to the common interest, and not in order to promote the interest of any particular nation.
Lord Salisbury's reply to Mr. Blaine's despatch of
22nd January, 1890—-evidently made an impression on
the latter's mind, for in his letter of 17th December, 1890,
we find Mr. Blaine expressly renouncing to the mare
clausum doctrine. " The Government of the United States
never claimed it and never desired it. It expressly disavows it," says Mr. Blaine.
It is not surprising that Sir Julian Pauncefote found it
difficult to determine with exactitude just what position
the United States assumed. But now that Mr. Blaine
had so expressly excommunicated the mare clausum doctrine, we might expect to have heard the last of it. After
disavowing it Mr. Blaine proceeds:
" At the same time the United States does not lack
44 abundant authority, according to the ablest exponents
u of international law for holding a small section of
44 Behring Sea for the protection of the seals."
This is quite a discount on the claim made in his
preceding despatch of 22nd January, 1890.
He continues :
44 Controlling  a   comparatively   restricted    area   of
water for that one specific purpose is by no means the
equivalent of declaring the sea,  or  any parts  thereof,
mare clausum "
This is indeed " taking backwater "—though Lord
Salisbury's argument did not leave him the solace of an
inch in the sea outside of the three mile limit.
Mr. Blaine complains bitterly that even his own
countrymen have to some extent turned pelagic sealers, 21
and worse still have sought the shelter of the British
flag under whose protection they were plying their nefarious games on the high seas. In this connection
it is interesting to see what opinion renegade and
lawless American sealers, when captured, entertained of
Mr. Blaine's policy of interference with the freedom of
the seas.
Here is their protest :
" They wish to explore the waters of Behring Sea and
the Arctic Ocean. They believe they, as American citizens,
have a right to fish or hunt in the American waters of
the Behring Sea outside of three nautical miles, from
any island or the mainland of Alaska. They believe
that William H. Seward did not purchase Alaska for the
Alaska Company, but for the whole nation. They demand as a right that they be permitted to pursue their
honorable business in the American waters of the North
Pacific, Behring's Sea and the Arctic Ocean, without
being treated as criminals, and hunted down and seized
and imprisoned by the piratical Revenue Cutters of the
United "States at the dictation, and for the sole benefit
of the Alaska Commercial Company."
The Alaska Commercial Company had acquired the
right to take seals on the Pribyloff Islands under contract from the American Government, and this company
was supposed by Canadian and American sealers alike
to be under Mr. Blaine's special protection. There was
probably nothing to justify this supposition, and whether
there was or not, it has nothing to do with the discussion
of the question under consideration. i
Mr. Blaine in this dispatch, 17th Dec. 1890 in addition
to burying the mare clausum doctrine, made this important
statement and proposal—of " an effective mode of preserving the seal fisheries for the use of the civilized
world." I *    |        | If
" 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 May to 15th
October of each year. This will prove an effective mode of
preserving the seal fisheries for the use of the civilized world,
a mode which in view of Great Britain's assumption of
power over the open sea, she cannot with consistency ^
decline. Great Britain prescribed 8 leagues at St. Helena ;
but the obvious necessities in the Behring Sea, will, on
the basis of this precedent, justify 20 leagues for the protection of the American seal fisheries. The American
Government desires only such control over a limited extent of the waters in the Behring Sea, for a part of each year
as will be sufficient to insure a portion of the fur fisheries
already injured possibly to an irreparable extent, by the
intrusion of Canadian vessels" and no doubt also of
American vessels flying the Union Jack.
This proposal should be carefully compared with
that made by Mr. Bayard, and with the proposals submitted to the arbitrators by the two governments and
with the regulations settled by the Tribunal.
With the consent and approval of the great powers. Tl
In the light of later events Mr. Blaine's proposal was
modestly personified and had it been accompanied with
an offer of compensation to the injured sealers, and the
right of participation in regulating the killing of seals
on land as an equivalent for abstention from hovering
within the 60 mile limit, it might have been accepted
with advantage.
In Mr. Blaine's letter of 17th December, 1890, he
quotes a passage from the letter of Mr. Phelps, of 12th
September, 1888, in which Mr. Phelps says: " 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. # =& ^
It is suggested that we are prevented from defending
ourselves against such depredations, because the sea at a
certain distance from the shore is free. * m * If
precedents are wanting- for a defence so necessary and
proper it is because precedents for such a course of
conduct are alike 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."
Still later Mr. Blaine in a letter dated 14th June,
1891, addressed to Sir Julian Pauncefote, summarizes
the American contention thus : 4k It (the American Government) holds that the ownership of the island 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 island in search of food and
regularly   returning   thereto,   and   all   the   facts   and
—^-^—--—--—-—^—-—^-^-^^^^^s Iff- 24 ■■•"■"!
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 recognizing 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 and subsequent years has changed the
law and equity of the case theretofore prevailing."
The pretensions of the United States in the diplomatic
controversy have been given with much more particular^
ity and detail that those of Great Britain and this has
become necessary in order to show what these varying
contentions were from time to time. So much particularity is unnecessary in defining the British position. It
was the same throughout. Lord Salisbury took his stand
along the well recognized lines of international law. He
defined his position at the outset—and never changed it.
The American position was not fixed—the case was
novel and the American Secretaries were attempting to
rest it on new lines, when dislodged from old ones.
Their ground was constantly shifting It is safe to say
that they made their best fight over the alleged right of
property in the seals, and though they did not succeed
their arguments were not lacking in ingenuity and
originality.     They  were,  too, evidently  pressed with
* 25
sincerity—and  not   without   a   certain   semblance   of
authority held however to be inapplicable.
Concurrently with the discussion on matters of right
and jurisdiction and of property, came up the question of
referring the matter in dispute to arbitration. In settling
the reference the British Foreign Secretary did not display
the same firmness, and the same unfailing judgment that
he did in discussing the questions of right and jurisdiction.
Mr. Blaine was allowed to take the lead in stating
what matters should be referred. It is a matter of common
knowledge that in a dispute between two private individuals, he whose counsel draws the deed of arrangement
has the advantage. He impresses his own ideas upon
the instrument. The task of criticism is easier than that
of creation but then in such a case as this duty does
not end with criticism. And when the object is to arrive
at a common agreement the critic as a rule gets the
wTorst of it.
It is no reflection on the national character to say
that the individual American is a good bargainer and
likes to get the best of a bargain. The American diplomat is as a rule a cross between a shrewd lawyer and a
good bargainer—often a combination of both.
Mr. Blaine in his letter Dec. 17th, 1890, to Sir Julian
Pauncefote, said:
| It will mean something tangible, in the President's
opinion, if Great Britain will consent to arbitrate the
■H 26
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 Behring 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 ?
44 Third.    Was the body of water now known as the
Behring Sea included in the phrase 'Pacific Ocean' as
used in the treaty of 1825 between Great Britain and
Russia ; and what rights, if any, in the Behring Sea
were given or conceded to Great Britain by the said
treaty |
44 Fourth. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring Sea east
of the water boundary, in the treaty between the United
States and Russia of March 30, 1867, pass unimpaired to
the United States under that treaty ?
44 Fifth. What are now the rights of the United
States as to the fur-seal fisheries in the waters of the
Behring 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 Behring 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 27 I
those seal fisheries to the territorial possessions of the
United States ?
I 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 Behring 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 order to
protect the seal for the time living upon the islands of
the United States-land feeding therefrom. Second,
whether a closed season (during which the killing of
seals in the waters of Behring 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 seasons and over what waters it should extend.'
The Marquis of Salisbury assented to the first, second
and fourth questions, made some criticism on the third
and fifth, which were subsequently amended in conformity with his views. The five points in Article 6, of
the Treaty, were finally settled as follows :
Art, VI. In deciding the matters submitted to the
arbitrators, it is agreed that the following five points
shall be submitted to them, in order that their award 28
shall embrace a distinct decision upon each of said five
points, to wit:
1. What exclusive jurisdiction in the sea now known
as the Behring Sea, and what exclusive rights in the seal
fisheries therein, did 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 ?
3. Was the body of water now known as the
Behring Sea included in the phrase " Pacific Ocean," as
used in the treaty of 1825 between Great Britain and
Russia ; and what rights, if any, in the Behring Sea were
held and exclusively exercised by Russia after said treaty?
4. Did all the rights of Russia as to jurisdiction, and
as to the seal fisheries in Behring Sea east of the water
boundary, in the treaty between the United States and
Russia of the 30th March, 1867, pass unimpaired to the
United States under that treaty ?
5. Has the United States any right, and if so, what
right of protection or property in the fur seals frequenting the islands of the United States in Behring Sea, when
such seals are found outside the ordinary 3 mile limit ?
It will be seen at a glance that underlying these five
points are but two main questions.
1st. What was the extent and effect of the Russian
title in Behring Sea,and the seal fisheries therein, and
2nd. Has the United States any right of protection
or property in the fur seal frequenting the Islands in the
sea when found outside the ordinary three mile limit. 29
Article 6, of the treaty involved the determination of
all the questions of right and jurisdiction. If the answers
on these five points were in favour of the United States,
that is to say, if it were found that under the Russian
title, the United States had acquired an exclusive jurisdiction in the Behring Sea, and exclusive rights in the
seal fisheries; or if it were found, apart from the Russian
title that the United States owned the seals that resorted
to the breeding Islands, even when found outside the
three mile limit, the controversy would be at an end,
for the effect of such a decision would be to constitute
Behring Sea an American Lake, and each individual seal
in it American property whether found in the sea itself
or anywhere in the wide expanse of the Pacific. The seal
in such a case, would be judicially branded U. S., and the
United States would exclusively have the right to make
regulations in respect to it.
In that event the concurrence of Great Britain or of any
other nation would not be necessary, as the United
States would certainly have the right to preserve and
protect its own property.
A decision against the United States on these points
would mean that outside of territoral waters, thev had
no more rights in Behring Sea and no more property in
the seal than any other nation on the globe, and incidentally it would follow that all the seizures made of Canadian sealers plying their trade outside of territorial water,
were illegal, and that damages must be paid for losses
sustained. Now as that was the original bone of contention, and the protection and preservation of the seals was
only introduced as a mere graft upon that question, one
would have thought that before considering any other — —=r^
question the matters of right and jurisdiction should be
first settled.
These settled, then the making of regulations for the
preservation of seal life might properly form the subject
of a separate reference.
This was the view of Lord Salisbury who, on the 21st
February, 1891, in reply to Mr. Blaine, comments on the
6th question :
44 The sixth question, which deals with the issues
which will arise in case the controversy shall be decided
in favour 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 far the enactment of such a provision is necessary
for the protection of the seal species ; but any such reference ought not to contain words appearing to attribute
special and abnormal rights in the matter to the United
This criticism must be considered in connection with
the 6th question (ante.)
The sixth question has reference to regulating the
killing of seals " in the. waters of Behring Sea ' whether
the United States should exercise an " exclusive jurisdiction in order to protect the seal for the time living
upon the islands of the United States and feeding therefrom "—as well as provisions for a close time.
. Y
The Marquis of Salisbury tooh oauoption to giving
^^^^^the United States any exceptional jurisdiction in policeing
the seas, but makes no protest against the killing on
land being excluded from regulation. It may be that
he had no right to say to the Americans that they should
submit their islands and territorial waters to regulation
/ 31
by the arbitrators. But as this question was to be submitted in case the controversy on the questions of right
and jurisdiction should be decided in favour of Great
Britain, surely Great Britain should not be asked to curtail the rights it was decided she was entitled to exercise, without some concession from the Americans. Is
this the penalty we have to pay for making a bargain
with the Americans ? If Great Britain won on the great
points in controversy, then she is to surrender so much
of her winnings, ostensibly for the benefit of the seal
species, but really for the benefit of the owners and lessees
of the Pribyloff Islands. If the United States won on
the five points then the Behring Sea would be closed to
Great Britain and to all the world for sealing. Every
seal that swam, coming from the Pribyloff Islands, became American property. The calling of pelagic sealing
would be at an end and every dollar invested in it lost.
But if the United States lost then a device was created
in the 6th question by which she was to get by regulation what she could not by law, without giving up
one tittle of her rights on sea or land. This clause in
the treaty, as finally settled, will probably forever survive
as the most perfect example of " heads I win, and tails
you lose."
It is a complete reversal of the Jacksonian doctrine
which should now read:
" To the vanquished belong the spoils."
Mr. Blaine, replying to Lord Salisbury on 14th April,
1891, remarked that he did not understand that Lord
Salisbury objected to the 6th question, though he under- . 32
stood him to propose a different mode of procedure. Mr.
Blaine blandly attempts to raise a side issue of little
importance and to keep the dynamite out of sight. He
reformed the third and fifth questions so that the first
five questions would read as they now do in article 6 of
the treaty and again submitted the 6th question in its
original form.
Sir Julian Pauncefote on 3rd June, 1891, notified
the American Government that Her Majesty's Government would assent to the first 5 questions as amended
(art. 6 treaty) but that:
"Her Majesty's Government cannot 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, and a chairman who shall be nominated by the arbitrators. The commission shall examine
and report upon the question which follows: " For the
purpose of preserving the fur-seal race in Behring Sea, from extermination, what international arrangements, if any, are necessary between Great Britain, the United States and Russia, or
any other po wers.''
There can be no doubt that Lord Salisbury's suggestion as to procedure was the proper one, that the question
of right and jurisdiction should be first settled, and if
Great Britain won then there should be a separate reference in respect of regulations.
The further suggestion of Sir Julian Pauncefote was
the complement of the first, and surely should have been
adhered to. It avoided completely the dynamite in Mr.
Blaine's  6th question.     It provided  a  commission   for 33
investigating    what   international   arrangements   were
necessary for preserving " the fur-seal race in Behring ■
from   " extermination "—not  to  prescribe   " regulations
for killing of the fur-seal in any part of the waters of
Behring Sea."
Had such a commission been appointed it would
have been able to make a thorough report on the conditions of seal life and what arrangement should be made
between the three powers in order to preserve it from
extermination. Its scope would have extended to arrangement, relating to seals on land and within territorial waters
as well as to seals in the high seas. With such a report,
and the power to deal with it, the tribunal of arbitration
might have made regulations relating to the land as
well as to the sea, and not have left its work as it is today, confessedly incomplete and insufficient.
But the American Government with all its professed
anxiety for " the preservation and protection of the seal "
refused the suggestion of the British Government. The
modus vivendi then under discussion embarassed both
Governments. The Americans pressed for the acceptance
of the sixth question and offered to incorporate with it a
provision for a commission, and to agree to co-operate
with Great Britain in securing the adhesion of other
powers to the regulations to be made.
The result was the abandonment of the British proposal and the substitution of question 6, in a slightly
modified form—with provision for a commission.
From this moment the case in so far as regulations
were concerned was " given away." 34
The modified 6th  question became Article 7 of the
Treaty, and Article 9 is complementary to it.
Article VII.
"If the determination of the foregoing questions
as to the exclusive jurisdiction of the United States
shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the
Behring Sea, the Arbitrators shall then determine what
concurrent 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."
Article 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 VII, 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 maybe 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
«giOt!M 35
to investigate conjointly with the commissioners of the
other Government all the facts having relation to seal
life in Behring Sea, and the measures necsssary for its
proper protection and preservation.
The four commissioners shall, so far as they may be
able to agree, make a joint report to each of the two
Governments, and they shall also report, either jointly
or severally, to each Government on any points 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 arbitrators cannot arise.
Article VII. M.
Article 7 not only retains the objectionable features of
the 6th question in limiting regulations to 1 waters,'
but in not limiting these " waters," as the 6th question
did to the waters of " Behring Sea*" Here the door was
opened to making regulations extend over the whole
Pacific Ocean. It will be seen how liberally the tribunal
availed itself of this power.
The commission instead of being a highly trained and
efficient scouting party for the tribunal itself, to ascertain
for it from actual investigation what " international arrangements " were " necessary for the purpose of preserving the fur seal-race in Behring Sea," became minimized
into each government appointing two commissioners,
the four to make a joint report to each of the two governments " so far as they may be able to agree." Each
government's commissioners made long reports to their
own government. One side of one sheet of note paper
would suffice for the joint report.    They agreed that the
J 1
seal race was diminishing " from excessive killing by
The reports to the respective governments were in
many respects excellent, and speaking more especially
for the report of the British commissioners with which
the writer is more familiar, a well considered and essentially fair report. But the misfortune was that much of
what was useful and germain to the subject, the preservation of the seal life on the islands and in the territorial
waters of the United States, was excluded from the issue
by the terms of article 7 of the treaty which restricted the
tribunal to making regulations for the preservation of
the seal " outside of territorial jurisdictions of either
From the moment the British Ambassador set his
hand to the treaty of the 29 February, 1892, the fate of
the case of the British Government wras sealed. For if
they lost on the five points involving questions of right
and jurisdiction they were irretrievably routed ; and if
they won they were immediately bound to submit to the
tribunal what part of their gains they should surrender by
regulation, that they were not bound to concede by right,
and that too without any concession from the American
Government and without one compensating advantage,
except the advantage that comes from the temporary
settlement of a dispute as to jurisdiction and any advantage that may accrue to Canadian claimants for losses on
account of the illegal seizing of their vessels and the imprisonment of their crews- I     ■ / ^    37 f.
THE treaty.
Having already set out articles 6, 7 and 9 of the
Treaty, it will only be necessary now to refer to the
preamble, and the first and fourteenth articles. These
are so important that it will be best to set out such portions of them as are relevant in the exact language of the
The preamble recites that the United States and Her
Majesty desiring " to provide for an amicable settlement
of the questions that have arisen between their respective Governments concerning the jurisdictional rights of
the United States in the waters of Behring Sea, and
concerning also the preservation of the fur-seal in, or
habitually resorting to, the said sea. and the rights of
the citizens or subjects of either country, as regards the
taking the fur-seal in or habitually resorting to the said
waters, have resolved to submit to arbitration the question involved."
The first article of the treaty provides that: These
questions " shall be submitted to a tribunal of arbitration, to be composed of seven arbitrators # ^ # who
shall be jurists of distinguished reputation," of whom
two shall be named by the President of the United
States, two by Her Britannic Majesty, one by the President of the French Republic, one by the King of Italy,
and one by the King of Sweden and Norway.
The fourteenth article of the treaty is as follows:
" The High Contracting Parties engage to consider the
" result of the proceedings of the tribunal of arbitration,
" as a full, perfect and final settlement of all the questions
I referred to the arbitrators."
The  tribunal of arbitration being duly constituted
i 38
and having disposed of some preliminary matters proceeded to hear arguments on the 5 points submitted in
Article 6, of the Treaty, and subsequently to hear the
arguments of counsel with respect to regulations.
These arguments fill several books. It would be
quite out of place to refer to them at length in an article
of this character. Besides, except for the student who
wishes to increase his store of knowledge, it would serve
no useful purpose to give more than the merest outline
of what the arguments were. It is with the result, the
decision, that the world is now, and will be, most concerned.
The first point submitted in Article 6 is :
1. What exclusive jurisdiction in the sea now known as
Behring Sea, and what exclusive rights in the seal fisheries
did Russia therein assert and exercise prior and up to the time
of the cession of Alaska to the United States ?
This point may conveniently be considered with the
second and third points of Article 6.
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 known as the Behring Sea, included in the phrase " Pacific Ocean as used in the treaty of
1825, between Great Britain and Russia ; and what rights, if
arfu, in the Behring Sea, were held and exclusively exercised
by Russia after said treaty ?,
The matters embraced in the three first questions involve the validity and extent of the Russian Title
acquired by the treaty of cession of 1867.
Russia   claimed   the   North-West  of   America and
■ ■a^-'.'.-^ ..iw. *i. ~--t-—;- 'iL.'i.A.L.2'    .£J   "U.n '■* ■ X^V^.'t^X . ..% ' 39
the islands in the Behring Sea by the right of
first discovery. The United States urged that Russia
had asserted and exercised exclusive jurisdiction in
Behring Sea from a very early period and that this
was witnessed by the Russian Ukase of 1799. This Ukase
is simply a charter which " Paul the 1st, by the Grace of
God, Emperor and Autocrat to all the Russias " granted
to the Russian American Company # =# #
I to enjoy the profits of all industries and establishments
I now existing on the north east (sic.) coast of America/'
(His Majesty tripped in his geography,) " from the
aforesaid 55 ° to Behring strait, and beyond the strait, as
well as on the Aleutian and Kurile Islands and the other
islands situated in the North Eastern Ocean."
No dominion over the ocean, is granted or could
be granted. The concession is entirely territorial, and
limited to the coast and the islands specified. There is
no pretence that the sea is closed. There is no reference
to seal fisheries. Moreover it is a purely domestic charter
giving certain privileges to certain of the Tzar's own
subjects, as against the rest of them, but not against other
The Ukase was never notified to foreign powers.
The Ukase of Alexander 1st in 1821 was more far reaching, but still fell far short of the mare clausum doctrine.
The Ukase is in the following language:
1 The pursuits of commerce, whaling and fishery, and
of all other industry on all islands, ports and gulfs, including the whole of the northwest coast of America,
beginning from Behring Straits to the 51° of northern
latitude, also from the Aleutian Islands to the eastern
coast of Siberia, as well as along the Kurile Islands from
Behring's Straits to the South Cape of the Island of Urup, 40
viz, to the 45 ° 50   northern    latitude, is    exclusively
granted to Russian subjects."
The Ukase also prohibited all but Russian vessels
from landing on the coasts or islands described or even
approaching them within less than 100 Italian miles.
This Ukase was notified to foreign nations and was
regarded as a clear invasion of the freedom of the seas.
Great Britain and the United States protested against it.
The Russian Government attempted to explain that it
was necessary to protect Russian commerce. The explanation was not heeded.
Mr. Adams, the American Secretary of State, on 22nd
July, 1823, addressed to the Russian Government the
following vigorous protest:
| The pretensions of the Imperial Government extend
to an exclusive territorial jurisdiction from the 45th degree of north latitude, on the Asiatic Coast, to the latitude of 51 ° 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 that coast. The
United States can admit no part of these claims The right
of navigating and of fishing is perfect, and has been in
constant exercise from the earliest times, after the Peace
of 1783, throughout the whole of the Southern Ocean, subject only to the ordinary exceptions and exclusions of
the territorial jurisdictions, which, as far as Russian
rights are concerned, are confined to certain islands,
north of the 55th degree of latitude, and have no existence on the continent of America."
Then again, Mr. Middleton, the American Minister to
Russia commenting on the Ukase in his letter of the 13th
Dec, 1823, says: 41
1 The Ukase even goes to the shutting up of a strait
which has never been till now shut up, and which is at
present the principal object of discoveries interesting
and useful to the sciences. The extension of territorial
rights to the distance of 100 miles from the coasts 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 in the law
of nations and measures unexampled."
Nothing could be more explicit than the ground taken
up by the American Government at this time against the
claims of Russia.    The British Government also took ud
a firm and decided position, and during the Congress at
Verona, in 1822, the Puke of Wellington formally put
himself on record in a note addressed to Count Lieven in
regard to a memorandum received by the Duke from
Count Nesselrode a short time before.
The Duke's letter is an important document and is in
the following language:
Verona, November 28, 1822.
M. le Comte: Having considered the paper which
your Excellency gave me last night on the part of His
Excellency Count Nesselrode on the subject of our discussions on the Russian Ukase, I must inform you that
I cannot consent, on the part of my Government, to
found on that paper the negotiations for the settlement
of the question which has arisen between the two Governments on this subject.
We object to the Ukase on the grounds :
1. That His Imperial Majesty assumes thereby an exclusive sovereignty in North America of which we are
not prepared to acknowledge the existence or the extent.
Upon this point, however, the memorandum of Count
*M 42
Nesselrode does afford the means of negotiation, and my
government will be ready to discuss it either in London
or St. Petersburgh whenever the state of the discussions
on the other question arising out of the Ukase will allow
of the discussion.
2. 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, &c, by
its own act or engagement, but it cannot by right be
excluded by another. This w^e consider as the law of
nations, and we cannot negotiate upon a paper in which
a right is asserted inconsistent with its principle.
I think, therefore, that the best mode of proceeding
would be that you should state your readiness to negotiate upon the whole subject, without restating the
objectionable principle of the Ukase, which we cannot
Ever yours, &c.
(Signed)       WELLINGTON.
Behring Straits being only fifty miles wide
the effect of the Ukase of 1821 would be to close
the entrance to them, and to the Pacific from the North.
Both Mr. Adams and Mr. Canning made this point in m
| •       43 \: ,
reply to a memorandum from Count Lieven in reference to
Russian subjects living on the Arctic Coast, outside the
Behring Straits.   Mr. Canning wrote on 21st July, 1824 :
" The person who could think of making the Pacific
' a mare clausum may not unnaturally be supposed capable
4 of a disposition to apply the same character to a strait
4 comprehended between two shores of which it becomes
* the undisputed owner ; but the shutting up of Behring
1 Straits or the power to shut them up hereafter would be a
1 thing not to be tolerated by England, nor could we submit
j to be excluded either positively or constructively from
4 a sea in which the skill and science of our seamen have
been (and are still) employed in enterprizes interesting
4 not to this country alone but to the whole civilized
1 world."
The result of these protests was that Russia abandoned
the whole of the extreme pretentions of the Ukase along
the whole of the said territories to which it was made
applicable, and has never since in this regard asserted or
exercised any rights not recognized by the law of nations.
After the abandonment, a treaty was signed between
Russia and the United States in 1824, and one between
Russia and Great Britain in 1825. §||
It was contended in the diplomatic correspondence
and in the American case and argument that, although
Russia in the treaty with Great Britain in 1825 withdrew
the extreme pretensions of the Ukase of 1821 in so far as
the " Pacific Ocean " is concerned, the withdrawal did
not apply to the Behring Sea, which being known and
designated by a specific name, could not be assumed
to fall within the designation of " Pacific Ocean." The
argument therefore was that the Ukase remained in full
force and effect in so far as Behring Sea and the seal
fisheries  in   it   were  concerned,  notwithstanding   the
9 mm
44 '    -
treaty of 1825, at the time Alaska and the islands in
Behring Sea were transferred to the United States by
the cession of 1867.
This called for a construction of the treaty of 1825,
and considerable geographical investigation as to whether
Behring Sea was really a part of the Pacific Ocean. The
weight of evidence was overwhelmingly, that Behring
Sea was and had always been regarded as part of the
Pacific Ocean; while an examination of the treaty of 1825
shows that in its first article :
" It is agreed that in any part of the j Great Ocean
commonly called the " Pacific Ocean," the respective
subjects of the High Contracting Powers shall be neither
disturbed or restrained either in navigation or fishing."
I The north west coasts of America " referred to in the
Ukase as extending to Behring Strait are also referred to
in the treaty without qualification or restriction, which
would Tiave been made if the treaty were to have only a
limited operation.
In addition to this the Russian government were
called upon to construe the treaty of 1824 with the
United States, the first clause of which is couched in
almost precisely identical language as the first clause in
the treaty with Great Britain, when the Russian Ameri-
can Company protested against American Sand other
foreign whalers in Behring Sea. The Russian Government on this protest decided that the treaty of 1824 gave
the citizens of the United States the right of fishing and
navigation " over the whole extent of the Pacific Ocean."
As a matter of fact it was shown that from the earliest
times British vessels had enjoyed all the rights of the
high seas in Behring Sea,, and that on the only occasion
when Russia attempted to usurp the freedom of the sea 45 1
and to restrict fishing and navigation upon its waters.
Great Britain promptly resisted until not only the
abandonment of the obnoxious Ukase was obtained, but
a formal convention putting that abandonment beyond
question was signed. Russia, therefore, neither asserted nor exercised exclusive jurisdiction in Behring Sea
or exclusive rights in the seal fisheries therein, at or
prior to, the time of the cession of Alaska to the United
States, and Great Britain never recognized any jurisdiction or rights other than such as appertained to Russia
by the law of nations. And so the tribunal of arbitration
The arbitrators unanimously decided that the phrase
Pacific Ocean in the treaty between Great Britain and
Russia, included the Behring Sea; and decided by a
majority, Senator Morgan dissenting, that after the treaty
of 1825 Russia exercised no exclusive right or jurisdiction
in Behring Sea, and no exclusive right as to the seal
fishery therein, outside of territorial waters.
The Russian title can hardly be disposed of without
a brief reference to the terms of the cession which are
contained in the
This treaty was negotiated for the United States by
Mr. Seward.
By the first article of the treaty :
| Sa Majeste l'Empereur de Toutes les Russies, s'en-
gage * # # a ceder aux Etats-Units # # # tout le ter-
ritoire avec droit de Souverainete possede par Sa Majeste
sur le continent d'Amerique, ainsi que les iles conti-
gues." i
f.   " 46 I
(Then follows a description about which there is no
By the sixth article of the treaty :
The | cession du territoire avec droit de souverainete "
is declared to be " libre " and with all appurtenant privileges and rights.
The Americans translated the words, " avec droit de
souverainete " as " dominion," whereas they unquestionably mean " the right of sovereignty" and not " dominion."
What the Emperor did was to transfer the " territory"
and the " islands " and such rights as belonged to him,
as for instance, right in territorial waters, with " the
right of sovereignty," or the right which he possessed
as ruler or sovereign over these territories. It is another
form of relieving his subjects from their allegiance and
putting them under the jurisdiction of another power,
but it does not add anything to the territorial extent of
the thing transferred.
He did not transfer, or profess to transfer Behring Sea
or " the waters of Alaska " or anything except territory,
and such territorial rights as were incident to it
by the law of nations, and the power of government
over his people inhabiting these territories and islands ;
and it might also be any right or royalty that appertained
to him as Tzar, in the soil, or in the mines. But no exceptional right of this kind is claimed. There is no reference to any royal or national right in fishing on the
seas washing the coasts of the transferred territory.
The arbitrators were therefore able to answer unanimously in the affirmative to the fourth of the five points
of art. 6, namely :
4.    Did all the rights of Russia as to jurisdiction and 47
as to seal fisheries in the Behring Sea east of the water
boundary, in the treaty between the United States and
Russia of 30th March, 1867 pass unimpaired to the
United States under the treaty ?
The American case however did not alone rest on the
determination of the exclusive jurisdiction in Behring
Sea, and exclusive rights in the seal fisheries therein,
being the questions involved in the first three points.
After having dealt with them, it contains this further
proposition that the United States "is not compelled,
neither does it intend to rest its case altogether on the
jurisdiction exercised over Behring Sea established or
exercised by Russia prior and up to the time of the cession of Alaska."
Mr. Blaine had said the same thing and this brings
us to the 5th point of article 6th of the treaty, viz:
5. Has the United States any right, and if so what right
of protection or property, in the fur-seals frequenting the
islands of the United States in Behring Sea, when such seals
are found outside the ordinary three mile limit ?
The United States based the right here claimed " upon
" the established principles of the common and civil law,
| upon the practice of nations, upon the laws of natural
I history, and upon the common interest of mankind."
The British case met this proposition with the answer
that there could be no right of protection where there
was no jurisdiction ; that there could be no right of property in the seals which were animals ferae naturae, and as
such were res nullius until taken.    The law as laid down
—— 48
by Kent, even, was against the American contention.
The " common interests of mankind" in question could
only be such as international law recognizes.
The American contention for aright of property in seals
received no countenance from either the common or civil
law. The common law of Great Britain and the United
States in regard to wild animals was the same. It recognized no property in animals ferae naturae until possession, and property only lasts so long as possession lasts ;
when possession is lost, the property is lost. They are
then wild animals at large and "the right of capture
reverts to all alike."
" The law does not give to the owners of land the
qualified property as to wild animals on their land by
reason of any care or feeding of the wild animals, or
management, w7hich falls short of reducing them into
possession ; it is vested solely on the fact of the ownership of the land, and the fact that any other person
coming on the land to take the animals is a trespasser."
The American Counsel pressed the argument that the
seals returned annually to the breeding islands, where a
certain control was exercised over them by the United
States Government or their lessees, and that when they
left the breeding ground it was animo revertendi. as
evidenced by the fact that they did return the following
year. Counsel assimilated the government's ownership
in them to that of the owner of bees or doves, which fly
away from their owmer's land, but habitually return
again to their hives or cots. The arbitrators could not
find an analogy and refused to countenance the argument.
The life of the seal is indeed sui generis.
That the American contention with regard to ferae
^ \
naturae is not without colour of authority is obvious from
the following observations of Blackstone ;
" These are no longer the property of a man than
while they continue in his keeping or actual possession ;
but if at any time they regain their natural liberty, his
property instantly ceases, unless they have animum revertendi, which is only to be known by their usual custom
of returning. The law, therefore, extends this possession
further than the mere manual occupation ; for my tame
hawk, that is pursuing his quarry in my presence, though
he is at liberty to go where he pleases, is nevertheless my
property, for he hath animum revertendi. So are my
pigeons that are flying at a distance from their home, all
which remain still in my possession, and I still preserve
my qualified property in them. But if they stray without my knowledge, and do not return in the usual
manner, it is then lawful for any stranger to take them."
But it could hardly be said that there was any control
or reduction into possession of seals on the islands except
in so far as the portion of them that was driven apart to
be put to death and skinned. There was no interference
with, or control over, or reduction into possession of, the
balance of the herd. The seal outside the three mile
limit was the property of the first taker. There was
nothing illegal in pelagic sealing. The sea sealer was
simply the business rival of the land sealer, objectionable
to the latter because he diminished his catch. The
rights of the United States wTere not violated by other
nationals exercising their lawful rights on the high
seas. n
50 . |
The majority of arbitrators, Mr. Justice Harlan and
Senator Morgan, dissenting, found that the United States
had not any right of protection or property in the fur
seals frequenting the islands of the United States in the
Behring Sea, when such seals are found outside the
ordinary three mile limit.
The United States Government and counsel made
their main fight over the right of property in the seals,
now designating it a right in the seals, now in the seal
herd, and finally in the seal industry.
Notwithstanding that the American Government upheld the original seizures of Canadian sealers, on the
ground that the statute of congress, the president's proclamation, and the judgment of the Alaskan Court justified
them, notwithstanding that Mr. Blaine in the diplomatic
correspondence placed much stress on the Russian title
to exclusive right in the Behring Sea and in the seal
fishing there, notwithstanding that the treaty puts forward these questions for specific determination, and that
they are seriously argued in the American case, it will
be found from the opening words in the American counter case that these considerations are practically abandoned or so completely superseded as to be practically
These are the opening words of the American counter
" It appears from an examination of the British case
and the diplomatic correspondence above referred to
that a different opinion is entertained by the two governments as to the object and scope of the present arbitra- 51
tion. That case is almost exclusively devoted to showing
that the government of the United States is not entitled
to exercise territorial jurisdiction over the waters of
Behring Sea, or to exclude therefrom the vessels of other
nations. On the other hand the case of the United
States makes it plain that the main object had in view
by the latter government is the protection and preservation of the seal herd which has its home on the Pribyloff
While the American position was constantly changing, it must be remarked that the position of Great
Britain set forth in the diplomatic correspondence in
the British case and counter case, and elaborated in the
argument of counsel was uniform and consistent, throughout.
Speaking of this Blackwood remarks : " We may say
that the British case, presumably prepared in great part,
if not altogether, under the control of or in person by the
members of the Canadian Ministry engaged in this affair,
Le., the Premier Sir John Thompson and the Minister of
Marine, the Honourable Charles Hibbert Tupper, is prepared in a manner calculated to excite a feeling of satisfaction that the public service of the colonies and the
empire can still command the use of very extraordinary
ability for very insignificant rewards."
The same magazine speaking of that part of the British
counter case which deals with right of property in, and
protection over, the seal, says that it "was prepared with
singular ability." ■52 f
All the questions of right and jurisdiction having
been decided in favor of Great Britain and against the
United States, or otherwise stated, it having been decided
that all nations had equal rights on the high seas, (inclusive of Behring Sea) it then became necessary for the
arbitrators to consider the framing of concurrent regulations under article 7 of the treaty.
That article is as follows :
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 fur-seal in, or habitually resorting to, the Behring
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
co-operate in securing the adhesion of other powers to
such regulations.
This article, as already indicated, contemplates the
framing of regulations limiting the rights of Great
Britain, (for the United States has no interest in sea seal- |.    - 53
ing), provided Great Britain should win her case befoie
the Tribunal of Arbitration.
The British counsel vainly argued that the tribunal
should make regulations affecting the land as well as
the sea catch.
Her Majesty's government in the printed argument
submitted :
| The object of the regulations is the proper protection
and preservation of the fur-seal in, or habitually resorting
to Behring Sea. It would be unjust that other nations
should be asked to enforce by legislation this curtailment
of the rights of their nationals, without some corresponding concession on the part of the United States, as owners
of the islands and the territorial waters thereof."
Quite so ; nothing could be more unjust, but this point
should have been urged and pressed in the negotiations
preceding the convention, and surely no convention
should have been entered into that did not involve
mutual concessions. Unfortunately the treaty does not
provide for any concession from the Americans, in so far
as the islands and territorial waters are concerned. The
concurrent regulations are only to apply outside the jurisdictional limits. This is the bane of the treaty. Great
Britain was doomed to suffer a sacrifice after winning all
the jurisdictional points in dispute.
" The regulations for the islands," "urged the Govern-
I ment of Her Majesty," " which the United States may
" be willing to make, must, it is submitted, have an
44 important effect upon the judgment of the arbitrators,
44 as to what pelagic regulations would be reasonable or
§ necessary, and it is further submitted that it is within
44 the competence of this tribunal to make the latter re-
" gulations contingent or dependent upon the former. To
1 apply restrictions to pelagic sealing, without effective 54
" and concurrent regulations being enforced on the breed-
" ing haunts, would be as unreasonable and useless as
| the institution of restrictions over a coastal or estuary
" salmon fishery, while the salmon on the spreading beds
44 of the river were being taken without let or hindrance."
All unquestionably true ; but then all these considerations should have been submitted and pressed before
signing a treaty. It is vain to ask for the application
of these views and reasonable principles, when the treaty
itself excludes their application.
Mr. Christopher Robinson, Q.C., the Canadian counsel
fully recognized and admitted the real difficulty of the
situation when he said in his oral argument before the
tribunal :
441 do not think your powers are sufficient to enable
you to frame regulations for the efficient protection of
the seal race.    In our judgment that would require regulations on the island, in Behring Sea and in the north
Pacific ocean."
The tribunal thought so too, and after making the
regulations it deemed proper in respect of sealing outside
of jurisdictional limits, qualified their decision with a
special declaration that "in their opinion, these regula-
" tions, applicable to the high sea only, should be sup-
" plemented by other regulations applicable within the
44 limits of the sovereignty of each of the two powers
" interested."
A more candid confession that sufficient power had
not been given to the tribunal to efficiently deal by regulation with the preservation of the seal race could not
have been made.
It remains to briefly notice the proposed regulations
submitted to the tribunal. 55
The British commissioners had recommended a close
season and a zone around the breeding islands within
which pelagic sealing should be forbidden at all times.
This may have been perfectly right, under proper conditions, but as the establishment of that zone would
immensely contribute to the preservation and multiplication of the seals on the islands and thereby enrich the
owners of the islands, it should never have been proposed unqualifiedly but should be the concomitant of
some corresponding concession from the Americans.
However the treaty left no leeway for concession.
It is plain that the creation of a neutral zone around
the island is in effect, not merely to enlarge and
protect the breeding grounds, but to create a buffer
against the pelagic sealer in favour of the owners of the
rookeries on the islands. However, seeing the terms of
the treaty and the report of the British commissioners, it
seemed inevitable that a zone of some extent would be
created about the islands . The British Government therefore proposed a zone of 20 miles, a close season in Behring
Sea from the 15th September to 1st July, and the licensing
of sealers.
It will be remembered that Mr. Blaine had as late as
the 17th December, 1890, proposed a close time from the
15th May to 15th October, of each year, and a neutral
zone of 20 leagues (60 miles) around the islands, and
added: This will prove an effective mode of preserving the
seal fisheries for the use of the civilized world.
But what was the proposal of the United States before
the tribunal of arbitration ?
It was simply that the tribunal should prohibit sea Pi
56 •
sealing, not in a zone of 60 miles around the Pribyloff
Islands, for 5 months in the year, not that it should prohibit sea sealing within the 800,000 square miles of water
comprised in Behring Sea, alone ; but that it should
prohibit sea sealing in those portions of the Pacific Ocean
(including Behring Sea) that are north of 35 ° of north
latitude (the Pribyloff Islands are in 57 ° north latitude)
and east of the 180th meridian of longitude west from
Greenwich, all the year round, and for all time !
In effect they asked that pelagic sealing, should be
annihilated in toto, and that all the waters of the Pacific
ocean to which seals resort should be constituted a feeding ground for the Pribyloff slaughter house.
The arbitrators made the following regulations, Sir
John Thompson, Prime Minister of Canada, and the two
American arbitrators dissenting.
Article 1. The Governments of the United States and
Great Britain shall forbid their citizens and subjects
respectively, to kill, capture, or pursue at any time and
in any manner whatever, the animals commonly called
fur-seals, within a zone of 60 miles around the Pribyloff
Islands, inclusive of the territorial waters.
The miles mentioned in the preceding paragraph are
geographical miles, of 60 to a degree of latitude.
Article 2. The two Governments shall forbid their
citizens and subjects respectively to kill, capture, or pursue in any manner whatever, during the season extend- 57
ing, each year, from the 1st May to the 31st July, both
inclusive, the fur-seals on the high sea, in the part of the
Pacific Ocean, inclusive of the Behring Sea, which is
situated to the north of the 35th degree of north latitude
and eastward of the 180th degree of longitude from
Greenwich till it strikes the water boundary described
in Article I of the Treaty of 1867 between the United
States and Russia, and following that line up to the
Behring Straits.
Article 3. During the period of time and in the waters
in which the fur-seal fishing is allowed, only sailing-
vessels shall be permitted to carry on or take part in fur-
seal fishing operations. They will, however, be at liberty
to avail themselves of the use of such canoes or undecked boats, propelled by paddles, oars, or sails, as are
in common use as fishing boats.
Article 4. Each sailing vessel authorized to fish for
fur-seals must be provided with a special license issued
for that purpose by its Government, and shall be required
to carry a distinguishing flag to be prescribed by its
Article 5. The masters of the vessels engaged in fur-
seal fishing shall enter accurately in their official logbook the date and place of each fur-seal fishing operation,
and also the number and sex of the seals captured upon
each day. These entries shall be communicated by
each of the two Governments to the other at the end of
each fishing season.
Article 6. The use of nets, fire-arms, and explosives
shall be forbidden in the fur-seal fishing. This restriction
shall not apply to shot guns when such fishing takes
place outside of Behring Sea during the season when
it may be lawfully carried on. Hi
•    ^  .     "f    ;§     .   I ;1 . 58 .;.   .
Article 7. The two Governments shall take measures
to control the fitness of the men authorized to engage in
fur-seal fishing. These men shall have been proved fit
to handle with sufficient skill the weapons by means of
Which the fishing may be carried on.
Article 8. The regulations contained in the preceding
articles shall not apply to Indians dwelling on the coasts
of the territory of the United States or of Great Britian,
and carrying on fur-seal fishing in canoes or undecked
boats not transported by or used in connection with
other vessels and propelled wholly by paddles, oars, or
sails, and njanned by not more than five persons each in
the way hitherto practised by the Indians, provided such
Indians are not in the employment of other persons, and
provided that, when so hunting in canoes or undecked
boats, they shall not hunt fur-seals outside of territorial
waters under contract for the delivery of the skins to any
This exemption shall not be construed to affect the
municipal law of either country, nor shall it extend to
the waters of Behring Sea, or the waters of the Aleutian
Passes. j|f
Nothing herein contained is intended to interfere
with the employment of Indians as hunters or otherwise
in connection wTith fur-sealing vessels as heretofore.
Article 9. The concurrent regulations hereby determined with a view to the protection and preservation of
the fur-seals shall remain in force until they have been,
in whole or in part, abolished or modified by common;
agreement between the Governments of the United;
States and of Great Britain.
The said concurrent regulations shall be submitted
every five years to a new examination, so as to enable 59
both interested Governments to consider whether, in
the light of past experience, there is occasion for any
modification thereof.
The regulations concede the British contention, as to
a zone around the breeding islands, but make it a zone
of 20 leagues, instead of 20 miles ; fix a close time from
1st May to 31st July, but instead of restricting it to
Behring Sea, apply it to the Pacific Ocean, (inclusive of
Behring Sea) north of 35th ° north latitude, and roughly
speaking eastward of the 180th degree of longtitude
from Greenwich—-restricting the American pretention that
pelagic sealing should be completely prohibited in the
.same waters.
The other regulations prescribe the sort of vessels
that may participate in sea sealing, and establish a licensing system for them. The Governments are made re-
ponsible for the 1 fitness of the men authorized to engage in fur-seal fishing "—a regulation much criticised.
44 The use of nets, fire-arms and explosives" are prohibited
though " shot guns 1 may be used " outside Behring
Sea " in the fishing season.
The" arbitrators   unanimously  made   the  following
1. The arbitrators declare that the concurrent regula-
tions, as determined upon by the tribunal of arbitration,
by virtue of Article VII of the treaty of the 29th February, 60
1892, being applicable to the high sea only, should, in
their opinion, be supplemented by other regulations applicable within the limits of the sovereignty of each of
the two powers interested and to be settled by their common agreement.
3. The arbitrators declare moreover that, in their
opinion, the carrying out of the regulations determined
upon by the tribunal of arbitration should be assured
by a system of stipulations and measures to be enacted
by the two powers ; and that the tribunal must, in consequence, leave it to the two powers to decide upon the
means of giving effect to the regulations determined
upon by it.
Three of the arbitrators, viz : His Excellency Baron
De Courcel, the Honourable Mr. Justice Harlan and the
Honourable Senator Morgan, made the following recommendation :
2. In view of the critical condition to which it appears
certain that the race of fur-seals is now reduced in consequence of circumstances not fully known, the arbitrators think fit to recommend both Governments to come
to an understanding in order to prohibit any killing of
iur-seals either on land or at sea, for a period of two or
three years, or at least one year, subject to such exceptions as the two Governments might think proper to admit of.
Such a measure might be recurred to at occasional
intervals if found beneficial.
The arbitrators also found that the sealing vessels
named in a list submitted by Great Britain, were seized, 61
searched and captured by American cruisers of the United
States, outside the jurisdictional waters of the United
States,  under Article 8 of the treaty  which is as fol
Article 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.
The finding under this article is especially important
to the masters and owners of the Canadian sealing vessels
which are held by the award to have been unlawfully
seized while pursuing a lawful occupation on the high
Will the governments interested by common agreement supplement the regulations by making other regulations applicable within the sovereignty of the two
powers interested—as recommended by the tribunal ?
Without such supplementary regulations, the present
regulations though they may temporarily remove the
causes of dispute would seem to be doomed to failure in 62
preserving and protecting the seal race. They merely
facilitate a larger percentage of seals being clubbed
each year on the islands. They restrict the retail killing
of seals on the sea, but place no restriction on the wholesale slaughter of them on the islands. The individual
seal—swimming in the open sea—and with a " sporting
chance " for his life may only be killed at certain times
and by certain methods ; the whole herd may be driven
to the killing grounds on the breeding islands without let
or hindrance. The American interest in preserving the
seal race reminds one very much of the spider's interest in
the fly—until the latter " walks into his parlour."
And will not Great Britain and the United States require to take some joint action to protect themselves
against other nationals ? If these regulations be made
effective by " stipulations and measures to be enacted by
the two powers," that is if the United States and Great
Britain consent to restrict themselves, what hope is there
of other nations accepting such restrictions. In virtue of
the decision on the questions of jurisdiction and right there
is nothing to prohibit Russia or Japan or Mexico, or any
other nation from fitting out fleets of sealers and pursuing
pelagic sealing throughout the whole Pacific Ocean—
including Behring Sea, to within 3 miles of the shore of
the Pribyloff Islands ! The regulations of the Paris Tribunal are not operative against other nationals not parties
to that decision But other nationals have gained this
advantage as onlookers. They now know their rights.
They can hunt and fish seals without let, hindrance or
regulation. It is evident that other nations will not
assent to regulations which restrict their rights. They
not only remain free now, but they can remain free
while their two greatest competitors are bound. 63
A word as to the effect of these regulations if enforced
in their present form.
It has  been  repeatedly   stated that the regulations
come to an end at the expiry of five years.
A writer in Blackwood says : " whatever mischief
may be wrought by these rules, will come to an end in a
short time, or be remedied by further regulations." And again
in the same article the writer says : " She (Great Britain)
also insisted that the regulations should not be permanent, and in this she has fortunately been successful." But has
she ? Article 9, provides that, the regulations " shall
remain in force", " until abolished or modified by common
agreement." Failing that common agreement they are
permanent. The provision for submitting them every
five years to a new examination amounts to nothing
more than a provision for submitting the regulations for
reconsideration. But unless both Governments concur
in modification or abolition, the regulations stand until
changed or abolished by " common agreement." The
regulation is permanent unless both parties agree to
change or annul it.
There is one other consideration worthy the attention
of the high contracting parties. Who is to enforce these
regulations ? Is Great Britain to maintain a fleet to
police the 60 mile zone around Pribyloff Islands, to protect the American preserve against her own subjects ?
And who is to police the Pacific Ocean from 35 ° degrees
north latitude to Behring Straits and eastward of 180 °
of longitude from Greenwich? The combined navies
of the world would be inadequate for this service. Few
can comprehend the extent of sea surface within these 64
boundaries.    It would be safe to say  it covers a surface
approximately as large as the whole of the United States
and Mexico combined.
The Paris Tribunal in so far as it affirmed the great
principles of International law has rendered a lasting
service not only to Great Britain and the United States,but
to all nati6ns. In the determination of these questions
it was aided by able and distinguished counsel—and it is
upon itsfindings as to matters of right and jurisdiction that
its real title to live in history must rest. Its attempt to
legislate upon a new and imperfectly understood subject
and without the power to deal with the whole subject—
is confessedly an imperfect performance. Happily it
recognizes the imperfection and indicates the remedy
in so far as the two nations immediately interested are
concerned. But if Great Britain and the United States
should take the advice of the arbitrators, and supplement the legislation of the tribunal in away to protect
and preserve the seal race, in so far as their own nationals
are concerned, what will other nations do ? It is re-
gretable that the Marquis of Salisbury's suggestion, that
the questions of right should be first determined, and that
after that, regulations should be the subject of a separate
reference,was not adopted. Failing a separate reference it
is even more tobe regretted that HerMajesty's Government
did not persist in their refusal to assent to the sixth question formulated in Mr.Blaine's note,and which in a modified form became Article 7,of the Treaty. The British counter
proposal, made as late as 3rd June, 1891, to ascertain the
facts about seal life by commission before making regulations—with a view to an " international arrangement," ■ '   |,        65
between Great Britain, the United States, Russia or any
other power" "for the purpose of preserving the fur-seal
race in Behring Sea from extermination, if any regulations
are necessarv," was sound and reasonable—in fact the
only rational method of disposing of the subject on the
basis of finality. It compassed the whole subject of preserving the seal species in Behring Sea, and why Lord
Salisbury did not persist in it, must remain one of the
mysteries of diplomacy. It is inconceivable that Lord
Salisbury who had up to this time conducted the diplomatic correspondence in a manner that left nothing to be
desired, should have yielded upon a point that consigned
the success of his diplomacy to failure. He did yield,
and the j heads I win, tails you lose " clause was inserted
in the treaty.
The Canadian vessels were seized upon the high seas,
as I lawless intruders " in American waters, and as
poachers of American property. Great Britain asserted the
freedom of the seas and remonstrated against the seizures
as being against the laws of nations. This was the
pivotal point in dispute between the two countries.
The preservation of seal life was a side issue, insinuated
into the controversy and finally into the treaty in a way
that enabled the Americans to gain by regulation what
they were not entitled to by right. Why should any nation be asked to surrender any portion of its rights without
some compensating advantage and without compensation
assessed and determined, for past injuries? It would
be the merest hypocrisy to pretend that the American interest in the prevention of killing of seals on sea was unconnected with an interest in the catch on land. If the
preservation of the seals was the first and real consideration, and if Great Britain and other powers were willing
■^*TW™«l^mammmmMBm m
66 |
to submit themselves to regulations limiting their right
to kill seals on the high seas, why in reason should the
Americans refuse to submit to regulations limiting their
rights to kill on land ?
It is a great satisfaction that Great Britain was
found to be right in its contentions on the main subject
in dispute, and that its triumph in this respect is unquestioned everywhere. It is satisfactory that under the
award the owners of the sealing vessels seized, and the
masters and mates of the vessels, have now established
indisputably their rights to compensation for injuries.
But while this is so it is regretable that victory was
purchased on conditions that put its fruits in peril, the
moment it was secured.
The form of the reference was the root of the evil.
For if our seamen were within their rights, exercising
a lawful calling on the high seas, when their vessels were
ruthlessly seized and they themselves imprisoned and
fined, they should have been awarded compensation
by the Tribunal, or at all events provision should have
been made for receiving compensation with certainty, and
the whole question not left open to "negotiation "—
w^hich simply means fresh bargaining—in which unfortunately the American wields a defter hand than the
Britisher. And then if the sea was adjudged free to us
and other nationals in common, why should we give up a
right to take of its fulness, of all it yields to man, without compensation or equivalent ? Alas, as Sir John
Thompson, too truly said in the House of Commons,
Canada went before the Paris Tribunal with " nothing
to gain," " but there was an opportunity for her to be
completely shorn at the instance of the United States." Sir John Thompson and Sir Charles Hibbert Tupper,
Mr. Christopher Robinson, Q. C. and the English Counsel
did all that human skill, energy and intellect could accomplish at Paris. They could not prevail against the
terms of the reference. Ajax sighed for a sight of his
foeman's face ; our champions were permitted to see
the faces of their foemen, and right well they battled
with them, and won. The sea was indeed free to all,
beyond dispute, for the future, and the owners of Canadian vessels seized on the high seas must be compensated
for injuries. These were the legitimate results of victory. But these results were frustrated by the reference,
under which in the contingency of victory " the liability " of the American Government was to form the subject of separate " negotiation," and the seas which had
been declared free, should without any compensation
whatever be subjected to restrictions in the interest of
the owners of the Pribyloff Islands, and of them alone.
Really the " common interest of mankind," so-called,
has demanded too great sacrifices of Canada,
The great seal arbitration has passed into history :
but we have not yet heard the last of the seal. i ? '
The Tribunal of Arbitration was constituted as follows :
H. E. the Baron Alphonse de Courcel, Senator of
France, nominated by France : President.
H. E. the Marquis E. Visconti Venosta, Senator of
Italy, nominated by Italy.
H. E. Monsieur Gregers Gram, Minister of State of
Sweden and Norway, nominated by Sweden and Norway.
The Right Hon. Lord Hannen, Lord of Appeal ; and
the Hon. Sir John Thompson, K. C. M G., Prime Minister
of the Dominion of Canada, nominated by Great Britain.
The Hon. John M. Harlan, Justice of the Supreme
Court of the United States ; and
The Hon. John T. Morgan, Senator of the United
States, nominated by the United States.
The Agents were :
The Hon. Charles H. Tupper, (now Sir Charles Hibbert
Tupper, K. C. M. G.,) Minister of Marine and Fisheries
of the Dominion of Canada, on behalf of the Government
of Great Britain.
The Hon. John W. Foster, on behalf of the Government of the United States.
The British Behring Sea Commissioners were :
Sir George Baden-Powell, K. C. M. G., M. P., Dr.
George Dawson, C. M. G.
United States Behring Sea Commissioners were ;
Mr. Thomas C. Mendenhall, Mr. C. Hart\Merriam.


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