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Behring Sea arbitration. Argument of Her Majesty's government Great Britain. Bering Sea Commissioners 1893

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Array     BEHRING   SEA   ARBITRATION. 
ARGUMENT 
OF 
HER   MAJESTY'S   GOVERNMENT. TABLE OE  CONTENTS.
The Augument is abeanged-as follows:
Preface   .. . • .. •• •• •• ••
Statement of questions raised in Article VI of the Arbitration Treaty
Propositions maintained iu Part I of the Argument .. a ■
Statement of varying character of the United States' contention
'The arrangement of the Argument set out
Page
1-10
11
11
12
13
ARGUMENT.
Part I.
*s    Argument addressed to the first four questions for decision under Article VI of the
Arbitration Treaty        .. .. . • •• •• •• «•
Conclusions established by the foregoing argument . • •. • • • •
14
26
Past II.
\S Argument addressed to the 5th question for decision under Article VI of the Arbitration Treaty, viz.: Has the United States any right of protection or property
in the fur-seals ?..            ..            ••            .. ••            • •             • •
Propositions maintained in Purt II              • •            .. . •             ..            . •
Statement of the Law of the United States and Great Britain asxto property in
anirnalsjfovK natures          . •             ..             .• • •             ..             • •
Application of principles of property and possession of wild animals to seals ..
The claim to protection apart from property              .. .,            ..
The United States' argument from suggested  analogy of laws of other nations
considered and answered  ..             ..            .. ..            ..             ..
The Falkland Islands .. .. ..   •
New Zealand         ..            ..            ..             .. ..            ..
Cape of Good Hope              ..            ..            .. ..
v>anaua    • •            ••            ••            «.            •• «,            . *            «•
Newfoundland        ..            I            ..             .. ..             ..            ..
Greenland or Jau Mayen fisheries       ..            .. .,            . „            ,.
The principles of Fishery Conventions considered     .. ..             „,
Russia.   White Sea              ,.            ..            .. .,
Behring Sea and Sea of Okhotsk         .. ..            ..            ..
Caspian Sea .. ..
Uruguay ..
Argentine Republic               ..            ..            .. ..            ..             ,,
Japan      ,.            ..             ,,            ,,             ., ,,            „,             M
Irish oyster fisheries              ..            ..            .. ..            .,            ..
Scotcb herring fisheries        ..            ..            .. ..            ..             .,
Ceylon pearl fisheries .. .. ,.
Australian pearl fisheries       ..
France     ,,
Algerian coral fisheries
Italian coral fisheries             ..             .,             .. ,,
Norwegian whale fisheries    .. .. ,.
Colombian pearl fisheries
Mexican pearl .fisheries         ..             ..            .. ,
[182]
27-
27
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41
41
43
43
44
45
46
46
47
47.
48
48
48
48
50
51
51
52
52
53
53
53
54
54 \s    Argument addressed to the question of Regulatio
Paet IV.
Damages and compensation—
1. British claim for damages
2. „ „        compensation.. ..
3. United States' claim for damages
4. „ ,i       compensation
No. 1.   Remarks on the United States' Counter-Case
No. 2.    Remarks on the United States' Evidence
v^ Index  BEARING SEA ARBITRATION.
Argument of Her Majesty's Government.
PEEJACE.
IN August 1886, without any previous protest
or warning, the Government of the United
States seized the British schooners § Carolena,"
"Onward," and "Thornton" in Behring Sea,
which were then engaged in pelagic sealing
there.
The | Carolena " was seized in latitude 55° 50'
north, longitude 168° 53' west; the " Onward | in
latitude 54° 52' north, longitude 167° 55' west,
and the " Thornton " in about the same latitude
and longitude as the " Carolena." These
schooners were, at the time of their respective
seizures, at a distance of more than 60 miles
from the nearest land, St. George and Unalaska
Islands. After capture they were taken by the
United States' revenue-cutter " Corwin'' to
Unalaska. They were tried before Judge Dawson, of the United States' District Court of Sitka,
and the masters and mates of the vessels were
fined in a considerable sum, and, in addition,
sentenced to a term of imprisonment. The
vessels, meanwhile, were detained.
On receipt of intelligence of these seizures,
Sir L. S. Sackville "West, British Minister at
Washington, at once made inquiries; and by the
instructions of Her Majesty's Government, on
the 21st October, 1886, he entered a formal
protest against these seizures of British vessels.
Mr. Bayard, the Secretary of State, wrote, on
the 3rd Eebruary, 1887, to Sir L. S. Sackville
West, announcing the discharge of the vessels,
and the release of all persons under arrest,
adding that this order was issued I without
conclusion of any questions which may be found
to be involved in these cases of seizure."
[182J B The men in custody were released under
circumstances of great hardship, being turned
adrift, without means, in a place many hundreds
of miles from their homes.
On the 12th April, 1887, Mr. Bayard wrote
that Regulations and Instructions to Government
vessels were being framed, and that he would, at
the earliest possible date, communicate with
Sir L. West; but without any such communication being made fresh seizures took place in
July and August of 1887, and renewed protest
was made by Great Britain.
No seizure was effected in 1888, though
pelagic sealing by British vessels was pursued in
that year in Behring Sea.
In 1889 five British ships were seized in
Behring Sea, and three others were peremptorily
ordered out of the Sea.
In 1890 no seizures were made, though pelagic
sealing was still carried on in Behring Sea.
The Government of the Queen remonstrated
against the high-handed action of the United
States as without warrant of law, and as an
unjustifiable invasion of the rights of British
subjects. But the correspondence has been
carried on by them with an earnest desire to
avoid recourse to measures of force in retaliation
for those adopted by the United States, and
in the confident belief that their rights would
be surely and effectively vindicated by pacific
methods, and just redress obtained for the wrongs
committed.
As the result of prolonged negotiation and
discussion the Treaty of Arbitration, from which
this Tribunal derives its authority, was entered
into, and on the 18th April, 1892, the Convention
or modus vivendi (intended to cover the period
which might elapse before the award of the
Arbitrators) was concluded.
Hence it is that now, and for the seventh time in
the course of the present century, the Governments
of Great Britain and of the United States appear
before an International Tribunal of Arbitration.
To-day they submit existing differences to a distinguished body of jurists, with the full confidence
that, in so far as the adjustment of those differences
depends upon the ascertainment of legal rights,
this august Tribunal will act upon recognized
principles of law, and upon such principles alone;
and with equal confidence that, in so far as
that adjustment may properly have regard  to
IgBflff&KES other than legal rights, the decision of this
Tribunal will be just and equitable, having
regard to all the circumstances of the case, and
to all the important interests involved. This
Tribunal will seek neither to diminish nor to add
to the powers with which it is invested, and it
cannot be doubted that each of the Governments
.will loyally accept its authoritative judgment.
Before proceeding with the Argument, which
is now presented in accordance with the procedure prescribed by the Treaty, and which
recapitulates the facts and discusses in some detail
the principles applicable to them, the Government of the Queen deem it expedient, to put
before the Arbitrators a general view of the
claims advanced by the United States, and of
the contentions which arise in~relation to them.
Those claims are divisible into two heads.
Under the first head the United States claim,
in various modes, exclusive rights in and over
the greater extent of that part of the Pacific
Ocean called Behring Sea, and in the fur-seals
frequenting that sea, rights which they contend
justify them in excluding the ships of every
other nation from the pursuit of pelagic sealing
therein, and in searching, seizing, and con-
. denming such ships as engage in that pursuit.
This is, indeed, hardly a full statement of the
pretensions advanced, for, carried to their logical
conclusion, some of the arguments of the United
States would equally justify them in treating that
vast expanse of water as a mare clausum to all the
world: so that the navigation of those waters by
the nations  of the world would be  dependent
solely on the moderate exercise
by
the United
States of rights which they claim to possess,
but upon which they do not insist.
Under the second head the United States
claim that, by the authority of this International
Tribunal, concurrent rules shall be established
for the proper protection and preservation of
fur-seals in or habitually resorting to Behrinsr
Sea.
It will be seen how essentially these two
divisions of claim differ one from the other.
Under the first division the United States
invoke the high authority of this Tribunal to
affirm in them the existence of dominion and
jurisdiction which conflict with long-established
principles touching the rights of nations and the
freedom of the seas. 4
The Government of the Queen deny the
existence of any such dominion and jurisdiction,
and to their assertion have offered and continue
to offer strenuous opposition.
But, on the other hand, when the rights
asserted are distinctly abandoned or are negatived,
and when it is admitted that the concurrence of
Great Britain is required to any Regulations, the
Government of the Queen will willingly join
with the United States in seeking the aid of this
impartial Tribunal in the consideration of Rules
which shall recognize that the protection and
preservation of fur-seals is not a matter affecting
the interests of the United States alone, and which
shall be just and expedient in view of all the
circumstances of the ease, and having regard to
all interests which are concerned.
How, then, is the case put as one of right ?
Seldom, if ever, has such a claim been based
upon such varying contentions.
Seldom have the arguments supporting a claim
of right been shifted so lightly from one standpoint to another.
Now it is asserted as a claim of old descent
from B/ussia; then, when it is shown that Russia
neither had nor claimed to have a right at all
commensurate, it becomes a claim by the United
States in their own right of dominion.
At one time it is a claim to a vast area of Behring
Sea as territorial waters; but, when the limits of
territorial waters assented to by all nations are
insisted on, it becomes reduced to a claim of
jurisdiction on the high sea—a claim based upon a
false analogy.
Eur-seals are undeniably animals feres nat
ures.
yet a claim to property therein, with all its
attendant rights, is asserted, and they are gravely
relegated to the same category as a herd of cattle
on the plains. Then, when the impossibility of
establishing property in free-swimming animals
in the ocean is demonstrated, the pretension resolves itself into a general and undefined claim
to protect the seals in the Pacific.
Einally, a vague appeal is made to the principles of the common and the civil law, to the
practice of nations, the laws of natural history,
and the common interests of mankind; but one
looks in vain for any vindication of the unprecedented pretensions put forward upon any such
principles.
Yet the issues are clear :— Was the Government of the United States,
legally justified in seizing British vessels engaged
in pelagic sealing in Behring Sea outside
territorial waters ?
Did the sailors on board those vessels, who owed
no allegiance but to their Queen, violate any right
of the United States or of its citizens in such
pelagic sealing ?
The historical and jurisdictional aspects of the
matter have been discussed at length in the
British Case and Counter-Case. In the United
States' Counter-Case it is stated that the questions
involved in them are of secondary and very
limited importance.
But the historical and jurisdictional considerations have a bearing upon the case, the importance
of which cannot be thus lightly dismissed.
The United States, in extending their laws over
the eastern part of Behring Sea, have made a distinct claim to include that part of the Pacific
within their territorial dominions, and also to
protect the seals in Behring Sea, as if the pelagic
industry were carried on within their dominions.
Judges in the Courts of the United States have
declared this to be the true meaning of the
Statutes they were called upon to interpret and to
enforce against the British vessels.
The United States cannot substantiate their
claim in virtue simply of their possession of the
Territory of Alaska. They must rest it on the
Treaty of Cession. The effect of that cession'
depends upon two points :—
1. What did it profess to cede ?
2. What had Russia the title  to cede, for
Russia  could   not
assign
what   she   did   not
possess r
In this connection the Treaties of 1824, 1825,
and 1867 are important, since their text and
history show that Russia never made claim to
such rights as are now alleged; that she made
a claim of a different nature, and made that claim
only immediately to abandon it; and, lastly, that
Russia did not even pretend to cede the rights now
asserted.
Yet the Sections of the Revised Statutes
relating to Alaska under which the British vessels
have been condemned, as interpreted by the Courts
of the United States, are based on dominion and
on the doctrine of. mare clausum: And by this
interpretation, not the prohibition against sealing
alone, but all "the.laws of the United States;.
fl82] C 6
relating to customs, commerce, and navigation,"
have been extended over the whole of the eastern
part of Behring Sea.    If this interpretation were
sound and warranted by the Treaty of Cession,
the answer is complete; the law of nations does United States'
1 . •  •     i  Case, Appendix,
not recognize' such an extension or municipal vol -h p# 92 et Seq.
law against foreigners ; and the law, in so far as
it applies to foreigners, is ultra vires.   But if this
interpretation is not correct, then these Sections
do not extend beyond the territories, islands, and
territorial waters of Alaska Territory, and the
decisions of the Courts have no warrant even in
the legislation of the United States.
Considerations such as these, sapping as they do
the very foundations of the claim of the United
States, cannot be treated as other than most
material to the due determination of the questions
submitted to the Arbitrators.
Nor is it of less importance to recapitulate
with some insistence and circumstance of argument the fundamental principles on which the
freedom of the sea reposes.
Can it be denied that the claim of the United
States, with or without its pretensions of descent
from Russia, finds no warrant in these fundamental principles ? If denial were possible, it
would have been unnecessary to dive into the
Statutes of other nations for analogy. Yet never
was the argument from analogy put to such
strange uses. Principles of construction have
been applied to foreign laws which the Judges,
in whose hands the construction of those laws
rests, would never recognize. And on foundations so loosely put together conclusions have
been based at variance with the fundamental
principles of legislation and interpretation.
Shorn of all support of international law, and
of justification from the usage of nations, the
claim of the United States to possess and to protect
the seals in the high sea takes, at last^ its final
form—as claim of property.
Yet not wholly is it rested on paraperty. The
greatest jurists of the world have dealt with)
I property " and | possession " in such fashion,
have defined their meanings with such precision
of thought and language, that iii is not surprising the United States should shrink from
the hopeless task of attempting to formulate
a new species of ownership. And so> at kat,.
driven from all the standpoints of admitted* and
long-known rights, the argument of the United
WW States takes refuge in a claim for protection,
where there is no property, under circumstances
so novel that its supporters confess with candour
that it can be rested on no precedent, but that a
precedent ought to be established by international law to meet the exigencies of the
case.
To all this shadowy claim the Government
of the Queen submit but one answer—the Law.
It is sought to support this strange right by
reason of the industry of the United States*
citizens, and the benefit which that industry is
said to confer on the markets of the world. But
the rights of industry and the benefits of others
interested therein are already cared for by the
law.
It is said that the United States has a right to
the seals as to the products of the soil. The
law already sufficiently protects the products of
the soil.
Animals are not products of the soil. The
birds building in the trees, the rabbits burrowing
in the ground, arC' but wild animals to the
law. Yet in respect of them the law has
already defined the extent of the rights of
property, and has protected these rights.
Again, the claim is to the increase of the seal
as to- the sheep-farmer is given the increase of
his flock. The law deals with the increase of
the flock; and the increase of wild animals it
deals with too.
" An industry the property of the nation on
whose shores it is carried on"—such is the
form in which the United States' claim is
presented by one of its ablest advocates, a form
which evades the most elementary questions as
to the foundation, the nature, and the extent of
the rights so claimed.
The whole case, and every part of it, and every
form in which ingenuity can frame it, are covered
by the law. And to this law Her Majesty's
Government most confidently appeal.
And there is another law to which that
Government appeal with equal confidence—the
law on which depends the freedom of the sea.
What is the freedom of the sea ?
The right to come and go upon the high sea
without let or hindrance, and to take therefrom
at will and pleasure the produce of the sea. It
is the right which the United States and Great
Britain endeavoured, and endeavoured success-
">k I
8
fully, to maintain against the claim of Russia
seventy 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, as of right and for all time,
to let and hinder the vessels of all nations in their
pursuit of seals upon the high sea; to forbid
them entrance to those vast seas which the United
States have included in the denomination of the
<l waters of Alaska; " to take from these vessels
the seals they have lawfully obtained; and to
search, seize, and condemn the vessels and the
crews, or with show of force to send them
back to the ports from which they set out.
And so, according to the contention 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
belligerents, or against pirates with whom no
nation is at peace.
Erom 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 sea.
This, then, Her Majesty's Government submit
is the issue raised by the dispute, an issue which
they leave with confidence in the hands of this
Tribunal.     Were the  British vessels right or
ED
, wrong ? If the United States' Congress could by
the law of nations legitimately pass this Statute
to bind foreign vessels upon the high seas, they
were wrong in refusing to obey ; but if Congress
could not legitimately bind foreign vessels, their
seizure was unjustifiable, and their owners must
be compensated.
But there is another aspect of the question to
which (the legal questions having been decided
in favour of Great Britain) the attention of the
Arbitrators must be called before their labours
are complete : the question whether any, and, if
so, what Sealing Regulations it may be necessary
to formulate.
The position which Her Majesty's Government
have consistently maintained on the subject of
these Regulations is clearly set forth in the
Introduction to the Second Part of the Counter-
Case presented on its behalf.    It suffices now, in the briefest manner possible, to insist on that
position.
So long as the claim of the United States to
impose Regulations on pelagic sealing is based
on the assertion of a legal right, that claim
is strenuously opposed, and the right as strenuously denied.
But when the question is put on the lower and
practical plane of common benefit to all the nations
interested, on the recognition of the right of the
pelagic sealer as well as of that of the island
sealer, then the British Government will cordially
co-operate in giving effect to such measures as
may be found necessary for the preservation of
the fur-seals.
On this basis the question assumes the negation of the right which the United States now
claim, and admits the necessity for the concur-
rence of Great Britain. Her Majesty is, and
always has been, ready to concur in Regulations
just and equitable in the interests of all concerned; but she has been unable to join in
the consideration of Regulations based on the
principle that the United States have a legal
right to the protection which those Regulations
-are intended to give.
Should any Regulations be the outcome of this
Arbitration, it is confidently expected by Her
Majesty's Government that they will be such as
not to protect only the United States in the
manner which their present contention" urges,
but to protect an industry in which all the nations
of the world have an interest.
It were useless to make Regulations which
should bind only the citizens and subjects of the
United States and Great Britain. As in the case
of the Jan Mayen fisheries, so in the case of the
Pacific fisheries, the subjects of all the nations
who now participate in them, or who may be
reasonably expected to do so, ought to be equally
bound.
Her Majesty's Government cannot leave this
subject without expressing regret and disappointment at the position apparently assumed by the
United States on the question of Regulations.
It is- discussed by the United States as if the
exclusion of all the other nations of the world
from a share in the fur-seal industry in the
western seas were to be the aim and purpose of
such Regulations. Her Majesty's Government
[182] P 10
M
absolutely dissent from this view, and feel confident this Tribunal will not approve it. If the
existing rights of nations are to be abridged, they
can justly be abridged only in the interests of all,
and the United States of America must be
prepared to do their part by the adoption of
Regulations and improved methods on the islands
to preserve the fur-seals.
Einally, the broad contentions of the respective
Governments, stated in popular language, are
these:—
1. The United States claim dominion, and
the right to legislate against foreigners, in two-
thirds of that part of the waters of the Pacific
Ocean called Behring Sea.
2. They claim a right of property in wild
animals which resort for a certain season of the
year only to their territory, derive no sustenance
therefrom, and, during the greater part of the
year, live many hundreds of miles away from
that territory in the ocean.
3. They claim the right to protect that
alleged right of property by search, seizure,
and condemnation of the ships of other nations.
4. Eailing the establishment of the right of
property, they claim a right to protect the furr
seals in the ocean, and to apply, in assertion
of that right, the like sanctions of search,
seizure, and condemnation.
5. And lastly, failing these assertions of
right, they claim that Rules shall be framed in
the interests of the United States alone which
shall exclude other nations from the pursuit of
fur-seals.
On the other hand, Her Majesty's Government
claim—
1. Ereedom of the seas for the benefit of all
the world.
2. That rights of property, and rights in relation to property, be confined within the limits
consecrated by practice, and founded on general
expediency in the interests of mankind.
3. That, apart from agreement, no nation
has the right to seize the vessels of another
nation on the high seas in time of peace for
offences against property excepting piracy.
4. That any Regulations to be established
should have just and equitable regard to all
interests affected.
In support of the views of Her Majesty's
Government thus generally stated, the following
^SUfSaUtniSmP^K^* 11
Argument is respectfully submitted for the consideration of this Tribunal of Arbitration.
Questions for decision under
Article VI.
Statement of Questions raised in Article VI of the
Arbitration Treaty.
Article VI. (1.) What exclusive jurisdiction
in Behring Sea, and what exclusive rights in the
sea fisheries therein, did Russia assert and exercise prior and up to 1867 ?
(2.) How far did Great Britain recognize and
concede " these claims of jurisdiction as to the
seal fisheries "?
(3.) Was Behring Sea included in "Pacific
Ocean " in the Treaty of 1825 ?
What rights, if any, in Behring Sea did
Russia hold and exclusively exercise after tMs
. Treaty ?
(4.) Did not all Russia's right: (a) to jurisdiction, (&) as to the seal fisheries in Behring Sea,
east of the water boundary, pass to the United
States unimpaired under the Treaty of 1867 ?
(5.) Has the United States any, and, if so,
what, right (a) of protection (&) or property in
the seals frequenting the islands of the United
States in Behring Sea when they are found
outside the ordinary 3-mile limit ?
The points raised by these questions are met by
Great Britain in this written argument by esta-
blishing the following principal propositions:—
"H
Propositions maintained by Grea
Britain
Propositions maintained in Part I of the
Argument of Great Britain.
1. That the size and geographical conditions of
Behring Sea are such that no nation has a right
to close the sea against the navigation of the
ships of other nations; nor to claim or assert
territorial dominion over the sea; nor to claim
or assert the right of jurisdiction, nor to exercise
jurisdiction, over the sea beyond the 3 miles of
territorial waters, as recognized by international
law.
2. That Behring Sea is the high sea, and forms
part of the Pacific Ocean; and that no nation
has a right to claim, assert, or exercise jurisdiction on the sea in any other cases than those
recognized by international law.
3. That, in 1821 only, and at no other time,
Russia asserted a jurisdiction over so much of 12
'Behring Sea as was included in a belt of 100
Italian miles from the shores of her territories:
That she never exercised, such jurisdiction, but,
on the protest of the United States and Great
Britain, immediately withdrew her assertion
of it, and limited her claim to the 3 miles of
territorial waters recognized by international
law:
That Russia did not at any time assert or exercise jurisdiction over the whole of Behring Sea,
nor claim to close that sea, nor did she at any
time assert or exercise the rights of territorial
dominion over any part of such sea.
4. That the withdrawal of the claim to 100-mile
jurisdiction was confirmed by both the Treaties
.which Russia entered into (1) with the United
States in 1824, and (2) with Great Britain in
1825.
5. That the United States acquired from Russia,
under the Treaty of 1867, no rights beyond the
sovereignty of the ceded territories (which did not
include any part of Behring Sea) and the right
of jurisdiction over the 3 miles of territorial
waters as recognized by international law; and
that the United States have no right, in virtue of
their possessions on the shores and the islands of
Behring Sea, to any dominion over that sea, or
to any jurisdiction in its waters, other than that
recognized by international law in the 3 miles of
territorial waters.
6. That it was beyond the right of the
United States to make laws under which British
vessels could be condemned by the United States'
Courts, or under which the United States' cruizers
could interfere with British vessels engaged in
pelagic sealing in Behring Sea, and that such
laws were legitimately disregarded by British
subjects.
Varying Character of United States1 Contenti
ion,
In view of the great complexity and varying  Different forms in which the United
nature of   the   United  States'  contention,   the States' claim is presented.
following brief survey of the manner in which 	
their case has been presented is submitted.
This is the more essential, as the United States'
diplomatic correspondence, and other documents
in which the United States' claim is advocated, do
not keep the points clear, but move imperceptibly
from one standpoint to another. 13
The points to which the argument of the
United States is directed are these:—
1. That Russia claimed and exercised the
jurisdiction in Behring Sea now asserted, and
ceded it to the United States, and that, therefore,
the United States are entitled to exercise it in
virtue of the Treaty of Cession of 1867-
2. That the United States have the like jurisdiction over Behring Sea in virtue of their own
possessions, and in their own right of dominion.
3. That the United States have jurisdiction
over the eastern portion of Behring Sea as part
of their territorial waters.
4. That the United States have jurisdiction
for the protection of the fur-seal in virtue of an
alleged right of nations to exercise similar jurisdiction on the high sea, apart from any dominion
or special jurisdiction over Behring Sea.
5. That the United States have a property in
the seals on account of their breeding and temporary residence on the Pribyloffs, and a right to
follow such seals and protect them in the high
sea, apart from any dominion or special jurisdiction.
6. That the United States have such right
of protection apart from any right of property.
Of these six claims, it is submitted that the
last three, so far as they assert a jurisdiction
extending beyond Behring Sea, or the eastern
portion thereof, are not included in the reference
to this Tribunal made by the Treaty of Arbitration.
Division of Argument.
The following Argument is thus divided :—
In Part I the grounds are set forth on which
Great Britain claims that all the questions
arising under the first four questions propounded
in the Vlth Article of the Treaty of Arbitration
should be decided in favour of Great Britain.
In Part II the United States' claim of right of
protection or property in fur-seals is considered,
and the grounds are set forth on which Great
Britain claims that the fifth question propounded
should be decided in her favour.
[182] E Iff
U
In Part III the question of regulations is
discussed; and.
In Part IV the claims of Great Britain and of
the United States respectively for damages are
considered.
ARGUMENT.—PART I.
Argument addressed to the first four Questions for
Decision under Article VI of the Treaty of Arbitration.
Behring Sea is the northernmost part of the
Pacific Ocean.
It washes the north-western parts of the coasts united States'
of America and the north-eastern part of Asia.      t:ase» P-l2-
The Pacific and Arctic Oceans are connected
by Behring Strait, 48 miles in width.*
From east to west, Behring Sea has an extreme
width of 1,260 miles; from north to south, it
extends over about 14 degrees of latitude, or more
than 800 miles.
The area of Behring Sea is stated in the United Ibid., p. 11.
States' Case to^be 873,128 square statute miles.
The Aleutian and Commander Islands are
recognized as marking the southern limits of
Behring Sea. Between the Aleutian and Com-
mander Islands, and between the latter and the
Kamtschatkan coast, are stretches of open sea
190 and 95 miles wide respectively. The western
part of the Aleutian chain forms a widely
scattered archipelago, with three open sea
stretches of 50 miles or more in width each>
and many navigable channels and passes
through all parts of this group. So large are
the spaces of sea as compared with the lengths of
the islands, that from the western end of the Eox
Islands to the coast of Asia, a distance of some
1,000 geographical miles, there are about 660
miles of sea, being nearly two-thirds of the entire
distance.
The free navigation of the Pacific northward to
the Arctic Ocean is, in fact, in no sense interfered
with by the intervening islands, but is, and always
has been, exercised by all nations through and
over all parts of Behring Sea and through
Behring Strait.
* Geographical miles in all cases, unless otherwise stated.
Nature, extent, and geographical
position of Behring Sea. m
m
No nation can close Behring Sea;
Nor claim dominion over it.
Pribyloff Islands.
Waters between these islands and the
mainland cannot be United States'
territory.
Nor within their territorial waters.
British vessels wrongfully seized.
The geographical conditions of Behring Sea, its
enormous size, the wide open navigable passes
through and to the west of the Aleutians,
together with the great width of the northern
opening through Behring Strait, renders it
impossible for any nation practically to close the
sea against the ships of other nations.
It is not a land-locked sea, or a sea so surrounded by land as to entitle nations to whom
the adjacent territories belong to assert a territorial dominion over it, but is in every sense of
the term the high sea.
The Pribyloff Islands, upon which are the
principal breeding resorts or " rookeries " of the
fur-seal in the eastern part of the North Pacific,
are situated in Behring Sea, and consist of four
small islands. Two of them only—St. Paul and
St. George—are at present resorted to by the
seals for breeding purposes. These two islands
are 40 miles apart.
The Pribyloff group is situated 180 miles to
the north of Unalaska Island in the Aleutians,
and nearly 300 miles to the west of the mainland
of Alaska, these being the nearest island and
mainland.
The position of the Pribyloff group of islands
in the open sea is therefore such that no claim
could legitimately be made bv the nation owning
Alaska or the Aleutians to include the intervening sea within its territory, and no justification can be found for any attempt to extend
the territorial waters washing their .coasts,
respectively, beyond the 3 miles recognized by
international law, or to treat them as embayed
waters.
In the absence of Treaty, or of some claim
based on acquiescence, the right of exclusive
fishing on the high sea conceded to any country
by international law is limited to the 3 miles of
territorial waters.
On general principles of international law,
therefore, the places where the British vessels
were seized by the United States were not within
the territorial waters of the United States, but on
the high sea.
Alleged claims of Bussia.
It is   contended by the United States that
Russia asserted and exercised jurisdiction  over
Behring  Sez
not
zonsistent with the foregoing If
ill II!
16
principles, and that, either by express consent
of other nations or by acquiescence, Russia
asserted this jurisdiction effectively.
The important periods for consideration are as
follows:—
Prior to 1799,
1799 to 1821,
1821 to 1825,
1825 to 1867,
1867 and subsequently.
Prior to 1799.
Behring Sea was one of the vast partially
explored seas open to the world.
It had begun to be navigated by all nations,
and the right to a highway through the sea at all British Case, p. 20.
its openings had been exercised and established:
the rights of fishing and trading were also exercised.
Its eastern shores and islands, though not
fully explored or known, were being explored by
Great Britain, the United States, France, and
Russia.
Behring Sea open to all nations.
Russian Ukase of 1799.
This Ukase deals with the coast of America Character of the First Ukase,
and the islands, giving commercial privileges to British Counter-
the Russian-American Company. ase'p'
The territory was claimed by right of discovery;
a right which neither Great Britain nor the
United States admitted in negotiations.
The Ukase is purely territorial;  it  does  not
claim jurisdiction over  the   sea, or profess to
affect foreigners.   The territories were, and were
treated as, colonies separated from the Russian
Empire by the high seas.    The Charter to the United States*
Company   of   1844   expressly   uses   the   term Cafe' APP™dil»
r    I .     . v0'- ]j p* ^0-
■"colonies" for the territories in America; but
for Okhotsk on the Siberian mainland the term
used is " province."
No Russian legislation for Behring Sea exists;
it is not alleged, nor could it be proved, that
foreigners in Behring Sea were affected by
Rmssian Laws in general, or by the Ukase in particular.
Russia did not claim, nor does the Ukase pretend, to make Behring Sea mare clausum.
The Ukase of 1799 therefore leaves the question
of  dominion or jurisdiction  over Behring  Sea IT
British Case, p. 29 untouched. The highway to the Arctic Ocean
was recognized, and was afterwards used; also
fishing rights as on the high sea.
1799 to 182L
Eights of the high sea continued to
be exercised.
Rights of free navigation continued to be exercised unrestrained by Russia.
Russia continued only to enforce her territorial Ukase.
British Case, p. 37.     Behring Sea was soon frequented by foreigners
competing with  the   Company   in   navigation,
exploration, and trade.
Character of the Second Ukase.
Ibid,, Appendix,
vol. ii, Part I, p. 1.
Ibid., Part II,
No. 1.
United States'
Case, Appendix,
vol. i, p. 16.
Russian Ukase of 1S21.
Russia did not shut Behring Sea, nor claim it,
or any part of it, as territory; she only claimed
by this Ukase exclusive sovereignty on territory
in America from Behring Straits as far south as
51° N., together with exclusive jurisdiction 100
miles from the coast.
The claim was of territory on land, and jurisdiction to restrain trade along all the coasts of
that territory.
The United States' claim to territory and
dominion in the Behring Sea east of the line
of demarcation depends entirely on the cession of
1867 by Russia.
If Russia had not territory and dominion in
Behring Sea, she could not cede it to the United
States.
Notification of Ukase.
United Stales'
Case, Appendix,
vol. i, pp. 16, 24.
Protests    of    Great    Britain    and
United States.
British Case,
Appendix, vol. ii,
p. 14.
British Case,
Appendix, vol. ii,
Part JI, No. 2.
British Case,
p. 42, and
Appendix, vol. ii,
Part I, pp. 3 and 24
1821 to 1825.
This Ukase of 1821 was notified to Great Britain
and the United States.
The Rules annexed to it, and the Charter
issued at the same time, applied to Russian
subjects and to foreigners.
A protest was at once entered by both Governments, the British protest being directed both to
the claim of exclusive sovereignty over the territories, and of exclusive rights within the maritime limits specified. The United States' protest
was directed in the same way to every part of the
claim: to the claim to the territories south and
east of Behring Straits; to the extension of the
southern limit from 55° north to 51° north; and
to the extension of maritime jurisdiction.
Both protests were at first met by explanations
of the reasons for the Ukase: by statements that
[182] F 18
H -. H  L
Br
the Powers were expressly to understand that the
entrance to and navigation of Behring Sea had
not been affected except within the 100 miles
limit, but that this limit was insisted on for the
protection of Russian commerce.
After these protests, Russia issued instructions £&[& Case, p. 44
to her cruizers practically suspending the effect
of the Ukase in so far as the claim to maritime
jurisdiction was concerned.
This withdrawal was notified to Great Britain,
and a suggestion made that the delimitation of
boundaries should be matter of negotiation.
It was notified also to the United States, and
communicated by both Powers to their respective
Representatives.
The United States also informed the British Ibid., p. 43.
Minister   to   the   United   States  of   the same J-  1j *l?\
to Auams.j
fact, and this withdrawal was made the basis of
communications to the Russian Representatives
during the negotiations, and was never denied.
It was communicated with the consent of the British Case,
-r,       •        ax. -j i    , -i   -i   i Appendix, vol. ii,
Russian Ambassador m somewhat guarded Ian- p 46-
guage to British ship-owners.
Russia never withdrew or qualified the abandonment of the 100-mile jurisdiction claim, and
on this basis the negotiation of the Treaties
proceeded.
The abandonment, demanded both by Great
Britain and the United States, was not of any
specific part of her claim to jurisdiction, nor were
certain coasts specified along which this jurisdiction should not be exercised, but she abandoned
the whole claim to jurisdiction along the whole of
the coasts of the territories she claimed, and never
again revived or attempted to exercise it on any
part of the coasts.
The action of the " Apollon" in the case of British Case, p. 78.
the   "Pearl"   was   disavowed  by the Russian
Government.
Withdrawal by Bussia of her claim to
maritime jurisdiction.
The United States' Treaty of 1824.
The United States having objected to the claim
of territory by Russia south and east of Behrine
Straits, as far south as 51°, and also to the claim
of maritime jurisdiction along the shores of that
territory; further, Russia having agreed to withdraw that claim of maritime jurisdiction; the
Treaty was entered into to carry out the arrangements which had been come to.   It is therefore
Construction and effect of Treaty
of 1824. 19
British Case,
pp. 66, 72, 75.
obvious that the words of Article I,." any part
of the Pacific Ocean," include Behring Sea.
The fact that the United States also contested
the extension of the southern boundary does not
affect this position.
There was nothing unusual in using the
term | Pacific " to include Behring Sea; it was
commonly so used in despatches, by writers,
and by geographers at that time, and is now; it
is used in this sense by all the jurists who have
dealt with the Treaties, and by Greenhow, a
prominent official of the United States' Government, in official publications.
It was necessarily used in the Treaty in this
sense, because the abandoned-claim to restrict
freedom of navigation and fishing applied to
several parts of the Pacific Ocean, viz., Behring
Sea, the Sea of Okhotsk, and that part of the
Pacific which lies south and east of the Alaskan
territory.
The argument
that it applied only to the
Pacific Ocean south and east of the Alaskan
territory, and not to Behring Sea, is disproved
by the fact that the 100 miles claim of jurisdiction extended both to the north and to the south
of the ' Aleutians. Its withdrawal, therefore,
could not have been confined to the south, to
the exclusion of the north, unless it had been
expressly so stated.
Other provisions of the Treaty {e.g., Article II,
forbidding resort to any point where there was
a Russian establishment) manifestly applied to
the whole territory claimed bv the Ukase.
Construction and effect of Treaty
of 1825
The British Treaty of 1825.
It is submitted that the Treaties of 1824 and
1825 declared and recognized the rights of the
United States and Great Britain to navigate and
nsh in all parts of the non-territorial waters
over which the Ukase purported to extend:
that the body of water known as Behring Sea
was included in the phrase "Pacific Ocean" as
used in the Treaty of 1825 ; and that the limited
meanings placed on the term I north-west coast'*
or " north-west coast of America I in the United
States' Case are incorrect.
Throughout the negotiations which preceded
the Treaties, the words | north-west coast | were
used to include not less than the whole of the
North American coast from Behring Straits to 'i'*,-»*'-«»pt.*H%
20
51° north. If it had been intended to limit
this general term to a certain portion of the
coast, explicit language would have been used.
One contention of the United States, in effect,
limits the "north-west coast" to the lisiere defined
in the Illrd Article of the Treaty of 1825.
While on the one hand Article VI of the
Treaty was confined to the lisiere indiquee, on
the other hand, the reciprocal liberty of access
and commerce with each other's territories
secured by Article VII was clearly not confined
to the lisiere; the main proposals made with
regard to this related to its possession by Russia.
The other proposals, including that as to reciprocal
liberty of access, related to the whole of the northwest coast. In the words of Mr. Canning, writing
in 1824, the object was to secure reciprocal
access to the territories of the respective Powers.
This was effected by adopting, as Article VII British Counter-
of the British Treaty, Article IV of the United Case> P- 49-
States' Treaty, which gave to Russia and the
United States a reciprocal right of frequenting for
ten years the interior seas on the coast mentioned
in4Article III of that Treaty. This coast was
clearly the whole of the north-west coast from
Behring Strait southwards to about 54° 40',
Russia agreeing not to form any establishment
south of 54° 40', and the United States agreeing
not to form any to the north of that latitude.
It is submitted, therefore, that Behring Sea is
clearly included in the term | Pacific Ocean § in
the Treaty of 1825.
Article III of the Treaty of 1825 traces the
line of demarcation between the two Powers on
the coast of the continent and the islands of
North-western America.
Article IV defines the Eastern boundary of
the lisiere which was to belong to Russia.
Article V emphasizes the possession of the
lisiere by Russia by reiterating that the reciprocal
prohibition against forming establishments in the
possessions of the two parties respectively applied in the case of the Russian possessions both
to the coast and to the lisiere comprised within
those possessions.
Article VI dealt only with the lisiere, granting
to Great Britain a perpetual right of navigation
of all the rivers flowing to the Pacific across the
line of demarcation of* the lisiere indicated in
Article III.
.   Article VII, on the other hand, dealt with the
Analysis of the Treaty. 21
British Counter-
Case, p. 51.
coast of the continent mentioned in Article III:
it gave to the two parties a reciprocal right of
visit to all the inland waters, harbours, &c, on
this coast: it applied, therefore, to the coast of
the whole of the Russian possessions, as well as
to the whole of the coast of the British possessions.
If the right of access under Article VII were
limited to the coast of the lisiere, the reciprocal
character of the Article would be destroyed.
The text of the Treaty clearly shows, therefore, that the expression " north-west coast" included the whole of the coast on the north-west
of the American continent; and that the term
" Pacific Ocean " included all the waters washing
the north-west coast, including Behring Sea.
. This argument is supported by the fact that
in the Treaties of 1841,1843, and 1859, concluded
by Russia with Great Britain and other Powers
(and which are examined in the British Counter-
Case, pp. 51-52), the term " North-west coast of
America " is used in a manner showing conclusively that it included the coast of Behring Sea.
The Treaty of 1859 did not expire till 1869, i.e.,
after the cession of Alaska to the United States.
The notice issued by the United States in 1845
at the request of Russia warns the United States'
citizens against infringing the Treaty of 1824
by " resorting to any point upon the Russian-
American coast where there is a Russian establishment." This notice clearly applied to all the
coast of Behring Sea.
Cession to United States.
The Cession of Alaska to United States in 1867.
The whole of the Russian territories on the
north-west coast of America, together with the
islands, were ceded by Russia to the United States
Treaty of 1867.
United States' Statutes, &c, dealing
with Alaska
It is submitted that the United States' official
Acts and Statutes dealing with Alaska Territory
next mentioned, whatever their construction,
have no force or validity against foreigners, and
therefore afford no support to the position assumed
by the United States.   They are as follows:—
The Act of July 1868, section 1, extending the
laws of the United States relating to customs,
[182] G 22
commerce, and navigation over all the mainland, United States'
islands, and waters of the territory ceded to the Case' P- 78,
United States by Russia.
Section 1956,   Revised   Statutes, Chapter  3, ibid., Appendix,
title 23, prohibiting the killing of fur-seals and voL | P- 96'
other animals within the limit of Alaska Territory,
or in the waters thereof.
" An Act to provide for the protection of the Ibid-> P- "•
Salmon Fisheries of Alaska, 1889," section 3,
declaring that Section 1956, above, shall" include
and apply to all the dominion of the United
States in the waters of the Behring Sea;" and
that the Proclamation of the President, warning
all persons from entering such waters for the
purpose of violating the Statutes, shall be
published at each United States' port of entry
" on the Pacific coast."
A Proclamation of the United States' President Ibid., p. 112.
in 1889 (and also in 1890, 1891, and 1892),
warning all persons entering the waters of
Behring Sea, within the dominion of the United
States, for the purpose of violating Section 1956,
and authorizing seizure of vessels.
It is submitted that the application of these
Statutes and official Acts to foreigners is not
warranted by the Treaty of Cession of 1867, and
cannot be supported by any principle of law.
Thi
Treaty of Cession contained the following
Treaty of Cession, 1867.
provisions:
United States'
Case, Appendix,
vol. i, p. 46.
ARTICLE I.
oa
5a Majesty l'Empereur de Toutes les Russies
s'engage .... a ceder aux Eltats-Unis ....
tout le territoire avec droit de souverainete
actuellement poss6de par Sa Majeste" sur le
Continent d' Anierique ainsi que les iles contigues,
le dit territoire 6tant compris dans les limites
geographiques ci-dessous indiquees . . . ."
A line running through Behring Straits,
and thence to the south-west to a point between
Attu and Commander Islands, is drawn as l* la
limite occidentale des territoires cedes, demaniere
a enclaver dans le territoire c6d£, toutes les Iles.
Alebutes situees a Test de ce meridien."
The eastern boundary was the line of demarcation traced by the Treaty of 1825.
United States' translation and construction of the Treaty incorrect. United States'
Case, Appendix,
vol. i, p. 44.
British Case,
Appendix, vol. ii,
Part III, No. 3.
The right of property in all the vacant lands
and  public places,  &c,  is included
territoire cea'eY'
ARTICLE VI
".... La cession du territoire avec droit de
souverainete faite par cette Convention, est
declaree libre; . . . . et la cession ainsi faite
transfere tous les ■ droits, franchises, et privileges
appartenant actuellement a la Russie dans le dit
territoire et ses dependances."
These Articles are thus rendered into English
in the United States' Case :—
ARTICLE I.
"His Majesty the Emperor of All the Russias
agrees to cede to the United States, .... all the
. territory and dominion now possessed by His said
Majesty on the Continent of America and in the
adjacent islands, the same being contained within
the geographical limits heroin set forth . . . ."
A line running through the Behring Strait,
and thence to the south-west to a point between
Attu and Commander Islands, is drawn as 1 the
western limit within which the territories and
dominion conveyed are contained so as to include
in the territory conveyed the whole of the.
Aleutian Islands east of that meridian."
i jk
ARTICLE II.
The right of property in all the vacant lands
and public places, &c, is included | in the cession
of territory and dominion."
ARTICLE VI.
|. . . . The cession of territory and dominion
herein made is hereby declared to be free, ....
and the cession hereby made conveys all the
rights, franchises, a,nd privileges now belonging
to Russia in the said territory or dominion, and
appurtenances thereto."
In this translation the expression (twice
used) | Le territoire avec droit de souverainete "
is translated "the territory and dominion." 24
The accurate translation is, "The territory,
together with the right of sovereignty."
It expresses not merely a grant of territory,
but also of the sovereign rights over such
territory. It says nothing of sovereign rights or
dominion over the sea. The western boundary-
line is drawn not to include as territory or
dominion the waters to the east of it, but to show
that the islands and territory to the east of it pass
to the United States by the cession.
In this translation also the expression " terri-
toires c6deV' is translated "the territories and
dominion ceded."
Such translation is only permissible as a free
rendering of the French, and as incorporating the
same dominion or sovereignty which is alluded to
i.e.,
sovereignty over the
ceded
in Article
territories.
In the Vlth Article the expression "le dit
territoire et ses dependances 1 is translated " the
said territory or dominion and appurtenances
thereto."
The accurate translation is, | The said territory
and its dependencies."
On these   mistranslations  of   the Treaty  of United States1
Cession, are founded the United States' argument    se' P* 79,
and certain judicial decisions, to the effect that the
waters referred to in the Statutes were included
in the dominion ceded by Russia, and include all
Behring Sea to the east of the boundary-line.
Eurther, the inference drawn by the United
States, and submitted to the Arbitration Tribunal, is
that up to the time of the cession Russia continued
to claim dominion over Behring Sea, relinquishing
part of it to the United States; that this dominion so
claimed forty years after the Treaties of 1824-25
is evidence of British acquiescence in such claim;
and that therefore the United States are entitled to
have Question 3, and all other questions depending on it, answered in favour of the United States.
A reference to the language of the Treaty of
1887 shows that both arguments and inference
are unfounded.
There is nothing to warrant any larger meaning
being given to "waters thereof" than the usual
meaning, i.e., 3 miles of territorial waters.
Drawing an imaginary boundary-line through
the high sea for the purpose of delimitation of
territories on either side of it does not warrant
the inference that dominion over the high sea on
either side is  claimed.     Such  definition  of  a
United States' argument- and judgments based on such erroneous
translation and construction. United States'
Case, p. 223.
boundary-line is the only one possible where the
cession is of many islands and rocks, many of
which are not named or surveyed, and some of
which are even perhaps unknown.
The cession was of all territories within the
boundary-line, and the Treaty so expressed it.
An example of the use of water boundary-lines
for this purpose is furnished by the United
Kingdom Statute denning the limits of New
Zealand, which plainly refers only to territories
and islands within those limits. Yet the United
States, for consistency, assert, contrary to the
fact, that Great Britain thereby claims as within
the Colony all the high sea within those limits.
The United States' contention has been shown
to depend on an erroneous construction of the
Treaty of 1867.
The decisions of the United States' Courts
condemning British vessels for a supposed breach
of the United States' sealing laws adopt a similar
construction, and are therefore not to be
supported.
Three examples of such decisions, with the
judgments, are set out in the United States'
Appendix:—
Case of the "Thornton," 1886.
Decisions of United States' Courts cited
in United States' Case.
United States'
Case, Appendix,
vol. i, p. 114.
Dawson, J., held that " all the waters within the
boundary set forth in this treaty .... are to
be considered as comprised within the waters of
Alaska,"
The "Thornton," a British vessel, was seized
when fishing 70 miles south-east of St. George
Island, the nearest land, and was condemned.
Case of the " Dolphin " and other ships, 1887.
Ibid., p. 115. Dawson, J., held that Russia had claimed juris
diction over Behring Sea, and that Great Britain
had acquiesced in that claim; that the United
States had purchased the sea east of the boundary-
line, and that the action of the United States
was "a legitimate exercise of the powers of
sovereignty under the law of nations, with which
no nation can lawfully interfere.''
The "Dolphin" and other ships, British
vessels, were seized when fishing beyond the
3-mile limit in Behring Sea, and were condemned.
[182] H 26
Case of the " James G. Swan" 1892.
Handford, J., held that Russia had asserted J*^St^J^
authority over Behring Sea by assuming to voi. i, p. 121
transfer to the United States certain territory and
dominion with definite boundaries, including a
Jarge part of Behring Sea, and that the United
States, by the ratification of the Treaty of Cession,
acquired a Claim of right to exercise authority
and sovereignty therein.
The schooner was condemned.
The decisions of the United States' Courts in
the condemnation of other vessels proceed on the
same principles.
Either they were wrong in point of construction, or the Statutes upon which they were
founded were ultra vires as against foreigners.
In neither case do they furnish any justification
for the action of the United States.
w
The foregoing facts and arguments, it is submitted, conclusively establish that the following
answers should be given to the first four
questions in Article VI of the Treaty of Arbitration.
To Question 1.—That Russia exercised no
exclusive jurisdiction in Behring Sea prior to
1867; that, in 1821 only, Russia asserted exclusive
jurisdiction over a part of Behring Sea along
its coasts, but that she withdrew the assertion,
and never afterwards asserted or exercised such
jurisdiction.
That Russia exercised no exclusive rights in
the seal fisheries in Behring Sea prior to 1867;
that in 1821 only, Russia claimed exclusive
rights, as included in her claim of jurisdiction
extending to 100 miles from the coast, but
that she withdrew the assertion, and never
afterwards asserted or exercised such rights.
The only exclusive right which Russia subsequently exercised was the right incidental to
her territorial ownership.
To Question 2.—That Great Britain neither
recognized nor conceded any claims of Russia of
jurisdiction as to the seal fisheries, i.e., either
(a) of exclusive jurisdiction in Behring Sea, or
(6) exclusive rights in the fisheries in Behring
Sea, save as already mentioned.
Conclusions established by foregoing
argument.
tammmt&asBmtwmnKirmmtir*
'/mMS3B883RM 97
To Question 3.—That Behring Sea was included
in " Pacific Ocean " in the Treaty of 1825.
That Russia neither held nor exclusively exer-
cised any rights in Behring Sea after the Treaty
of 1825, save only such territorial rights as were
allowed to her by international law.
To Question 4.—That no rights as to jurisdiction or 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, passed to the United States
under that Treaty, except such as were incidental
to the islands and other territory ceded.
PART II.
Argument addressed to the 5th Question for Decision
under Article VI of the Treaty of Arbitration,
viz.: Has the United States any Right of Protection or Property in the Fur-seals?
Propositions maintained in Part II of the Argument
of Great Britain.
1. That seals are animals feres natures.
2. That the only property in animals feres natural:
known to the law is dependent on possession.
3. That this law is common both to Great
Britain and the United States.
4. That the owner of land has the exclusive
right to take possession of them while they are
on his land; but that right is lost when they
leave his land; and when they are on the high
sea all alike have the right to take possession of
them.
5. That while on the Pribyloff Islands, neither
the United States nor their lessees exercise their
right to take possession of the seals other than
of those actually killed.
And that when the seals leave the Pribyloff
Islands and take to the high seas, all exclusive
right of the United States is at an end, and
all alike have the right to take possession of
them.
0. That no right of protection of the seals
in Behring Sea or in any other part of the Pacific
exists. 28
7. That the claim of a Government to protect
animals, which are not their property, on the high
sea, and thereby to interfere with the exercise of
the rights of fishing which other nations possess,
cannot be supported by any known principles of
law.
8. That no analogy exists between the rights
claimed by the United States and those claimed
and exercised by other nations on the high seas,
whether as regards fishing laws or otherwise, and
that the United States cannot derive any warrant
for the right claimed from such fishery or other
laws.
The fur-seal is not only a marine animal, but British Counter-
pelagic in habit, spending most of its time at       'p*
large in the open ocean.    It is migratory in its
habit, and in the course of the year traverses a
great part of the North Pacific Ocean.
The time in each year during which various
classes of fur-seals (or some considerable portion
of them) remain on or about the breeding-
islands for purposes of reproduction, is from
three to five and a-half months. But individual
seals (with the exception of the old bulls)
frequent the adjacent waters for much of the
time of their resort to the islands, and many
young males and virgin females probably do not
land at all. The average length of stay ashore
of the seals is about one-third of the year.
The food of the fur-seal is entirely derived Ibid., p. ioi.
from the sea.
The expression " home" or " sole home," ibid,
applied to the Pribyloff Islands in connection
with the fur-seals found in the eastern part of
the Pacific, is inadmissible, even on the assumption that all are born there. A migratory animal,
cannot be said to be " at home " only when in
its breeding area. The- home of any species
is the area within, which it habitually lives-
Animals may have winter as well as summer
homes.
The principal " winter home " of the fur-seals
of the eastern part of the North Pacific is the
part of the ocean lying off the coast of British
Columbia; and there enormous quantities of
fish, which would otherwise be available for the
support of the inhabitants, are consumed by the
seals.
p. 142.
-*mvn 29
The principal " winter home " of the fur-seals
of the western part of the North Pacific, is,
similarly, in the vicinity of the Japanese coasts.
But seals in smaller numbers are to be found in
all parts of the North Pacific.
British Counter-
Case, p. 142.
In the summer months, most of the seals go
northwards for breeding purposes. Some go to the
Commander Islands, others to the Kurile Islands
and Robben Island, others to the Pribyloff
Islands.
No special bodies of the seals can be said to
resort entirely and invariably to one or other of
these groups of islands.
Intermingling occurs betweerrthe seals of the
North Pacific generally, both to the north and to
the south of the Aleutian Islands.
The allegation that the identity of individual
seals can be established when at sea cannot
seriously be advanced.
Ibid v 136. Experiments and observation further show that
seals born on one of the Pribyloff Islands often
land in another year on the other island, and that
the relative numbers of seals on the two islands
varies from year to rear.
The tendency of the slaughter carried on upon
the Pribyloff Islands is to drive the seals away
from these islands, and many other islands are
available as breeding-places.
Ibid., p. 141.
The fact of the intermingling of the seals of
both sides of the North Pacific, likewise shows
that not all the seals found in the eastern part
of that ocean can have been born on the Pribyloff
Islands.
Ibid., p. 119. The expression "Alaskan herd" is simply a
fanciful creation, supposed to lend, by the use of
the term "herd," some colour to the United
States' contention of right of property and protection.
Ibid.,
The term " herd " is applicable to seals (if at
all) only when on the islands, and then only to
each rookery separately, or to bodies of seals
driven together.
No distinction, as between the fur-seals resorting to the two sides of the North Pacific, has
heretofore been known to naturalists.
[182] I 30
The alleged distinction recently advanced on
the part of the United States is based on the
classing of skins by fur-dealers, but such classing,
and the differences of price resulting, are no
evidence of difference of kind in the fur-seal or
in other animals.
The criteria employed by fur-dealers in classing
the skins, though important in the trade, are in
themselves slight and difficult of definition. In
the particular case of fur-seal skins from the
Pribyloff and Commander Islands, experienced
dealers actually observe a large percentage of
skins from each source which would be classed,
according to the criteria they employ, as coming
from the other.
Though fur-seals are to a certain degree con- British Counter-
trollable when on land, this results from their Case, p. ill.
helplessness while there, and such control has
nothing to do with domestication.
It is impracticable so to control the seals as to
prevent them from going to the sea whenever
they desire to do so, and, were it possible so to
do, the seals would perish.
"While the seals are on the Pribyloff Islands,
they are left entirely to their natural inclinations
both as to leaving and returning to the islands.
They retain there all their characteristics of
animals feres natures.
They are unused to, and incapable of, any but
siow and laboured movement on land, and are
therefore easily surrounded and driven to the
killing-grounds for slaughter.
Such control as is exercised in  driving and ibid
killing, amounts to no more than preventing those
which are selected for killing from escaping.
The seals dread the approach of man, and
endeavour to flee from him, even when collected
in great numbers ashore; though it is probable
that, when their breeding-places were first
visited, ignorance caused them to be fearless.
The result of this contact with man has therefore been the opposite of that implied by domestication.
During the greater part of the year, the seals
are wholly removed from the cognizance of
persons on the Pribyloff Islands; and till very
lately their winter haunts were not even known.
All ideas attached to the word " domestic " are
therefore wanting in the case of fur-seals.    Man
112.
t-ft'wt> ijiM i.i— M&mr.wmr*mm 31
does not provide their food or in any way assist
them to obtain it; his care is at most of a
negative kind, and consists in the avoidance of
acts which would tend to drive them wholly
away from the breeding-islands. They would not
suffer, but, on the contrary, would profit, by his
departure from these islands.
No   scientific authority can   1
>e adduced  in
support o
JL     tn
contention that the seal is other
than a wild animal; and it is believed that no
opinion from any source which is recognized as
entitled to weight can be quoted to such an
effect.
Property in wild animals dependent
on possession.
Statement of the Law of the United States and
Great Britain as to Property in Animals " Fere;
Natures."
The common law in force both in America
and England as to animals feres natures is identical.
This law recognizes no property in animals
feres natures until possession. Property, while
the animals are alive, remains only so long
as this possession lasts; when this possession is
lost the property is lost. The law considers that
they are then wild animals at large, and that
the rights of capture revert to all alike.
The owner of land has what is sometimes
Called a qualified property in wild animals on the
land, but this is no more than the exclusive
right to take possession while they are there, and
when they leave the land that exclusive right is
gone.
The   following   passage   is   taken
from
the.
treatise of the well-known authors, Pollock and
"Wright, on "Possession in the Common Law,"
p. 231 :—
". . . . Trespass or theft cannot at common law be
committed of living animals fercc natures unless they are
tame or confined. They may be in the park or pond of a
person who has the exclusive right to take them, but they
are not in Ms possession unless they are either so confined,
or so powerless by reason of immaturity that they can be
taken at pleasure with certainty. "
Examples of taking possession.
The following examples from decided cases
illustrate the nature of possession.
Young v. Hitchens  (6 Q.B. 606), fish only lit wit
partly in a seine-net were held not to be in
possession.
B, v. RevuPothadu (Ind. L.R. 5 Madras 390),
fish in irrigation tanks in India were held not to
be in possession.
The law does not give to the owners of land
this qualified property as to wild animals on
their land by reason of any care, or feeding, of
the wild animals, or management which falls
short of reducing them into possession: it is
rested 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 exclusive right to take possession may be
violated; but as the right comes to an end when
the animals leave the land in respect of which
the right arises, such violation can occur only
while the animals are on the land, as by a
trespasser taking possession of them.
Such a violation is committed by raiders on the
islands, and the property in the seals taken by
them is in the United States.
With reference to the cases put by Mr. Phelps
and Mr. Blaine of killing fish by scattering
poison in the sea, destroying them by dynamite,
Season for recognition of exclusive
right.
Violation of the right.
Baiding.
Cases put by the United States.
United States'
Case, Appendix,
vol. i, pp. 202,
and placing dangerous obstructions and derelicts 287.
in the sea to injure commerce or fisheries, it is
denied that they present anv analogy to the case
now under discussion, which is simply that of
fishing by lawful methods.
All persons alike possess the right of fishing T
on the high sea, and such fishing, even though
it diminish the catch of another, is in all
respects analogous to the case of rival traders.
There is no principle of law in the United
States or Great Britain which prohibits rival
trading, or gives redress to that one of the traders
who may suffer loss in his trade by bis rival's
exertions.
The exercise of the right to catch the seals on
the high sea is a rival trade to the exercise of
the right to catch the seals on land. This latter
right is cf the same character as the former: it
only differs by reason of its being exclusive while
the seals are on the land.
No act of malice towards the United States or
the lessees of the Pribyloffs has been, or could be,
alleged against the fishermen of Great Britain
whose vessels have been seized. The seals are
taken by them on the high sea for their profit,
bis is a question of rival trading
merelv.
Which the law permits.
~Ro malice alleged.
wmmr.amr*mm Principle of law applicable.
33
and in the exercise of their legal rights of fishing
possessed by them in common with all mankind.
The case therefore falls within the general
principle, that where loss results to one by the
lawful exercise of a right possessed by another,
no reparation can be obtained by law.
It is, therefore, submitted that any rights
which the United States possess are not violated
by the acts of fishermen of other nations on the
high sea; and that there is no principle of law
known in Great Britain or the United States by
which the contention that there is such a violation
can be supported.
The distinction is fundamental.
Nature of United States' right to
seals while on Pribyloffs.
Their management is not taking
possession.
No possession except at time of
capture.
Nor on high sea.
Bights of others to capture.
Application of Principles of Property and Possession of Wild Animals to Seals.
The distinction between the right to take
possession of wild animals while they are on
the land, and the right of property in such
animals, is fundamental to the questions submitted to the Arbitrators.
When the foregoing principles as to property
in, and possession of animals feres natures, are
applied to the case of the seals, the United
States' contention of property in them, while
they are in the high sea, falls to the ground.
The United States or their lessees have only
an exclusive right to take possession of the seals
while they are on the islands, and this exclusive
right is lost when the seals go into the high seas.
They take possession only of such seals as they
kill.
The alleged management amounts to no more
than taking precautions that the seals shall not
be driven away, and to regulate the quota of
seals to be killed.
The conditions of seal life during the period
the seals are in Behring Sea, their excursions to
and from the islands into the high sea, and the
intermingling of seals from different islands,
clearly show that the conditions essential to
possession never exist, except at the moment of
capture.
While the seals are at sea, there is no power to
reproduce at will the physical relations to the
animals essential to possession.
The possession of the United  States is thus
.seen not to be established while the   seals  are
[182] K
&& i
34
at sea, and the rights of all to catch the animals
on the high sea remain, and were lawfully
exercised by the British vessels seized by the
United States.
The United States' claim to property, or to any
greater right than an exclusive right to take
possession while on the islands, is therefore, it is
submitted, without foundation; and the exclusive
right to take possession does not exist at sea.
The allegation in Mr. Phelps' letter, that the United States'
t   ^ i •     iC 1.1 I       £   ±x. i.- Case> Appendix,
seal fishery is     the property of the nation on vol X) p 287.
whose shores it is carried on," begs the question,
and is not consistent with any known principle
of law.
The British contention is that this absence of
precedent is fatal to the United States' claim,
which conflicts with the undoubted right of
individuals to fish for seals in the high sea, a
right which cannot be diminished or taken away
bv a Government to which the owners of the
right owe no allegiance.
Nor is the United States' contention in any
way advanced by an appeal to international law.
It is incorrect to say that 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.
It mav be observed that law so made would
i
not be international law at all. International
law is evolved by a more just as well as a more
tedious process. Its source is thus stated by
Kent :—
" The sole source of this law, the fountain from which  Kent's " Commen-
it flows, whether in its customary, conventional, or judi-       " "'
Claim of property unfounded.
Source and foundation of nternational
law.
cial-customary shape, is the consent of nations."
And again:—
national Law,"
2nd edition, by
Abdy, p. 4.
| In cases where the principal jurists agree, the pre- Ibid., p. 37.
sumption will be very greatly in favour of the solidity
of their maxims; and no civilized nation that does not
arrogantly set ordinary law and justice at defiance will
venture to disregard the uniform sense of the established
writers on international law."
In the case of Triquet v. Bath, Lord Mansfield
said:—
11 remember, in a case before Lord Talbot, of Buvot v. 3 Burr. 1478
Barbut, upon a motion to discharge   the defendant (who (at P- *481
was in execution for not performing a decree) ' because he
was agent of commerce, commissioned by the King of
gi 1   iw — a mMs^umttnam^f^-nifmfi
issgsssssmsw- •3D
Prussia, and received here as such;' the matter was very
elaborately argued at the bar, and a solemn deliberate
opinion given by the Court. . . . Lord Talbot declared a
clear opinion,' That the law of nations, in its full extent,
was part of the law of England.' . . . ' That the law of
nations was to be collected from the practice of different
nations and the authority of writers.' Accordingly, he
argued and determined from such instances, and the
authority of Grotius, Barbeyrae, Binkershoek, Wiquefort,
&c, there being no English writer of eminence upon the
subject.
11 was counsel in this case; and have' a full note of it.
" I remember, too, Lord Hardwicke's declaring his
opinion to the same effect; and denying that Lord Chief
Justice Holt ever had any doubt as to the law of nations
being part of the law of England, upon the occasion of the
arrest of the Russian Ambassador."*
This extract shows it to have been the opinion
of Lord Talbot, Lord Hardwicke, and Lord Mansfield, that international law is to be collected
from the practice of nations and the authority
of writers; and that they and Chief Justice
Holt were agreed in regarding it as part of the
law of England.
That branch of international law which deals
with the rights of nations, and which owes its
existence to the consent of nations, derives
its force from well known and recognized
principles of justice, while that branch of it
which deals with the rights of subjects of
different nations is based on principles common
to the laws of all nations.
International law does not nor can a Tribunal
administering this law create novel principles,
antagonistic to such legal principles, nor is there
any example which can warrant Mr. Phelps'
suggestion that this should be done.
The consent of nations would not be presumed'
in favour of such novel principles, if, as is
assumed above, a precedent is sought to be
created on the strength of them; and this
consent is essential to the admission of such
precedent.
It is, it is submitted, therefore clear that the
decision of the Arbitration Tribunal must conform to recognized principles of law.
No other method is sanctioned by the Treaty
of Arbitration. That Treaty distinguishes clearly
between the questions as to existing rights and
the question of future Regulations.    The former
* The italics in this passage are taken from the Report itself. m
are dealt with by Article VI, the latter by
Article VII. Further, Article V of the modus
vivendi makes the matter clear. By that Article
it is provided that " if the result of the Arbitration be to affirm the right of British sealers"
compensation shall be made "for abstaining
from the exercise of that right" during the
Arbitration; and " if the result shall be to deny
the right " compensation shall be made by Great
Britain.
"When, as in the present case, the rights and
duties of the respective parties would be determined by the principles of law common to the
two countries in the same way, it is submitted
that it is the duty of the Arbitration Tribunal
to follow the common principles of the two laws,
and no others.
A nation has no power to affect by its special
Statutes the fundamental rights of possession and
property, except with regard to its own subjects
and persons within its jurisdiction.
The United States' Statutes, under which the
British vessels were seized and condemned, as
those Statutes are now construed by the Courts of
the United States, would affect these fundamental
rights with regard to the subjects of other nations,
and therefore are quoad the subjects of other
nations ultra vires.
The legal principles involved being
common to laws of both parties to
dispute, their decision must conform
to them.
A State  can affect  only the rights
of its own subjects.
The Claim to Protection apart from Property.
The United States, assuming that their claim
to property fails, endeavour to establish an independent right to protect the seals on the high
seas.
This is a contention wholly devoid of legal
authority.
The right of a Government to protect the property of its subjects must rest on the same
principles as the rights of an individual.
Such rights as the United States may possess to
protect the seals are dependent on the existence
•of property in them.
The exclusive right to take possession of animals
on land, dealt with in the preceding argument,
does not carry with it a right to protect such
animals when they leave the land.
The right of all nations to fish on the high seas
is inconsistent with the claim of any nation to
Eight of a Government to protect.
Eight ratione soli  does  not  import
right off the land;
Which would conflict with rights of
others on hiab sea. Eight  to   protect apart  from  claim
of property.
No right of protection because fish
may be going to the islands.
protect fish or other free-swimming animals
there.
The contingency that fewer seals may resort to
the United States' islands in consequence of the
exercise of this right of fishing on the high sea
cannot affect that right, nor entitle the United
States to claim that it should be less freely
exercised.
The United States, however, insist that they
have such a right of protection of the seals, in
the open waters of the Pacific, independently of
the claim to a right of property in the seals.
The claim of right thus advanced is novel and
unprecedented. "*""
It is obvious that this question is in no way
connected with or dependent on the question of
concurrent regulations.
An abstract right of protection (such as is
here claimed), distinct from a right of property
in the animal sought to be protected, cannot
exist. It would involve the right to make the
protection respected, and therefore an interference with the equality and independence of
other nations upon the high seas; an interference which must take the concrete form of a
right of visit and search. That such rights do
not generally exist in time of peace, except in the
case of piracy, is too elementary a proposition to
need demonstration.   Pelagic sealing is not piracy.
Nor is the case altered by the fact that the
claim to protect is based on the assumption that
the fish may be proceeding to a place within the
dominions where an exclusive right to take
possession would arise. That no rights exist
until this exclusive right has come into being is
again too elementary a proposition to need.
Stephen's Black-    demonstrationi§i Por, as Blackstone says:—
7th Edit., vol. ii, J
P- *9- " All mankind had, by the original grant of the Creator,
a right to pursue and take any fish or inhabitant of the
waters."
Nor   on account  of interest in industry.
United States'
Case, p. 299.
Nor except as against nationals.
That there is no right of protection at sea even
when such qualified property arises on land has
already been demonstrated.
The contention basing the right of protection
on the ground of an interest, an industry, and a
commerce cannot be maintained. It must depend
on the question whether property has been esta«
blished or not.
The only right of protection of fish and other
free-swimming animals in the high seas which
[1S2J L S8
II!
life
■f
can be exercised by any State (apart from Con,
vention) is as against its own nationals. It
may be in the interests of commerce and the
fishing industry of the nation that all its fishermen
alike should be made to respect a close time, even
for migratory fishes, and even in the deep sea.
Ii
A i
i a right to  legislate for its  own
subjects on the high seas.
It may be admitted further that it is not
necessary that this restriction on national fishermen should be limited to the high seas adjoining
the territorial waters of the State. The protection of the Greenland fisheries, situated many
miles from the shores of the States which have
legislated in respect of it, is an instance in point.
But special attention is directed to the condition
precedent to such legislation. By the legislation
of Great Britain the Queen is empowered to put
the Act in force against her own fishermen
" when she is satisfied that other nations interested
in these fisheries have put similar Acts in force
against their subjects." Such legislation rests,
therefore, on an agreement between the nations
interested, which may be expressed in a Convention, or may be tacitly understood.
Such legislation Great Britain is willing to
pass in respect of the seals in Behring Sea; but
one essential condition on which Her Majesty's
.Government insist is,' that the other nations
interested should pass similar laws.
On the subject of Conventions and consequent
legislation, on which stress is laid in the United
States' Case, one further point alone need be
mentioned at this stage of the Argument. The
same power which a State has over its nationals
on the high sea enables it to delegate the
enforcement of the agreed regulations to the
other Contracting Party.
Beyond this, it is submitted, the legislative
powers of a State cannot go ; the limitations
on the powers here inKcated depend entirely on
constitutional law.
No warrant for any larger power, such as is
claimed by the United States, can be found in
any known principle of international law.
As to the reference to the " Laws of Natural
History " there is no known code of such laws,
and as to the " common interests of mankind "
these must be tested by, and dealt with upon,
legal principles.
The    same   argument     affords   a    complete
Nationals on high sea may be bound
by legislation.
Instance of such legislation.
Conventions.
No practice here shown to warrant
the right of protection claimed.
/M^^rtrtnHfwn^i 89
the   right   of
Claim to protection without property
fails.
answer to the suggestion, that
protection on the high seas against all comers
depends on the practice of nations. If the United
States had shown that all nations claimed to
exercise such a right of protection as is claimed
O X
by the United States, or even that a large proportion of the nations made such a claim, the
argument that the right had passed, or was
passing, into the law of nations might have
some force; but the examination of the laws
cited by the United States, to which this Argument will next proceed, shows that the position
taken up by the United States on this point
is absolutely untenable. ~
Her Majesty's Government, therefore, submit
that the United States' claim to protect the
seals in the high seas, and beyond the territorial
waters, in so far as such claim is independent
of an alleged property in such seals, absolutely
fails.
It remains to be seen how far the practice of
nations supports the contention of the United
States in regard to the claim to protection or
property.
Eacts stated in United States'
Argument.
-Objects  of United States' argument
from laws of other nations.
United States
Case, p. 221.
Ibid., p. 2S1
Ibid., p. 237.
Deductions drawn from such laws.
United States' Argument from suggested Analogy of
Laws of other Nations Considered and Answered.
The claim of the United States to rest their Case
on the precedents of the laws of other nations
forms a distinct branch of their Case, and requires
to be specially considered.
Such laws are referred to, by the United States,-
for three objects:—
1. To endeavour to prove a uniform practice
of nations to protect seal life from destruction
by means of extra-territorial legislation.
2. To endeavour to show a uniform practice of
nations of extending the provisions of their
fishery laws beyond the 3-mile limit; and of
making these provisions applicable to foreigners.
3. To show that other examples of extraterritorial jurisdiction are to be found in the laws
of other nations.
The deductions desired to be drawn by the
United States from the examples^ited are :—
Prom 1. That the United States' law under
which British vessels have been seized is justified
by the laws of Ijffcher nations for the protection of
seals.
£0 II
I
1 «
II it
(r
'
4.0-
Prom 2. That this law is justified by analogy
to the fishery laws of other nations ; and
That the application of this law to foreigners
beyond the 3-mile limit is also justified by
example and analogy.
Prom 3. That the law, and more especially in
its application to foreigners beyond the 3-mile
XX o v
limit, is further justified by analogy of other
extra-territorial laws not dealing with fisheries.
It is proposed to demonstrate in the following
Argument that these premises are not well
founded, and that the position assumed by the
United States is untenable.
With regard to the argument from the practice
of other nations, or from analogy to the practice
of other nations, it is submitted that the following propositions can alone be maintained.
To warrant any exceptional departure from the
principles commonly accepted by all nations as
General   principles    on   which   any
exception must rest.
part of
+1
ne law
of nations, it is essential that
there should be an agreement between all—
1. As to the sufficiency of the causes calling
for such exceptional legislation.
2. As to the means for remedying such causes,
i.e., as to the purport of such legislation.
This follows from the fundamental principle
on which the law of nations rests, viz., consent
of nations.
This subject has already been dealt with, but British Counter-
it   is   necessary  to  examine   categorically the      e' p" 86'
examples of extra-territorial legislation adduced
by the United States in order to show that they
utterly fail to support the argument for which
they are cited.
In support of the first proposition advanced
—that seal life is protected by extra-territorial
laws of other nations, the instances adduced by
United States are the following:—
British.
The Palkland Islands.
New Zealand.
Cape of Good Hope.
Canada.
Newfoundland.
Foreign.
Sweden.
Norway.
Bussia.
Germany.
Holland.
With   reference  to the
Greenland     or     Jan
May en fisheries.
mt^ym*wm#m*r*mm 41
Russia.
Uruguay.
Chile.
Argentine Republic.
Japan.
United States'
Case, Appendix,
vol. i, d. 435.
The Paleiland Islands.
The Act providing a close time for seals is No. 4 of
1881. It recites that the seal fishery of the islands was
once a source of profit to the colonists, but has been
exhausted by ^discriminate and wasteful fishing, and that
it is desirable to revive and protect this industry by the
establishment of a close time within the limits of this
Colony and its dependencies.
The Statute then enacts that a close time shall be
observed "within the limits of this Colony and its dependencies " from the 1st October to the 1st April.
United States'
Case, p. 221, and
Appendix, vol. ii,
p. 593.
The words italicized have a special meaning.
The powers of a Colonial Legislature are well
known; they have been defined by the Judicial
Committee of the Privy Council; and their hmita-
tion to the Colony and its territorial waters is
not only understood, but is enforced.
Yet the United States, instead of referring
to long-established principles, prefer to rest their
contention that the Colony would interpret this
Statute on different principles, and extend its
provisions to the high seas, on the deposition of
James W. Budington, an American master
mariner and sealer, in which he merely expresses
what his opinion and understanding of the matter
are.
There is no evidence to support the contention
that the Statute would, or could, be enforced on
the high sea.
Ibid., Appendix,
vol. i, p. 43G.
New Zealand.
The Statute No. 43 of 1878 for the protection of seals
establishes a close season; no reference is made to waters,
but the Governor may by order exclude any part of the
Colony from the provisions of the Statute*!,.
A "public fishery" is defined to be " any salt or fresh
waters in the Colony, or on the coasts or bays thereof;" it
includes artificial waters, and extends to the ground under
such water.
1182 j M 42
Ii S; i
Further, it is provided that offences against the Act
committed on the sea-coast or at sea within 1 marine
league of the coast are to be deemed as having been com-
mitted in a " public fishery."
"The Fisheries Conservation Act of 1884" applies
to certain waters of the Colony, the term "waters"
being defined to mean " any salt, fresh, or brackish waters
in the Colony, or on the coasts or bays thereof." The
Governor is enabled to make regulations for the protection
of fish, oysters, or seals.
By I The Amendment Act No. 27 of 1887 " the penalty
for violating the principal Act in its application to seals is
increased.
Vessels illegally taking seals are declared to be forfeited, and Her Majesty's vessels and officers are
empowered to seize such vessels " if found within the jurisdiction of the Government of the Colony of New Zealand."
The Act also allows vessels within the same jurisdiction
to be searched.
With regard to this legislation of New Zealand, United States'
. HIHHI i- Case,p. 223.
the United States Case contains an extraordinary
mis-statement:—
I The area designated as I the Colony' is taken to mean
the area specified in the Act [26 & 27 Vict., cap. 23, sec. 2]
creating the Colony, which defines its boundaries as
coincident with parallels 33° and 53° south latitude, and
162° east and 173° west longitude.
I The definition in the Act [The Fisheries Conservation
Act, 1884] of the term-' waters' indicates that it applies
to the entire area of the Colony, of which the southeastern corner is over 700 miles from the coast of New
Zealand, although a few smaller islands intervene."
In the Map in the United States' Case an area Ibid., Appendix,
coloured pink is shown, comprising the waters      'J' p* 4o7*
between the limits of latitude and longitude, to
found   the contention   that   these  waters   are
included within the colonial limits.
The words of the Imperial Statute 26 & 27
Vict., cap 23, sec. 2, above referred to, nevertheless, are clear and explicit, and are not capable
of being misunderstood.
The designation of the Colony in that Statute
is as follows :—
I The Colony of New Zealand shall, for the purposes of ibid., p. 436.
the said Act and for all other purposes whatever, be
deemed to comprise all territories, islands, and countries
lying letween 162° east longitude and 173° west longitude,
and between the 33rd and 53rd parallels of south latitude."
Only the territories, islands, and countries lying
between these limits of latitude and longitude are
thus seen to be included within the Colony.
/ IK-<<^3OTBMk?? H&
The argument here shown to be fallacious is
the same as that by which the United States claim
to treat Behring Sea as ceded territory.
Cape oe Good Hope.
The only Regulation affecting the question in
this Colony is a "Cape Government Notice"
of 1844, which is as follows:—
British Commissioners' Report,
p. 194.
' His Excellency the Governor, having been pleased to
decide that the seal island in Mossel Bay shall not be
granted on lease for the present, hereby prohibits all
persons from disturbing the seals on the said island, and
warns them from trespassing there after this notice on pain
of prosecution."
United States'
Case, p. 224.
United States'
Case, Appendix,
vol. ii, p. 576.
Ibid., p. 596.
The United States' evidence as to this Colony is
that of W. C. B. Stamp, who says that he " knows
X * v
nothing about it;" and of G. Comer, who
states that he would not dare to take seals in the
waters adiacent to the rookeries.
Canada.
The Fisheries Act, 1886, 49 Vict., cap. 95, prohibits
the killing of whales, seals, or porpoises with explosive
instruments, and during seal-fishing time from disturbing
or injuring any sedentary seal fishery, or from frightening
the shoals of seals coming into such fishery.
United States'
Case, p. 2'2 5.
The United States' statement in respect of this
Statute is that it prohibits all persons without
prescribing any marine limit; and the inference
drawn is that it applies to all persons on the high
seas, including foreigners.
This erroneous inference will be disposed of by
the consideration of the principles of construction
of Colonial Statutes to be presently dealt with. »
in
11
44
Newfoundland.
The  Seal Fishery Act, 1879, 42 Vict., cap. 1, estab- United States'
lished a close time for seals, and prohibits the killing of Iba.^ ^   en^jx>
" cats"   (immature  seals)   in   order more   efficiently to Vol. i, p. 442.
preserve this close time.    Steamers are not allowed to
leave port before a certain day.
The Seal Fishery Act, 1892, provides more stringent
regulations for the observance of the close time, and heavier
penalties for leaving port before a certain day.
Seals lolled in breach of the close time are not to be
brought into any port of the Colony or its dependencies
under a penalty of 4,000 dollars.
Steamers are forbidden from going on a second trip in
any one year, and if they shall engage at any time in
killing seals at any place within the jurisdiction of the
Supreme Court of Newfoundland after returning from the
first trip they shall be deemed to have started on a second
trip.
Prom these Statutes the following conclusions
are drawn in the United States' Case:—
1. That Great Britain and its dependencies do
not limit their Governmental protection to the
fur-seal; it is extended to all varieties of seals
wherever they resort to British territorial waters.
2. And they have thrown about them upon the
high seas the guardianship of British Statutes.
It is admitted that the principle of providing
a close time for seals has been adopted by British
legislation as essential to the preservation of seal
life.
It is denied that any country has the power to
enforce such close-time regulations beyond the
territorial waters against subjects of a foreign
nation, though it may do so as regards its own
subjects; and neither Great Britain nor her
Colonies have ever departed or attempted to
depart from this principle.
It is denied that the inferences drawn by the
United States in respect of the legislation of some
of the Colonies already considered are warranted.
The principles of English law show conclusively
that such inferences are unsound; it has already
been shown they are not in accordance with the
facts; and no evidence has been adduced by the
United States to support them.
In the case of the Falkland Islands, the
conditions recited in the preamble of the Statute
United States' conclusions from foregoing British Statutes.
United States'
Case, p. 225.
United States' inferences unwarranted.
"/ ifc*^BKj#*53HBIwjjt'^'fl 45
are identical with those which are alleged to
exist as to the seals in the North Pacific, and
the colonial legislation has been framed in strict
accordance with the principles contended for by
Great Britain.
Neither Great Britain nor her Colonies, under
circumstances of seal life precisely identical with
those of the seals in the North Pacific, have
attempted to establish a right of property in or
protection of the seals frequenting and breeding
on their shores when they leave the territorial
waters.
United States
Case, p. 227.
Legislation as to Greenland Fishery.
38 Vict., cap. 18.
Greenland or Jan Mayen Fisheries.
The second group of enactments of other
countries referred to in the United States' Case
are based upon Conventions; they therefore lend
no support to the United States' contention, that
they can by their independent action claim to
enforce such regulations against the subjects of
other nations in respect of fishing in the high
sea.
The enactments in question are those of Great
Britain, Sweden, Norway, Bussia, Germany, and
Holland. They all deal with the Jan Mayen seal
fisheries in the Atlantic east of Greenland; and
proceed on the principle here enunciated.
The first section of " The Great Britain Greenland Seal Fishery Act of 1875 " is shortly as
follows:—
I When it appears to Her Majesty in Council that the
foreign States whose ships or subjects are engaged in the
Jan Mayen fishery have made or will make with
respect to their own ships and subjects the like provisions
to those contained in this Act, it shall be lawful for Her
Majesty, by Order in Council, to direct that this Act shal
apply to the said seal fishery."
The legislation of the other countries is con-
ceived in a similar spirit, and was passed after negotiations between their respective Governments.
The necessary legislation having been provided,
the Queen, by Order in Council, dated the 28th
November, 1876, put the Act in force against her
own subjects.
[182] N Iff
lit!
11
ii
1
jitK.;:
,B"
46
The great difficulty of effectively maintaining Principles of Fishery Conventions.
& „ ,      .      .    i     I •  -, United States
a close time in distant fisheries in the high seas, Case> p 237.
and of protecting and regulating such fisheries,
except as against subjects, has in many instances
been dealt with by Conventions, as is stated in
the United States' Case.
These Conventions proceed on principles well
established.
These principles are:—
1. The determination of the limits of the
exclusive fisheries of the respective parties to
the Convention.
2. Except as expressly varied by agreement
the respective national jurisdictions are preserved
intact.
3. It is only by agreement that jurisdiction on
the high sea over its nationals is given by one
nation to another.
These principles do not advance the United
States' contention. The consent of other nations
is wanting to the exercise by the United States
of the exclusive control which it claims.
The existence of the Conventions demonstrates
their necessity f by such Conventions alone can
one nation presume to control the subjects of
another State upon the high seas.
They recognize the right of the subjects of
all the Contracting Parties alike to fish in the
high sea beyond the territorial waters, but for
their mutual benefit they subject the fishing to
regulations to be observed by the subjects of all
alike. The Conventions and the legislation giving
effect to them do not profess to impose these
regulations on the subjects of other countries not
parties to the Conventions, nor to prohibit them
in any way from fishing in the high seas, nor
could they do so.
Argument to be deduced from existence of Conventions.
Btjssia.
White Sea.
The Russian law dealing with the Ustinsk
sealing industry in the White Sea is set out in
the United States' Case.
Examination of Foreign Seal Legislation.
United States'
Appendix, vol. i,
p. 445.
mm
mn Jwm
wmmra British Case,
Appendix, vol. ii,
Part II, p. 22.
The industry is carried on in the Gulf of
Mesensk in the White Sea; the gulf is 53 miles
wide.
The principal provisions of the law are the
appointing certain days of departure to the
fisheries, and prohibiting the lighting of fires
to windward of the groups or hauling-grounds
of the seals.
The law is not directly or indirectly applied
to foreigners.
Further, Article 21 of the Russian Code of Prize
Law of 1869 limits the jurisdictional waters of
Russia to 3 miles from the coast.
British Case,
p. 116.
Ibid., Appendix,
vol. ii, Part II,
No. 16, pp. 19-20.
Behring Sea and Sea of Okhotsk.
This Article applies to the western shores of
Behring Sea, and the regulations published at
Yokohama in 1881, with respect more especially
to sealing off the Commander and Robben
Islands, are inconsistent with the United States'
contention as to Russia's claims to jurisdiction.
The prohibitions contained in these regulations were explained by M. de Giers in a letter
to Mr. Hoffmann.
This measure refers only to prohibited industries and
to the trade in contraband:—
" The restrictions which it establishes extend strictly to
the territorial waters of Russia only."
United States'
Case, p. 228,
Appendix, vol.
Caspian Sea.
The fishing and sealing industries in the
Caspian Sea are also dealt with by law, which
expressly declares that the catching of fish and
lolling of seals in the .waters of the Caspian
included in the Russian Empire are free to all
who desire to engage in the same, except in
certain specified localities, under observance of
the established rules.   A close time is appointed.
The Caspian Sea is a land-locked sea included
within the territorial dominions of Russia and
Persia, and the regulations have no bearing on
the questions involved in the right of fishing in
Behring Sea. WAV
vm
48
Uruguay.
The  law of Uruguay establishes a close tima United States'
for seals on the Lobos and other islands on the ApSpee'n^X) gjg -h
coasts of Rio de la Plata, and in that part of the p. 449.
ocean adjacent to the Departments of Maldonado
and Rocha.
It is in no sense extra-territorial. British Counter-
,.,.,. ,       „ i •   j   Case, p. 90.
The provision prohibiting vessels ot any kind
from anchoring off the islands, and the construction of works that might frighten away the seals,
is territorial.
Wi
\m>
B
Chile.
The Ordinance of 1892 allows only Chileans ibid., p. 91
and foreigners domiciled in Chile to engage in
the pursuit on land or at sea of seals and otters
in the coasts, islands, and territorial waters of the
Republic.
Poreign vessels are prohibited from engaging
in this industry.
This Law is obviously not extra-territorial, but United States'
it is appealed to in support of the United States'       ' P* ~29
contention of a right of property and protection
on the high sea, to which it is  diametrically
opposed.
The principles on which the British contention British Connter-
is based are expressly laid down in the Chilean        'p* 91'
Code.
Argentine Republic.
The laws of the Republic are not set out in the
United States' Appendix. The statement in the
United States' Case is merely that protection is
given to the fur-seals resorting to the coasts; it
is not stated that the regulations are extraterritorial, or that they apply to foreigners.
ISJIii
Japan.
Japanese law deals with hunting and killing United States'
seals and sea-otter in the Hokkaido,  i.e., Yezo, (Tase' K 229\
' '  Appendix, vol.
and certain  islands to the north belonging to p- 449.
Japan.
mmmmr
'/rs^ssasRsswjpsse British
County
Case, p.
93.
Conclusion
from foreign
laws.
49
The law is not extra-territorial, and the
Japanese Government have stated that they
consider that there are no means of checking
foreign fishermen outside the line of territorial
limits fixed by international law.
None of the countries above specified profess
to control the killing of seals by extra-territorial
provisions, or by interfering with foreigners on
the high seas, or in any other way than in
accordance with the principles already established; nor do they profess to claim a property
in or a right of protection of seals in the
high sea.
The first contention of the United States, that
seal life is protected by extra-territorial laws of
other countries applicable to foreigners, is therefore shown to be without foundation.
Examination of second contention of
the United States as to laws of
other nations.
A further contention of the United States is
that, not seal fisheries only, but other fisheries,
are protected by extra-territorial laws of other
nations, and that they are extended to foreigners.
The contention is based on the following
examples :—
British.
Irish oyster fisheries.
Scotch herring fisheries.
Ceylon pearl fisheries.
Queensland and West Australian   pearl
fisheries.
Examination of British Fishery Legislation.
.Foreign.
Prance.
Algerian coral fisheries.
Italian coral fisheries.
Norwegian whale fisheries.
Colombian pearl fisheries.
Mexican pearl fisheries.
Prom these examples, an inference is attempted
to be drawn that the United States are warranted
in demanding from other nations acquiescence
in their claim that their legislation for Alaska
should apply to the seal fishery in Behring Sea.
The contention that British fishery legislation
is extra-territorial, or, if extra-territorial, that it
extends to foreigners, remain to be considered.
fl82] 0 50
It is later   pointed  out that   considerations (Porf, p. 59.)
apply to the case of oyster, pearl, and coral
fisheries, which have no application to the case
of free swimming fish or animals.
I
1%
■i i ■■■'■ f ■
» »'
Irish Oyster Fisheries.
The law dealing? with the oyster fishers on the
coast of Ireland is shortly as follows:—
The Statute permits the Irish Fishery Commissioners to regulate, by bye-laws, oyster
dredging on banks 20 miles to seaward of a
certain line drawn between two headlands on the
east coast of Ireland.
Within this line the extreme depth of indentation is not more than 5 miles.
The Act provides that the bye-laws are to
apply equally to all boats and persons on whom
they may be binding; but they are not to come
into operation until an Order in Council so
directs.
The Order in Council is to be binding on all
British sea-fishing boats, and on any other sea-
fishing boats specified in the Orders.
The facts which have occurred since the passing of the Statute are as follows :—
The Commissioners have made a bye-law
appointing a close time.
The bye-law was put in force by Order in
Council of the 29th April, 1869.
The Order recited the power given to the
Queen by the Act to specify other besides British
boats to which the bye-law was to apply.
No other boats were so specified.
The law is therefore expressly limited to
British boats within the 20 miles. It cannot by
the terms of the Act itself apply to any foreign
boats.
It would be contrary to the principles on which
British legislation invariably proceeds that bye-
laws should apply to foreign boats outside the
3-mile limit, unless power to enforce such a bye-
law against the boats of any nation had been
acquired by Treaty.
The provision was inserted in the Act to
provide for the case of any such Treaty being
entered into.
Thereafter, without such enabling provision in
the Act, the Queen would possess no power to
31 and 82 Vict.,
cap. 45, sec. 67.
/#^<*<BK**^SSHIw|^>*P 51
United States'
Case, p. 232.
bringing
toreierners
make an Order in Council
within the Act.
The statement made in the United States' Case
is therefore inaccurate.
Scotch Herring Fisheries.
Ibid., p. 233.
{Post, p. 56.)
By the Act of 1887, 52 & 53 Vict., cap. 23, a
close time is provided, and trawling is prohibited
within the north-eastern indentation of the coast
of Scotland: the line of limit is drawn from
Duncansby Head, in Caithness, to Battray Boint,
in Aberdeenshire, a distance of 80 miles.
Benalties are imposed on any person infringing
the provisions of the Act.
Stress is laid in the United States' Case on
the words " any person;" and the statement is
made that " the Act is not confined in its operations to British subjects."
This statement is at variance with the principles
of English legislation and the practice of the
English Courts in interpreting Statutes.
" Any person" is a term commonly used in
English Statutes dealing with offences, and it is
invariably applied to such persons only as owe a
duty of obedience to the British Barliament.
Ceylon Bearl Fisheries.
United States'
Case, p. 253.
Appendix, vol. i,
p. 461.
British Counter-
Case, pp. 93, 94.
(Post, p. 59.)
L. R., 2nd Ex.
D. 63.
The pearl fisheries on the banks of Ceylon,
which extend from 6 to 21 miles from the coast,
are subject to the Colonial Act of 1811, which
authorizes the seizure and condemnation of any
boat found within the limits of the pearl banks,
or hovering near them.
These pearl fisheries have been treated from
time immemorial by the successive rulers of the
island as subjects of property and jurisdiction,
and have been so regarded with the acquiescence
of all other nations.
The principles governing the occupation of
such pearl fisheries will be dealt with at a
later stage of this Argument; for the present
it is sufficient to indicate the proposition which
Great Britain will maintain by a quotation from
Chief Justice Cockburn, in Beg. v. Keyn:— 52
" Where the sea, or the bed on which it rests, can be
physically occupied permanently, it may be made subject
to occupation in the same manner as unoccupied territory."
The special application of  this principle to "Droit desGens,"
the Cevlon fisheries was thus treated by Vattel:— *>aec- 287>
" Who can doubt that the pearl fisheries of Bahrien and
Ceylon may lawfully become property ?"
Australian Pearl Eisherles.
In the United States' Case reference is thus
made to the Australasian fishery laws :—
These Statutes extended the local regulations of the United States'
the two countries mentioned (Queensland and Western Case, p 234.
Australia) to defined areas of the open sea, of which the     ■; 4g7_4g9 ' '
most remote points are about 250 miles from the coast _     , „
i     $StS§§s      ™r.     -it. c BntiBh Counter-
of   Queensland, and about 600 miles from the coast of Qase p_ 94
Western Australia.
It suffices to point out that these Statutes are
in express terms confined to British ships and
boats attached to British ships.
Foreign Fishing Laws discussed.
Erance.
Examination of Foreign Fishery
Legislation,
By the Decree of the 10th May, 1862, certain fisheries United States'
are allowed to be temporarily suspended over an extent Case, p. 234.
of sea beyond the 3-mile limit if it is necessary for the British Counter-
preservation of the bed of the sea, or of a fishery com-    ase» P" 94-95.
posed   of   migratory fishes.     The   suspension   will   be
ordered on the request of the " prud'hommes des pScheurs,"
or, in their absence, of the " syndics des gens de mer."
There is no evidence that this law is applied
to foreigners.
On the contrary, there is evidence that, apart
from Conventions, France only legislates for
foreign fishermen within the 3-mile limit.
Article 1 of Law 1 of March 1888 lays
down:—
" Fishing by foreign vessels is forbidden in the territorial waters of France and Algeria within a limit which is
fixed at 3 marine miles to sea from low-water mark.' Algerian Coral Fisheries.
British Counter-
Case, p. 95.
The United States' Case proceeds:—
" Numerous laws have also been enacted by France to
protect and regulate the coral fisheries of Algeria, both as
to natives and foreigners, and the coral beds so regulated
extend at some points as far as 7 miles into the sea."
United States'
Case, Appendix,
vol. i, p. 46S.
(Post, p. 59.)
This statement is not verified by particulars or
evidence, but a Map is given in the United
States' Case, in which this 7-mile limit, is indicated.
The international law as to occupation of
coral beds will be dealt with presently; but it
may be noted that the analogy between a 7-mile
protection of a coral bed extending from low-
water mark under the sea, and protection of
seals on the high sea, is not apparent, either as
to the principles governing the two cases, or
the facts to which those principles should be
applied.
United States' Case,
p. 235.
Ibid., Appendix,
pp.470-481.
Italian Coral Fisheries.
The United States' Case states that—
" the coral beds surrounding the Island of Sardinia, and
lying off the south-west coast of Sicily, have been made
the subject of elaborate regulations by the Government of
Italy."
The remarks that have already been made as
to the Algerian coral fisheries equally apply to
the Italian reefs, and it is not suggested by the
United States that foreigners have been excluded.
British Counter-
Case, p. 96.
United States'
Case, p. 236.
Ibid., Appendix,
vol.
P
4^.
Norwegian Whale Fisheries.
The Norwegian law of 1880 for the protection
of whales provided a close time | on that part of
the sea on the coasts of Binmarken which the
King will define."
The Broclamation of the King, in 1881,
accordingly defined that part of the sea to be
1 Norwegian or Swedish mile (equal to 4< British
miles) from the coasts of Binmarken, to be
counted from the outermost islands or rocks
which are never covered by the sea.
[182] B 54
The whole of Varanger Fiord is included, the
distance between the headlands of the fiord
being 32 miles.
The Norwegian law is, therefore, expressly
limited to a small area of territorial sea.
The special protection in Varanger Fiord falls
within the principle of waters of the territory to (Post, p. 59.)
be hereafter explained.
fflinP
ISM
V+'.i
Colombian Bearl Fisheries.
The Law of Banama is thus stated in United United States'
States' Case.    It prohibits— {?■?' £ 23^-
L ibid., Appendix,
"the   use    of   diving-machines   for   the   colleetion   of vol. i, pp. 464-48o.
pearls within an area of the sea over 60 marine miles
in length, and extending outward about 30 marine miles
from the coasts."
There is no evidence to show "that the law in
question, if correctly stated, applies to foreigners.
Even if the bays shown on the United States'
Map are intended to be included in the application of the law as is suggested in the United
States' Case, the claim must be justified, if at
all, on the principle of waters of the territory
previously referred to and subsequently explained. (Post, p. 59.)
Mexican Bearl Fisheries.
The United States' Case states— United States*
Case, p. 236.
that along the coast of Lower California the pearl-beds ibid., Appendix
have been made the subject of special exclusive grants to v°l-1 P- 491.
private individuals, and have been divided for this purpose
into two belts:   the inner belt extending seaward for
3   miles   (5   kilom.), and   the  other belt for  6   miles
(10 kilom.).
Foreign vessels are admitted generally to the British Counter-
Mexican fisheries if they comply with the laws Case' p' 97'
and regulations.
The only claim made by Mexico is to regulate
all fishermen alike; but with regard to English
fishermen, attention is drawn to the provisions of
Article IV of the Treaty of 1888 between Great
Britain and Mexico, by which the two Bowers
agree to 3 miles as the limit of their territorial
waters. od
The United States' contention not
supported by foreign laws.
These are the only foreign laws set out by the
United States, and it may be assumed that there
are no laws of any other countries on which the
United States could rely to support their claim,
either directly or by analogy.
Her Majesty's Government submit that these
laws do not support the United States' contention.
Statement of legal principles referred
to in analysis of British and foreign
laws.
Examination op Legal Brinciples.
Throughout the foregoing discussion of the
legislation of various nations, certain principles of
law have been referred to, the full explanation of
which had necessarily to be postponed until the
examinations were completed.
For convenience these principles will nowbe collected, and will then be separately examined:—
(I.) That by the universal usage of nations, the
laws of any State have no extra-territorial
application to foreigners, even if they have such
application to subjects.
(II.) That Great Britain has incorporated this
principle into her own law by a long-established,
usage, and a series of decisions of her Courts;
and that the law of the United States is
identical.
(III.) That the British Colonies have no power
to legislate for foreigners beyond the colonial
limits.
(IV.) That international law has recognized
the right to acquire certain portions of the waters
of the sea and the soil under the sea, in bays, and
in waters between islands and the mainland.
(V.) That the analogy attempted to be traced
by the United States between the claims to protect
seals in Behring Sea, and the principles applicable
to coral reefs and pearl-beds, is unwarranted.
(VI.) And, finally, that there is no complete or
even partial consent of nations to any such
pretension as to property in, and protection of,
seals as set up by the United States.
Extra-territorial laws of a State have
no application to foreigners.
It is submitted that, as well by international
and constitutional law as by the common consent
and practice of nations, the laws of a State have
no application to foreigners beyond the territorial
limits of that State: and that if thev are declared. it
»
m-
WW
56
to have an extra-territorial application, it is
limited to subjects of that State who may fall
within its provisions.
The fundamental principle which governs the
application of laws is expressed in the maxim,
extra territorium jus dicenti impune non paretur.
No general propositions are clearer than these.
All persons are subject to the laws of a country
in which they are.
ISfo person is subject to the laws of a country
in which he is not.
The only exception is that subjects may be
legislated for by their own Legislature, even
though they are abroad, the enforcement of any
punishment being reserved till such time as they
return to their own country.
These principles are of equal force on the high
seas.
In ships on the high seas, no one is subject to
any jurisdiction but that of his own country, or of
the country to which the ship belongs. The laws
of other countries do not bind him, and he may
disregard them with impunity.
m
The laws of Great Britain have
no extra-territorial application to
foreigners.
L. E,,, 2 Ex. D.
63.
II.
It may be conclusively demonstrated that
Great Britain has incorporated this principle into
her municipal law by a long-established usage,
and by a series of decisions of her Courts.
In Beg. v. Keyn, Cockburn, C. J., said:—
I Where the language of a Statute is general, and may
include foreigners or not, the true canon of construction is
to assume that the Legislature has not so enacted as to
violate the rights of other nations."
This  is the answer to the  argument of the c„tt i   m
& m  bee also the case
United   States,   based   upon   the   words  § any of the | Zoll-
person " in British and Colonial Statutes. British'ctSe^-
The intimate connection between the national Case> P- "•
law and the international law is indicated in the
Judgments now quoted. Quotations from English Judgments
In the  case  of   " Le Louis,"  Lord   Stowell 2 Dodson, 239.
said:—
" Neither this British Act of Parliament nor any Commission founded on it can affect any right or interest of
foreigners unless they are founded on principles and
impose regulations that are consistent with the law of
nations; that is the only law. that Greac Britain can
apply to them, and the generality of any terms employed
in an Act of Parliament must be narrowed in construction
by a religious adherence thereto."
'SBH
izzmssmmsmw-ii 57
2 De Gex. and J.        So in Cope v. Doherty, Lord Justice Turner
614. • -,
said:—
" This is a British Act of Parliament, and it is not, I
think, to be presumed that the British Parliament could
intend to legislate as to the rights and liabilities? of
foreigners ; in order to warrant'such a conclusion, I think
that either the words of the Act ought to be express or the
context of it very clear."
4 H. L. Cases, 926.      So in Jeffreys v. Boosey, Baron Barke said:—
<: The legislature has no power over any persons except
its own subjects, that is, persons natural-born subjects, or
resident,or whilst they are within the limits of the kingdom;
the Legislature can impose no duties except on them, and
when legislating for the benefit of persons must prirred facie
be considered to mean the benefit of those who owe
obedience to our laws,, and whose interest the Legislature
is under a correlative obligation to protect."
L. R., 12 Ch. D.
500*.
L. R., 2 Ex. D.
63.
A remarkable application of this principle
occurred in the case of ex parte Blain re Sawers.
The question arose as to the application of the
English Bankruptcy Law to foreigners in
England; the definitions of acts of bankruptcy in
fke Statute include the commission of certain acts
" in England or elsewhere;" yet it was held by
the Court of Appeal that a foreigner in England,
although on general principles he was subject to
English law, could not be made bankrupt unless
he had committed an act of bankruptcy in
England. The words | or elsewhere " were held
not to apply to such a foreigner on the principles
above stated.
It is unnecessary further to cite authorities -y
one more quotation from Chief Justice Cockbuirn's
judgment in Beg. v. KeyOfWill suffice:—
■ The argument is that the language of the Statute
(of Henry VIII as to offences on the sea) being general in
its terms, it must be taken to have included foreigners as
well- as subjects. No doubt these words are large enough
to include foseigaers as well as subjects, but so they are
to include the entire ocean as well as the narrow seas ;
and it canfiot be supposed that anything so preposterous
was contemplated as to make foreigners liable to the law
of this country for offences committed on foreign ships alT
over the world."
It is submitted that the Statute under
whieti the British vessels were seized and condemned was either wrongly interpreted, or was
ultra vires.
[182] Q L - if-
68
III.
It may further be demonstrated that Great
Britain has not assumed to grant to her Colonies
any larger legislative power than she assumes
to possess herself ; and that the Colonial Legislatures cannot assume to themselves any power
of extra-territorial legislation for foreigners, as is
alleged in the United States' Case.
On this point, it would be sufficient to refer
to the words of " The Territorial Waters Jurisdiction Act, 1878," which defines the territorial
waters " adjacent to the United Kingdom or any
other part of Her Majesty's dominions " to extend
no further than 1 marine league from low-water
mark.
The Judicial Committee of the Brivy Council
have expressly declared the limits of the Colonial
Legislative Bower.
In Macleod v. Attorney-General for New South l.r. 1891, A.C.
Wales the colonial law as to bigamy was con- 445-
sidered.
The section enacted that—
I Whosoever being married marries another person
during the life of the former husband or wife, wheresoever
such second marriage takes place, shall be liable to penal
servitude for seven years."
Here were general words similar to the words
■ any person " so much relied on by the United
States.
The Judicial Committee nevertheless rejected
their general application.    They said:—
I The colony can have no such jurisdiction, and their
Lordships do not desire to attribute to the Colonial
Legislature an effort to enlarge their jurisdictio to such
an extent as would be inconsistent with the powers
committed to a colony, and indeed inconsistent with the
most familiar principles of international law.
» * * *
" The words ' Whosoever being married ' mean ' whosoever being married and who is amenable at the time of
the offence committed to the jurisdiction of the colony.'
* * * #
"'Wheresoever' may be read, 'Wheresoever in this
colony the offence is committed.' "
Colonies have no power of extra-territorial legislation for foreigners.
And so, both in case of colonial laws and in
the case of English laws, the words "any
person " mean " any person subject to the jurisdiction of the Legislature passing such laws,"
subject, that is, in accordance with the principles
Wt k<l^^>fwMl*lli^ ift
of   international and   constitutional   law   here
explained.
The contention of the United States that the
British colonial laws warrant, or afford some
analogy to, the Alaskan Seal Statute, is entirely
devoid of foundation.
How far international law recognizes
a right to possession of parts of the
bed of the sea.
IV.
It is next submitted—
That international law recognizes the right of
a State to acquire certain portions of the waters
of the sea and of the soil under-the sea, and to
include them within the territory of the State.
This affords a legitimate explanation of the
cases of foreign extra-territorial fishery laws
cited by the United States, quite apart from any
question whether they apply to foreigners or
not.
But it affords no justification for, nor are they
analogous to, the Alaskan Seal Statute, as is
contended by the United States.
The territory of the nation extends to low-
water mark; but certain portions of the sea may
be added to the dominion. For example, the sea
which lies inter fauces terres, and, in certain
exceptional cases, parts of the sea not lying
inter fauces terres.
The claim applies strictly to the soil under the
sea. Such claim may be legitimately made to
oyster beds, pearl fisheries, and coral reefs ; and,
in the same way, mines within the territory may
be worked out under the sea below low-water
mark.
Isolated portions of the high sea cannot be
taken by a nation unless the bed on which they
rest can be physically occupied in a manner'
analogous to the occupation of land.
These principles, though they explain legitimately all the examples of foreign laws dwelt
on bv the United States, show also that no
right to, or on, so vast an area of the high sea as
Behring Sea can be acquired. Nor has any such
claim ever been made.
Absence of analogy between protection of swimming animals and
of oyster and coral beds.
V.
It is further submitted that there is no analogy
between a claim to property in and to protect
swimming animals, such as fish and seals, and a
like claim in respect of oyster, pearl, or coral,
beds. 60
The exclusive fishery right recognized by international law within the territorial waters, or the
waters of the dominion, cannot at any rate be
placed higher than the right to take possession of
wild animals which the common law gives to the
owners of land on which the animals are.
If there were any land animals which by
nature were attached to the soil, the common law
right would be practically equivalent to a
right of property; and so as to oysters and
coral beds, when they are within the waters
over which international law recognizes an
exclusive fishery right, this right becomes
equivalent to a right of property because they
are attached to the soil.
But in animals which move from this area into
the high sea no such property can be acquired.
3*6'
VI.
Einally, it is submitted on this branch of the
United States' Argument, that there is not shown
to be any consent of nations to any proposition
which would warrant the United States' claim to
the right of protection or property, now for the
first time advanced.
No consent of nations to principle of
right claimed by United States.
The United States endeavour further to support their contention by a reference to certain
other extra-territorial laws not connected with
fisheries which have been passed by other
nations.   They state—
I Beference may also be made to the British Hovering  United States'
Acts, the St. Helena Act of 1815, and the Quarantine Case, p 237.
Act of 1825."
The I Hovering Acts."
These Acts have been passed to prevent
smuggling. They establish a practice which
has hitherto been acquiesced in both by Great
Britain and the United States, but they afford
no analogy, either in fact or in principle, to the
United States' claim in the present case.
In the first place, it will be observed that
the Hovering Laws do not extend the limit
of territorial waters, or assert any general
claim of dominion over an area of the sea
beyond the ordinary 3-mile limit,  such as is
ExaminationJ of United States' Argu
ment   based   on   the
Acts."
' Hovering
MaBsonmMWMKa 61
asserted by the United States over the waters
of Behring Sea east of a certain line. They,
simply claim to exercise a special jurisdiction
over certain vessels at a comparatively small
distance outside the usual limit, in order to prevent
or punish offences against the jurisdiction within
that limit, to which such vessels are accomplices.
And in the case of a British vessel which was
seized in 1890 by a Russian cruizer, on the,
ground that she was seal-fishing within Russian
territorial waters, Her Majesty's Government
were of opinion that even if the vessel at the
time of her seizure was herself outside the 3-mile
territorial limit, the fact that she was, by means
of her boats, carrying on fishing within Bussian
waters without the prescribed licence precluded
them from remonstrating against the seizure.
But no such conduct has been alleged against
the British vessels seized by the United States.
They were not hovering at sea, they were not
lying-to with intent to proceed to the territory,
or the territorial waters of the United States,
with intent to assist others in breaking the law
there. No such grounds have ever been alleged
for the seizure of the British vessels. The claim
of the United States is to include the right to
seize such vessels within their general jurisdiction
over Behring Sea, and the analogy of the
Hovering Laws cannot be adduced in support of
such a claim.
Moreover, even if such analogy existed, the
consent, or acquiescence, of other nations, which
exists in the case of the "Hovering Acts" (so
long as the iurisdiction is exercised within
reasonable limits), is wanting to the claim of
jurisdiction advanced in the present case by the
United States; and this absence of consent, or
acquiescence, is fatal to a claim which involves
the right of search and seizure on the high sea
outside territorial waters, and, consequently, a
violation or limitation of the freedom of the sea.
i The St. Helena Act, 1815."
Examination of United States' Argument based on the St. Helena
Act.
At the peace of 1815 it was determined by
Great Britain, in conjunction with the allied
Bowers, that St. Helena should be the place
allotted for the residence of the Emperor Napoleon
Bonaparte, under such regulations as might be
necessary for the perfect security of his person;
[182] B IP
j:| ;■;.'..-•!
ii
|vl'.".
II
62?
and it was resolved that,  for this purpose, all
ships whatever, British and foreign, excepting
only the East India Company's ships, should be
excluded from all approach to the island.   Notice American State
,. . i       ,i       -r. ..l- i    /-it-       /.  papers, voL iv,
was  accordingly  given by the   British Charge- £ \8t
d'Affaires at Washington to the United States'
Government on the 24th November, 1815, that a
Treaty of Commerce between Great Britain and
the United States, dated the 3rd July, 1815,
under Article III of which liberty of touching
for refreshment at the island was given to United
States' vessels, could not be carried out in this
respect; and that the ratifications of the Treaty
would be exchanged under the explicit declaration that United States' vessels could not be
allowed to touch at, or hold any communication
whatever with, the island, so long as it should
continue to be the residence of the Emperor.
The Treaty was ratified on this understanding.
The arrangement made for the general safety
received the consent, express or implied, of all
nations. If any analogy can be found between
that case and the one now under discussion, it
goes to show that the United States cannot
exclude other nations from the seal fishery
without a like consent.
I The Quarantine Act, 1825."
This Act depends upon the principles already
adverted to with regard to the Hovering Acts.
m\mw
mm
It is submitted that no one of these three Acts
affords any analogy or justification for a jurisdiction based merely on protection of trade, and
claimed and exercised many hundred miles in
open seas.
111!
Therefore, it is submitted that the assertion
that the practice of nations supports the United
States' contention in regard to their claim to
property in, and protection of, the seals in the
high sea, is without foundation.
If it is regarded as an assumption of jurisdiction on the high sea, it was entirely beyond the
power of the United States' Congress to pass
an Act applying   to foreigners;   for,  without
General conclusion on this branch of
the Case. C3
Answer to Question 5.
acquiescence of other nations, and without
example in the practice of other nations, it
infringes the rights of those nations upon the
high seas.
If, on the other hand, it is regarded as part
of a general jurisdiction exercised by the United
States over Behring Sea, it was also beyond the
power of the- United States' Congress to make
the Act applying to foreigners; for, without the
consent of other nations, and without example
in the practice of other nations, it extended the
territorial waters of the United States to a limit
hitherto unknown and unrecognized, and in so
doing it infringed the rights of other nations upon
the high seas.
Therefore, it is submitted that the foregoing
facts and arguments conclusively establish the
-answer to Question 5, raised by Article VI of the
Arbitration Treaty, in favour of Great Britain,
that is to say :—
To Question 5.—That the United States have no
right (a) of protection, or (b) of property, in the
seals frequenting the islands of the United States
in Behring Sea when they are found outside the
ordinary 3-mile limit.
BABT III.
BEGULATIONS.
It is now desired to formulate, on behalf of
Great Britain, the outline of the argument which
will be presented in connection with the question
of Begulations. As stated at p. 9 of the original
Case, Great Britain has throughout been
favourable to the adoption of general measures
for the control of the fur-seal fishery, provided that
such measures be equitable, and framed with due
regard to the common interest. It is, however,
essential that any Begulations should operate to
preserve the fur-seal industry for the enjoyment,
not of the United States alone, but of all those
who may lawfully engage in sealing. In this
connection, the attention of the Arbitrators is
.respectfully directed to the general considerations
summarized at p. 159 of the British Counter-
Case.
Though in the United States' Case (Conclusions) it is maintained that Begulations must
practically be such as to prevent pelagic sealing
everywhere, it is also stated that the United mm
6A
States are m the position of trustees of the seahng United States
.       ,   •        ,,      •■■ *    xi -ix    Case, p. 300,
interest, thus involving the idea of other rights
besides those of the United States.
The United States further, in their conclusions
to their Case, include in the second " Material
question " to be determined by Arbitrators:—
" Whether the United States and Great Britain ought Ibid., p. 299.
not in justice to each other, in sound policy for the
common interest of mankind, &c, 'to enter into such
reasonable arrangement by concurrent regulations or convention, ha which the participation of other Governments
may be properly invited,'" &c.
In the Counter-Case of the United States,
however, a more advanced position is taken. We
read:—
"The United States insist, as claimed in their Case, that United States'
,,      , Hffi , n ,• -i    , ,     ., •-, r   Counter-Case,
they have, upon the facts established by the evidence, such      ,,,,
a property and interest in the seal herd frequenting the
Islands of the United States in Bering Sea, and in the
industry, there maintained arising out of it, as entitles
them to protection and to be protected by the Award of
this Tribunal against all pelagic sealing, which is the subject
of controversy in this Case, and quite irrespective of any
right of property or of self-defence in respect of their
territorial interests, they claim to have clearly shown that
no regulations short of prohibition will be sufficient to
prevent the early destruction of the Alaskan seal herd."
Before considering the scope of the Begulations, the question as to the area of waters over
which they should extend requires notice. It
appears from certain passages in the United
States' Case and Counter-Case, that it will be
contended on behalf of the United States that
the Begulations should amount to a practical
prohibition of pelagic sealing in all waters to United States'
which seals from the Bribyloff Islands resort, e'
and should effectually prohibit and prevent the Counter-Case,
capture, anywhere upon the high seas, of any
seals from the Bribyloff Islands.
It is submitted that any such contention is
entirely beyond any claim ever advanced by the
United States at any stage of the controversy
prior to the delivery of their Case, and is contrary
to the agreement of the parties which was
embodied in the Treaty. That Treaty deals, and
deals only, with " questions which have arisen "
between the two Governments. In no part of the
discussion was it suggested that the rights of the
United States to limit the killing of seals extended
beyond Behring Sea.    On the contrary, when the
p. 121. United States*
Case, Appendix,
vol. i, p. 306.
Ibid., p 315.
65
British Government desired the assent of Bussia
to the modus vivendi proposed in the mouth of June
1891, it was pointed out by Mr. Wharton, in a
despatch to Sir Julian Bauncefote, dated the
4th of that month, that the contention between
the United States and Great Britain was limited
to that part of Behring Sea eastward of the line of
demarcation described in the Convention with
Bussia of the 30th March, 1867; that Bussia
had never asserted any rights in the waters
affecting the subject-matter of the contention,
and could not, therefore, be a necessary party to
the negotiations if they were not expanded; and
further, that the authority of the Bresident was
derived from the Statute of the United States,
and that no authority was conferred upon him
to prohibit or make penal the taking of seals in
the waters of Behring Sea westward of the line
referred to.
It is scarcely necessary to point out that such
language not only depends for its force upon an
assumed jurisdiction over an area of sea, but
is wholly inconsistent with the contention that
pelagic sealing in the parts of the Bacific Ocean
outside Behring Sea, or in those parts of Behring
Sea west of the line of demarcation, was the
subject of controversy between the parties.
Further, on the 11th June, 1891, Mr. Wharton,
in his letter to Sir J. Bauncefote, stated that the
Government of the United States, recognizing,
the fact that, full and adequate measures for the
protection of seal life should embrace the whole
of Behring Sea and portions of the North Bacific
Ocean, would have no hesitancy in agreeing, in
connection with Her Majesty's Government, to
the appointment of a Joint Commission to.
ascertain what permanent measures were necessary for the preservation of the seal species in
the waters referred to, such an agreement to be
signed simultaneously with the Convention for
arbitration, and to be without prejudice to the
questions to be submitted to the Arbitrators.
Later, viz., on the 8th March, 1892, Mr. Wharton wrote to Sir J. Bauncefote :—
Ibid., p. 356 a The United States claims an exclusive right to take
seals in a portion of the Behring Sea, while Her Majesty's
Government claims a common right to pursue and take
the seals in those waters outside a 3-mile limit. This
serious and protracted controversy, it has now been
happily agreed, shall be submitted to the determination
of a tribunal of arbitration, and the treaty only awaits
[182]
S
»TH 66
'Jm
the action of the American Senate. ... If the contention
of this Government is sustained by the Arbitrators, then
any killing of seals by the Canadian sealers during this
season in these waters is an injury to this Government in
its jurisdiction and property. . . .    The  United   States  United States'
, , j j.i     i r t, i  t „  Case, Appendix,
cannot be expected to suspend the defence, by such means voJ>.' _ jjgg^
as are within its power, of the property and jurisdictional
rights claimed by it, pending the arbitration."
And on the 22nd March, 1892, he again
writes:—
"For it must not be forgotten, that if Her Majesty's Ibid., p. 361.
Government proceeds during this sealing season upon the
basis of its contention as to the rights of the Canadian
sealers, no choice is left to this Government but to
proceed upon the basis of its confident contention, that
pelagic scaling in t/ie Behring Sea is an infraction of its
jurisdiction and property rights."
There is no known method whereby the seals
resorting to Behring Sea may be distinguished,
at any rate before capture. Upon no construction
of the Treaty could it be pretended that the
Tribunal of Arbitration is empowered to regulate
the pursuit of seals generally. To prohibit the
pursuit of certain specified fur-seals outside of
Behring Sea, or to make Begulations concerning
them, would be impracticable, and it is submitted
would be beyond the authority given to this
Tribunal.
Bassing from the question of the area of
waters over which the proposed Begulations
should extend, and assuming the Begulations to
apply to the whole, or some part of, the non-
territorial waters of Behring Sea, the contention
of the United States, so far as it can be gathered
from their Case, is that pelagic sealing must
be entirely prohibited.
It is submitted that any decision of the
Tribunal proMlfpmg pela||ic sealing would be
contrary to the terms of the Treaty.
Article VII contemplated the establishment of
Begulations as applicable to the pursuit of seals
outside territorial waters; and the prohibition of •
pelagic sealing is not authorized.
To contend that pelagic sealing should be
entirely prohibited would be, under cover of so-
called Begulations, to defeat the manifest intention of the parties.
The following argument is, therefore, based
upon the view that the Begulations should be
such as should be fair, both to the United States
as owners of the Bribyloff Islands, and to Great
W--?.j'i
mm 67
United States'
Case, Appendix,
vol. i, p. 284.
Britain as representing those who desire to engage
in the lawful industry of pelagic sealing, but who
at the same time are willing to be bound by such
Begulations as are necessary for proper protection and preservation of the fur-seal in, or
habitually resorting to, Behring Sea.
Burthermore, it is essential that the Begulations should be such as would be likely to secure
the adhesion of other Bowers, and would not
operate as an inducement to them to withhold their consent with the knowledge that
by so doing they would secure to themselves
greater advantages from the industry in question.
As appears from the British Counter-Case, and
from the Beport of the British Commissioners,
the main provisions which might be properly
embraced by Begulations are the maintenance
of a zone of protected waters round the breeding-
islands, the establishment of a close season, and
restriction as to the date in each year when
sealing-vessels should enter Behring Sea.
Having regard to the fact that each of these
proposals, when taken separately, is treated in
the United States' Case and Counter-Case as
being of no value, and that the proposals collectively appear to be considered as wholly insufficient, the way in which the question has been
dealt with by the United States in the correspondence prior to the Treaty of Arbitration is
worthy of consideration.
Up to the month of December 1890, suggestions of a more or less general character appear
from time to time in the correspondence to the
effect that international Begulations should be
established through the medium of a Convention,
to which all nations interested should be parties.
These suggestions led to no definite agreement,
and were succeeded by a proposal contained in
the following passage from a note of Mr. Blaine
to Sir Julian Bauncefote, under date the
17th December, 1890 :—
"The President will ask the Government of Great
Britain to agree to the distance of 20 marine leagues
within which no ship shall hover round the islands of
St. Paul and St. George from the 15th May to the loth
October of each year. This will prove an effective mode of
preserving the seal fisheries for the use of the civilized
world."
And in the same despatch there was formulated
a question, in the following words, on which the
rWBSH 68
MMv;
Tilth Article of the Treaty of Arbitration was
founded:—
" Sixth. If the determination of the foregoing questions United States'
,      \ Case, Appendix,
shall leave the subject in such position that the concur- voj_ j p> 286.
rence 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 hmits 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, and 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 season, and over what
waters it should extend."
To this proposal of Mr. Blaine's Lord
Salisbury replied in his despatch of the 21st
February, 1891, in which, dealing with the sixth
question, he observed :—
" The sixth question, which deals with the issues that Ibid. p. 294.
will arise in case the controversy should be decided in
favour of Great Britain, would perhaps more fitly form the
substance 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 preservation 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 States.'
Finally, in deference to   the objection thus Ibid., p. 319.
taken by Lord Salisbury,  Mr. Wharton, in  a
letter of the 25th June, 1892,  to Sir Julian
Bauncefote, proposed what now forms Article VII
of the Treaty.
It is therefore to be noted that the original
proposition, emanating from the Bresident of the
United States, viz., that the establishment of a
protective zone, within which the killing of seals
should be prohibited between certain specified
dates, was suggested as being an effective mode
of preserving the seal fisheries for the use of the
civilized world, and it is contended, on behalf of
the British Government, that further investiga-
tion and examination of the facts fully justify
the view that Begulations of this character, but
establishing a zone of smaller area, would suffice
so far as pelagic sealing is concerned. 69
Even assuming a point which is open to considerable doubt, viz., that some of the seals still,
suckling then* young travel to parts of Behring
Sea at considerable distances from the Bribyloff
Islands, by far the greater majority, if not the
whole, of such female seals will be found within
a zone of more moderate area.
It is established that the seals, whatever may
be the cause of their leaving the islands, do not
habitually or regularly go in search of food. Food-,
ample for their wants, is to be found in the
vicinity of the islands, but all the best informa-
tion points to the fact that they do not feed
during the main period of their sojourn on land.
In addition^ the prohibition of the killing of seals
x o
during July and August, within the protected
zone, would insure that the vast majority, if not
aU, of the female seals actually suckling their
young, would be free from capture by pelagic
sealing during such time as the pups are dependent upon them.
It is unnecessary to discuss in detail the minor
Begulations which have been suggested as to the
means of pelagic capture, and as to the due
authentication of all licensed sealing-vessels.
These are matters on which lengthened argument would be out of place here.
It is, however, obvious that the adoption of
such Begulations, and the enforcement of legislation in order to render them effective, does
involve the curtailment of rights which, upon
the hypothesis which forms the basis of this
argument, now belong to other nationals,
including British subjects.
The object of any Begulations 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.
That during a great portion of the year the
seals are feeding upon fish which are valuable
for the food of man upon the coasts of the
territory of Great Britain, and other nations,
cannot be denied.
That during other portions of the year they are
consuming fish that are swimming in the high
[182] T fflffrj
II
70
seas, in which all nations have an interest, is
conceded.
It would not be equitable that restrictions
upon the rights of other nations should be
demanded solely for the purpose of enhancing the
benefit to be derived by the United States from
their possession of the islands. The least that can
be suggested is that, concurrently with the establishment of such Begulations as are applicable to
pelagic sealing, and in order to induce other
nations, who are not parties to this Arbitration, to
concur in, and give effect to, any Begulations, a
reasonable limit to the slaughter of seals on the
breeding-islands and proper provisions for its
conduct should be made by the United States.
The Begulations for the islands which the
United States may be willing to make must, it is
submitted, have an important effect upon the
judgment of the Arbitrators as to what pelagic
Begulations would be reasonable or necessary,
and it is further submitted that it is within the
competence of this Tribunal to make the latter
Begulations dependent or conditional on the
former.
To apply restrictions to pelagic sealing, without
effective and concurrent Begulations being
enforced on the breeding haunts, would be as
unreasonable and useless as the institution of
restrictions over a coastal or estuary salmon
fishery, while the salmon on the spawning-beds
of the river were being taken without let or
hindrance.
It is contended on behalf of the United States
that the management of the islands in the past
had been properly controlled and conducted
with due regard to the protection of seal life.
Her Majesty's Government are unable to concur
in that view. For reasons that have been stated at
length in the Counter-Case, in reply to the contentions in the United States' Case, it is sub'
mitted that the excessive killing of seals on the
islands during a long series of years has con"
tributed largely to, and has been in all probability
the main cause of diminution in numbers. Be
this as it may, in view of the experience of the
past, the number of seals to be killed in each
year upon the Bribyloff Islands ought to be
limited, and the methods pursued there controlled, in accordance with the actual condition
of seal life, and subject to periodical review by
independent Government Agents.
kS
m
m" 71
Finally, it is submitted for the consideration of
the Tribunal that the imperfect knowledge even
now possessed as to the habits and conditions of,
seal life in many essential particulars makes it
important to consider how far it is safe to lay
down Begulations unlimited in duration until
wider experience of their operation has been
acquired.
BABT IV.
DAMAGES  AND  COMPENSATION.
Article VIII,
Treaty of
Arbitration.
United States'
Counter-Case,
p. 129.
Ibid...
130.
1. British Claim foe, Damages.
There remain for consideration the questions
of fact which are involved in the claims made
by the owners of British vessels for injuries
sustained by the seizure of their vessels, and by
such vessels being prevented by the action of the
Ox v
United States' cruizers from engaging in pelagic
sealing in Behring Sea.    The British Government agree with the Government of the United.
States that, as far as damages  are concerned,
no   question   of   amount   is  to  be   discussed
before the Tribunal of   Arbitration,  and   that
only  questions  of fact involved in the claim
are proper for consideration.     It is   admitted
in tiie CounterrCase on behalf of the United
States that the seizures and acts of interference
complained of took place outside the ordinary
territorial waters of the United States, that is to
say, outside the 3-mile limit; and, further, that
the   acts   of   seizure   and   interference   were
authorized   and   executed   under   and   by   the
authority of the United States' Government, for
the purpose of enforcing certain laws passed by
the United States.
Under these circumstances, assuming, as is
necessary for the purpose of the question now
under discussion, that the claim on behalf of the
Government of the United States to interfere
with the ships of other nations fishing in the
non-territorial waters of Behring Sea is un-,
founded, the responsible Government of the
United States have by force prevented the vessels
in question, and their owners, masters, and crew,
from engaging in a lawful occupation and
industry. 72.
The contention put forward at p. 133 of the
United States' Counter-Case is, that all the items
of claim there referred to, that is, "Loss of
estimated Catch," "Probable Catch," "Balance
of probable Catch," "Seasonable Earnings for
the months of October, November, and December," and 1 Loss of Profits," are in the nature of
prospective profits or speculative damages, and
are so uncertain as to form no legal or equitable
basis for finding facts upon which damages can
be predicated.
This view of the law has been rejected by the 5 C. P. D. 280.
English Courts.    In Phillips v. the London and
South-Western   Bailway   Company,   where   an
eminent   medical   practitioner   who   had   been
injured bv the negligence of a Bailway Company
J v O      O v J- v
was  awarded   16,000Z.  damages,  the  Court of
Appeal   held that the   jury had been rightly
xx 0        v O v
directed to take into account the loss of his
professional income of 5,000Z. a-year. And in
the "Argentine," the House of Lords held that 14 App. Cas. 519,
in awarding damages to a ship which had come
in collision with another, the fact that the ship
could not be repaired in time to fulfil a contract
for another voyage, and had lost earnings in
consequence, had been properly taken into account.   Lord Herschell said:—
ie loss of the use of a vessel and of the earnings
which would ordinarily he derived from its use during the
time it is under repair, and therefore not available for
trading purposes, is certainly damage which directly and
naturally flows from a collision."
He then proceeded to explain, what it is not
necessary here to consider, that the damages
were not limited to the time of actual- nonrepair, but that account might be taken of the
loss of a voyage previously contracted for, setting
off against such loss what the ship could have
earned by other means, after completion of the
repairs, during the time which such voyage would
have occupied.
After due regard has been paid to all considerations, such as the nature of the season, the
size and equipment of the vessels, and the amount
of the catch in previous seasons, an estimate can
be formed of the probable catch of each vessel
during the season in which their operations were
prevented or interfered with.
The loss of catch is due directly to the action
of the United States' Government, and the fact
■zf^mmrvmM'mimv&Gmmwmiim&r
'i9tt^^K^tet^BfSf$SSSt^ErtiS& 73
*' North America
No. 2 (1873),"
Part II, p. 253.
that the earnings or profits were prospective ia.
no  way affects the right of the claimants  to
v O
recover.
The refusal of the Geneva Arbitrators to award
damages to the United StaAes for the loss of
" prospective earnings % must be understood with
reference to the actual conditions of the case
before them. The ships in respect of which the
elaim was made had been destroyed. Chief
Justice Cockburn, who here was in agreement
with the rest of the Tribunal, says in his
reasons:—
" According to the decisions of the Supreme Court of the
United States, the only allowance which ought to he made
in respect of prospective catch is in the nature of interest
from the time of the destruction of the vessel."
The distinction is between prospective earnings
from a ship destroyed, and temporary interruption
in the employment of an existing ship.
With regard to the] allegations which are
brought forward at pp. 130 to 133 of the
United States' Counter-Case, that is to say,
that certain citizens of the United States were
interested, as mortgagees or otherwise, in
some of the vessels in question, Her Majesty's
Government do not admit either the truth of the
allegations, or that they are proper for consideration.
By 17 & 18 Vict., cap. 104, sec. 70, it is
enacted as follows:—
" A mortgagee shall not by reason of his mortgage be
deemed to be the owner of a ship or any share therein,
nor shall the mortgagee be deemed to have ceased to be
owner of such mortgaged ship or share, except in so far as
may be necessary for maMng such ship or share available
as a security for the mortgage debt."
The Tribunal will be asked to find that the
several heads or items of damage claimed are
correct, saving all questions of amount and
liability.
2. British Claim for Compensation.
By Article V of the modus vivendi of 1892 it is expressly agreed that, if the result of the arbitration
shall be to affirm the right of British sealers to take
seals in Behring Sea within the bounds claimed
by the United States, under its purchase from
Bussia, then compensation shall be made by the
[182]
U 74
fiR'J
IP
Pi
\m
United. States to Great Britain (for the use of
her subjects) for abstaining from the exercise of
that right during the pendency of the arbitration,
upon the basis of such regulated and limited
catch or catches as, in the opinion of the Arbitrators, might have been taken without an undue
diminution of the seal herds. The Article
further provides that the amount awarded shall
be just and equitable, and shall be promptly
paid.
Great Britain is entitled, under this Article, to
the award of a just and equitable sum by way
of compensation, to be ascertained by the Arbitrators on the above basis.
3. United States' Claim for Damages.
In the event of its being decided that British
sealers have no right to take seals within the
waters of Behring Sea, it will be contended by
Her Majesty's Government that the basis upon
which the amount of the United States' claims is
assessed in the Case of the United States is
untenable.
The whole of what is called in the United United States*
States' Case "the claim of the Government," as
distinguished from | the claim of the lessees," is
founded on the prohibition of sealing on the
islands imposed under the modus vivendi of 1891.
But no claim can be made in respect of the
consequences of fulfilling a contract voluntarily
entered into, unless by reason of some contract
provision, such as is contained in the modus
vivendi of 1892, but not in that of 1891. Her ibid., Appendix
Majesty's Government made it a condition of vo1-1 P- 363«
renewing the modus vivendi in 1892, that "the
Arbitrators should, in the event of a decision
adverse to the United States, assess the damages
which the prohibition of sealing " should have
caused. No such stipulation had been made by
either Government in 1891.
4. United States' Claim for Compensation.
By Article V of the modus vivendi of 1892, if
the result of the arbitration should be to deny
the right of. British sealers to take seals within
the specified waters, then compensation shall be
made by Great Britain to the United States (for
itself, its citizens, and lessees) for the Agreement
m<
9,ZZ*?5S3SHBBBBEg& i o
to limit the island catch to 7,500 a season, upon
the basis of the difference between this number
and such larger catch as in the opinion of the
Arbitrators might have been taken without an
undue diminution of " the seal herds."
In fixing the "lar!
?ei
mentioned in
British Case,
Appendix, vol. iii,
No. 2, 1891,
pp. 1, 3.
Senate, 51st Cong.
2nd Sess.,
Ex. Doc. No. 49,
pp. 11, 12.
Ibid., p. 13.
Ibid., pp. 6 and 9.
British Case,
Appendix, vol. iii.
'< United States'
No. 2 (1891),"
pp. 17, 21, 60.
Sir J. Pauncefote
to Mr. Blaine,
February 29, 1891
Marquis of Salisbury to Sir J.
Pauncefote,
March 18, 1892.
British Case,
Appendix, vol. iii;
§ United States'
No. 3 (1892),"
pp.155 and 159.
Sir J. Pauncefote
to Mr. Blaine,
February 29, 1892.
British Casp,
Appendix, vol. iii.
" United States'
No. 3 (1892),"
p. 1G1.
this Article, the following facts require consideration :—
The modus vivendi of 1891 was originally
assented to by Great Britain because it was
asserted on the part of the United States that the
diminution of seals had become so great as to
require some such immediate and drastic provision to prevent extermination.
During the sealing season of 1890, on the
Bribyloff Islands, Mr. Goff, the Government
Agent, stopped the killing of seals when only
21,857 had been killed, alleging that this was
absolutely necessary because of the paucity of
seals of suitable age for killing. The agent of
the North American Commercial Company thereupon lodged a protest against the curtailment of
the Company's privilege of killing.
In reporting on the sealing season of 1890,
Mr. Goff, the Government Agent on the islands,
and Mr. Lavender, Assistant Agent, both advised
the cessation of all killing for skins upon the
islands for several years. Mr. Elliott, in his letter
to Secretary Windom, summarizing and transmitting a detailed Beport made in pursuance of a
Special Act of Congress, makes a recommendation to the same effect, placing the period of
abstention from killing at seven years at least.
The result of the investigation of seal life made
by the British Commissioners in 1891 was,
however, such as to convince Her Majesty's
Government that the very stringent measures of
the modus vivendi of 1891 need not, in the
interests of the sealing industries, be repeated
in 1892.
Consequently, when a new modus vivendi was
pressed for by the United States, it was proposed by Her Majesty's Government that a
zone of protection, not exceeding 30 miles,
should be extended about the Bribyloff Islands,
while the killing upon these islands should be
restricted to a maximum number of 30,000.
The United States, however, promptly and
decisively pronounced this proposal for a modus
vivendi in 1892, to be, from their point of view,
"so obviously inadequate, and so impossible of execution, that this Government cannot entertain it."
The British Government eventually consented Acting Secretary
... .iTT £      r. j -j-   Wharton to Sir J.
to the establishment of  a new modus mvendx, Pauncefote
generally similar to that of 1891, but with the Ma"h 8,1892.
condition as to compensation above mentioned.
It is submitted that, in fixing the dimensions
of the catch which might have been made upon
the Bribyloff Islands, for the purposes of compensation, the United States cannot now rely, United States'
as they seek to do, on the data which they
explicitly contradicted in the spring of 1892.
il
Mm-
p
m
_msm^sssi
'/ fc^RReM^^tnf ": (   W   )
ABBENDIX TO  ABGUMENT.
No. 1.
Criticism of Part Second of the Counter-
Case of the United States, which is
entitled, ''Reply of the United States to
that portion of the Case of Great Britain
contained in the Report of the British
Commissioners.''
IT is observed with regret, that throughout the
second portion of the Counter-Case of the United
States, reflections on the impartiality, competence,
and even on the honesty of the British Commissioners are repeatedly made. It is, for instance,
many times asserted that the British Commissioners endeavour to support various preconceived
opinions or "positions'' by evidence selected for
the purpose. But a reference to the Commissioners' Beport will show that no- such course
was adopted, and that various points upon which
the available evidence was found to be inconclusive have been so characterized by them.
It is only necessary to draw attention to the
fact, that at a date as late as November 1890,
the Canadian Government, relying on evidence
contained in official Beports of the United States'
Government, denied any decrease in the seals
met with upon the Bribyloff Islands; while one
of the main conclusions of the Commissioners
proved to be in direct opposition to this contention,
and was to the effect that a nearly continuous
decrease had occurred during the entire period of
the control of these islands by the United States.
There is surely nothing remarkable in the
circumstance that some of the conclusions arrived
at by the British Commissioners should agree with
previously advanced contentions of the British
and Canadian Governments. It might, on the
other hand, be characterized as remarkable, that
for the purposes of the present submission to
[182] X 1
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78
arbitration the United States' Government have
discarded their own previous official Beports, and
have substituted a number of statements and
affidavits procured after the conclusion of the
Treaty, upon which to base their contention; the
evidence contained in latter being often at
variance with the previous and contemporaneous
Beports thus discarded.    Though a special Act 5lst Cong.,
..... , •    2nd Sess.,
of Congress was passed to authorize an mvesti- H R 7903-
gation of the sealing industry on the Bribyloff
Islands in 1890, and such investigation was
carried out, it is at least worthy of note that
the Beport detailing the result of this investigation has not been employed in connection with
the Case or Counter-Case of the United States;
that this Beport has not been published by
that Government; and that the United States
have even refused to furnish this Beport to the
Agent for Great Britain, who had formally applied
for it.
It is thus apparent, not only that the United
States (as elsewhere shown) have gradually
changed their position in regard to rights in
Behring Sea, but that they have now almost
entirely ignored the previous Beports and assertions of their own official Bepresentatives in
respect to the facts bearing upon seal life and its
conditions.
Without attaching undue importance to the
attack made in the Counter-Case of the United
States upon the integrity of the British Commissioners, it is proposed to show, in this Appendix,
that, without important exception, the conclusions
arrived at by the British Commissioners, during
their investigations in 1891, stand unaffected by
the arguments directed against them in the
Counter-Case of the United States; that these
arguments, both in fact and form, are unfounded •
and erroneous; and that, generally, the conclusions of the Commissioners have been substantiated by further inquiries and investigations
conducted in 1892.
The subjoined notes take the form of brief
critical statements directed to the various assertions made in the part of the Counter-Case of the
United States to which it relates, and follow the
arrangement and order in which these asseSions
are presented in it.
" raft 79
The marginal references to pages, unless
otherwise specially designated, are
throughout to the pages of the United
Stales' Counter-Case.
" First."
"Matters in relation to which the Beport
and the Case of the United States
materially conflict, and concerning
WHICH Bropositions or Eacts ARE ALLEGED
in the Beport which have not been
considered in the Case of the United
States."
"Habits of the Eur-seals."
" 1. Distribution of Seals in Behring Sea and the
suggested Intermingling of the Pribyloff and
Commander Seal Herds."
Bages 48, 49.
Bages 49, 50.
Bages 50, 51.
This chapter commences by quoting and
alluding to certain passages from the British Commissioners' Beport, which convey only one side of
the discussion of facts of which they form a part.
The general conclusions reached by the British
Commissioners as the result of the whole discussion are not quoted.
The Maps relating to the distribution of seals
(particularly Xos. 3 and 4), presented by the British
Commissioners, are then noticed by the United
States, and it is contended that they are incorrect
and not justified by the evidence adduced in
support of them, particularly in the matter of the
general distribution of seals in Behring Sea
during the summer months.
It is stated by the United States that the
Maps must have been based chiefly upon the
logs of the various men-of-war, that the informa-
tion contained in these logs is insufficient to bear
out the indications of the Maps, and that, as
other evidence relied upon by the British Commissioners is not particularly specified or detailed,
it "should have no influence on the Tribunal."
It is then assumed that the only data were
those derived from the logs of cruizers, and those
of the British cruizers are reproduced in the
form of Charts appended to the United States'
Counter-Case, together with the tracks of United-
States' cruizers in 1892.
In reply to these contentions, it may be stated
that the distribution of seals in Behring Sea in
1891, as shown on the British Commissioners'
Maps, in so far as it relates to the part of
Behring Sea surrounding the Bribyloff Islands,
depended  chiefly upon the logs of the  several 80
Ff 1
I
lilt
cruizers, but an inspection of the tracks, as printed   Bages 50, 51.
by the United States, will show that the cruizers
in most cases confined their  operations to the
regions surrounding the Bribyloff Islands.
Eor other parts of the sea, other sources of
information had to be employed. The British
Commissioners refer to those other sources (including their own voyages) in a general way.
The details and the names of informants were
not specifically given, merely in order to curtail
the length of their Beport. The procedure
followed in this case r&sembled that adopted
in most other cases by both the British and See post,-p. 106.
United States' Commissioners.
Information obtained in 1892, and set forth British Counter-
in detail in the British Counter-Case, however, Case, pp. 119-140;
and Appendix,
not only fully confirms the statements made by vol. ii, pp. 33-2 7.
the British Commissioners as to the intermingling
of fur-seals in Behring Sea, and as to their
distribution in that sea; but are also such as to
supply to the United States the precise data
which they appear to require.
Mm
" 2. The alleged promiscuous  nursing   of Pups by
Female Seals."
?Pro
On this subject, the United States deny that Bage 53.
certain evidence, tending to show that female seals
nurse other pups than their own, is " sufficient to
establish the facts alleged." But the British
Commissioners in their Beport make no definite
allegation in this connection. The actual evidence
on both sides is given by the Commissioners, and
is discussed by them.
It is next stated, that though Messrs. Elliott
and Bryant are " the two most prominent
authorities relied on" in the British Commissioners' Beport, the opinions of these observers
are not accepted on the question here under
discussion.
Bryant and Elliott are often quoted as
authorities, because their observations are those
which enter most fully into subjects connected
with seal life, and have been fully published in
United States' official Beports. "Where actual British Commis-
observations are stated, doubt is seldom, if ever
cast on them; but when deductions are drawn
from observations, it is quite fair to criticize
these, even where the observer may be perfectly
sioners Keport,
paras. 321, 322. 81
Bage 53.
Bage 55.
unprejudiced. The data quoted by Bryant and
Elliott on the question of the suckling of pups,
leave their conclusion evidently in the position
of a not-proven deduction or theory.
The further complaint in the United States'
Counter-Case, that the British Commissioners
quote Elliott as.to the want of affection of female
seals for their young, while they do not quote
remarks contained in a publication by Sir E.
McCoy, is pointless. The British Commissioners
quote Elliott, because his observations agree with
those made by themselves on the Bribyloff
Islands.    They state as much.
In the British Commissioners' Beport, Mr.
C. H. Jackson, Government Agent in charge of
the Seal and Guano Islands of Cape Colony, is
quoted as making a definite assertion, to the effect
that in that region—
| the cow [seal] will suckle any of the young seals,
whether her own or not."
Mr. Jackson is consequently designated in
the United States' Counter-Case as a " questionable authority," and it is added that—
" an examination of the Report of this gentleman fails to
reveal upon what knowledge he bases such a statement;
and there is no proof that he has ever seen the seal islands
of Cape Colony, or even been informed by experienced
individuals respecting the habits of the fur-seals found
there."
British Commissioners' Report,
Appendix, p. 155.
Bages 56, 57.
British Commissioners' Report,
para. 324.
It is then insisted that his evidence is unworthy of consideration. Mr. Jackson, however,
actually says in his Beport:—
" I have availed myself of information kindly furnished
by the best practical experts in the Colony."
An attempt is here made in the United States'
Counter-Case, to show that the British Commissioners attributed a statement on the-same subject
to Sir E. McCoy, which was not made by him.
A reference to the Beport will show that the
British Commissioners merely allude to the
statement and cite a work by Sir E. McCoy, in
which it is contained. It is not implied that
the statement was made by Sir E. McCoy personally, but the fact that he included it in his
work may probably be assumed as showing that
he believed in its inherent credibility.
[182] T i£! ■; i
Ill1
ill
82
It is also asserted, in concluding this subject,       Bage 56
that the position taken by the United States, i.e.,
that a female seal will suckle no pup  but her
own, is supported by "ample evidence."    This
evidence is referred to in a foot-note.
Mr. Grebnitsky is among the authorities thus United States'
■»      Counter* Ocisfi
quoted, but the remark made by him is only Appendix, p. 366.
incidental, and he advances no proof. So also
with the evidence in the Appendix to the United
States' Case which is here referred to. This
consists either of mere assertion, or, when proof
is endeavoured to be advanced, it is quite inconclusive in character.
Observations in 1892 show that young seals do
at least  occasionally  obtain   milk
mothers than then.' own.
British Counter-
fcom   Other  Case, Appendix,
vol. i, p. 143.
I
»l
I 3. Period at which the  Female Seals go into the
Water."
In regard to this subject, as in the case of the
last, it will be found that the Beport of the British
Commissioners makes no definite " assertion,"
though it is represented as so doing in the
Counter-Case of the United States; where it is
also stated that the Beport " practically adopts-
the opinion of Snegiloff, the native foreman on
the Bussian Islands," though this is likewise
not apparent in the Beport itself. In the Beport
it will, in fact, be found that all the evidence
available, together with the personal observations
of the Commissioners, has been collected and
discussed impartially.
The general conclusion arrived at by the
British Commissioners is to the effect that the
female seals remain some time on land after
giving birth; that when they begin to return to
the sea they do not at once resume their feeding
habits, but resort to the waters close to the
shores, and that probably about the middle of
September, they may again begin to spend a
considerable portion of their time at sea in search
of food.
It is because these conclusions, and the
evidence supporting them, are found to be adverse to a new position since taken in. the Case
of the United States, that it appears to be considered necessary to commit the British Commissioners to some "assertion" which may
effectively be attacked.
'ages 57, 58. 83
Bages 57, 51
Post, p. 106,
British Commissioners' Report,
Appendix,
p. 167.
Bages 58, 59.
The evidence obtained from the natives of the
Bribyloff and Commander Islands is rejected
by the United States because the names of the
Commissioners' informants are not detailed, a
point dealt with elsewhere.
Information regarding the feeding habits of
seals obtained from Her Majesty's Minister at
T6ki6 is rejected, and stated to be "based on no
actual knowledge," though he specially states
that the notes prepared by him were " based on
an experienced authority."
The published statements of Capt. Bryant as
to the period during which the females remain
on shore after giving birth are next attacked,
and it is endeavoured to showjbhat discrepancies
occur in his Beport; while the fact that the same
author (a Government official) does not repeat
the statement of the actual period during which
the females remain ashore after giving birth,
in a later communication addressed to Brofessor
Allen, is said to show that—
" Captain Bryant had publicly discarded the opinion used
by the Commissioners to maintain their position."
And, as evidence of this, references are given to
two statements made to Brofessor Allen, in
neither of which does Captain Bryant say anything at variance with what is quoted by the
British Commissioners. He does, indeed, state
that—
h Monograph of       " the females, after giving birth to their y
North American •    ,    ,-i „ „.„+„„»
„.   .    •, ,,     „0.   repair again to the water.
Pinnipeds,   p. 386.      r        °
oung, temporarily
Ibid., p. 382.
But not for the purpose of feeding, for in the
same paragraph he says that, after impregnation—
" she lies either sleeping near her young, or spends her
time floating or playing in the water near the shore,
returning occasionally to suckle her pup."
In the statement next referred to, only a part
of what Captain Bryant wrote is quoted. He
begins the sentence, thus partially given, by
saying—
■ As you have had the result of" my first season's observations 'there [see Bull Mus. Comp. ZooL, vol. ii, 1870?
pp. 89-108], I need not be so diffuse in my descriptions
as would be otherwise necessary, and you will •understand," &c.
And ic is from the Beport thus referred to that
the Commissioners quote. I TOPE
United States'
Counter-Case,
Appendix, p. 418.
84
It will be remembered that certain recent   Bages 58, 59.
affidavits made by Captain Bryant in 1892 are United States'
prominently advanced as evidence by the United ^if^ndl
States.
Having, in the manner above outlined, treated
the evidence, observations, and general conclusions
of the British Commissioners on this subject, the
United States' Counter-Case concludes the discussion by the following unwarranted statement:—
" One native of the Commander Islands is, therefore, the
sole authority for the statement of the British Commissioners."
The method of treatment thus adopted on
the part of the United States, for the purpose
of combating a reasoned discussion on natural
facts, is resorted to in many other instances in
their Counter-Case. But it is impossible to treat
all these in any detail here. The attention of
the Arbitrators is therefore respectfully called to
a comparison of paras. 303-316 of the British
• Commissioners' Beport, with their criticism as
contained on pp. 57—60 of the Counter-Case
of the United States.
In   conclusion,  the   United   States   refer  to
evidence   obtained   in   1892   by   Mr.   C.   H. Post, p. 125.
Townsend, which is elsewhere discussed, and to
observations of Mr. Stanley-Brown.   It mav here
be   mentioned, however, that Mr. Townsend's
observations as to the condition of the rookeries
in regard to the number of females ashore at a
certain date in 1892, does not show that the
observations of the British Commissioners at the
same date in 1891 were erroneous.    Neither is
Mr. Stanley-Brown's statement, that the females
stay on land fourteen to seventeen days after the
birth of the young, in conflict with any statement
made by the  British  Commissioners;  but the
assumption must not be made that when the
'females begin to seek the water this is equivalent
to their going to sea in search of food. British Commis
sioners' Report,
paras. 306, 308,
309, 313.
1 4. Aquatic Coition."
Evidence quoted by the British Commissioners Bages 60, 61.
from published Beports of the United States, on
the authority of Captain Bryant and Br. W. H.
Dall, on the subject of aquatic coition, are next
combated by drawing attention to depositions
made in 1892, in which these witnesses deny or
m.
KM
I*
11: 85
Bages 60, 61.  endeavour to minimize the force of their previous
statements.    Captain Bryant is as definite in his
former Beports   respecting   the   occurrence   of
coition at sea and its frequency as it is possible
See British Com-    for language to be.    He repeats these statements
missioners' Report, •i1 j     -r» ,       t „ -,^^,»,
pp. 52, 53. m three separate Beports, dating from 1869 to
1880, to which references are given in detail in
the Beport of the British Commissioners.    He
says, for instance :—
" Monograph of
North American
Pinnipeds,"
pp. 405, 406.
" By taking a canoe and going a little off shore considerable numbers may be seen pairing, and readily
approached so near as to be fully observed."
Bages 63, 64.
Dr. Dall is almost equally precise, writing—
Bull. Mus. Comp.        " They [the females] sleep in the water, lying on their
Znot.. vol. ii, No. i, gjjgg wifa the fcwo flipperg r0f the upper sidel out of the
p. 101.    See also ,        .       , ,     .     , J
" Alaska and its water, and receive the males in the same position."
Resources," p. 494.
If these gentlemen have been in the wrong in
regard to opinions thus stated in scientific treatises,
which are now denied in affidavits lately obtained
from them, can it be assumed that the statements
made in these affidavits are correct ?
On these pages of the United States' Counter-
Case, various  arguments  are advanced for the
purpose of endeavouring to show that coition at
British Counter-     sea cannot occur.    These can be shown in detail
Case, Appeudices.    j-0 ^,e erroneous, and to be based on misconceptions
Ba°"e 63. or on facts imperfectly stated; but as further
British Counter-     ano^ wholly conclusive evidence, obtained since
Cas.-, Appendix,      the  completion of  the  Beport  of the  British
Commissioners, is available in the British Covinter-
llii'l , vol. i, ~ ..     . „. , ,
pp. 125 126. Case to prove that coition at sea is often observed,
Ibid  vol. ii ^ ^ n0^ considered useful to follow further the
Pi. 33, 84. hypothetical statements and attempts at destruc
tive criticism of that Beport, which are resorted
to on the part of the United States.
Vase 65.
" Management of the Bribyloff Islands as
the allege!) cause of the decrease of
the Alaskan Seal Herd."
It is here stated in the United States' Counter-
Case that—
"the British Commissioners, at several places in their
Report, admit that the Begulations in force, and the
methods employed in taking seals on the Pribyloff Islands,
are the best that could have been adopted," &c.
[182]
Z
■a Mm
British Commissioners' Report,
paras. 660-662, 46.
86
It is then argued that, as the methods were Bage 65.
good, it is only to the manner of the execution
that the criticisms of the British Commissioners
apply; and on the further assumption, that both
were perfect during the Bussian regime, that the
increased annual killing of seals during the
United States' control is the only remaining
point of criticism to be met by the United
States.
But this apparently simple method of reducing
the points in dispute to a single item does not, in
fact, accord with the statements made in the
Beport of the British Commissioners. The Beport
does not, as here stated by the United States,
affirm the excellence of the principles of management without qualification.
Without, however, in tins place entering into
a general discussion of this matter, it is proposed
to follow the special and limited line of criticism
adopted on the part of the United States.
The United States then proceed to insist that
attention as to any decrease of seals should
be confined to the first decade of the lease of the
Alaska Commercial Company before pelagic
sealing became important, because the British
Commissioners admit that in later years there
were concurrent causes tending toward decrease.
The argument would, however, invalidate all the
United States' arguments directed against pelagic
sealing, and the conclusions in respect to such
sealing at which they arrive.
Moreover, the United States in their Case have
held that in these recent years the decrease was
observed in females only, and that these have been
killed at sea. They have endeavoured to prove this
at length, and cannot now complain if evidence United States'
showing the "decrease in the number of males is Case, pp. 172-174
adduced on the same subject for the same period,
i.e., the second decade of the Alaska Commercial
Company's lease.
It is here, however, admitted by the United
States that, under certain conditions, matters
relating to the islands, even after pelagic sealing
became important, may be relevant to the discussion.    The conditions are stated to be :—
| That there was a sufficient increase in the number of
seals killed on the islands, or sufficient changes in the
methods employed in taking the quota, to materially affect
and deplete the seal herd, even without the introduction
of pelagic sealing."
Bage 66.
sf« Bage m.
United States*
Case, p. 153.
87
They then admit that some time after pelagic
sealing began—
" the number allowed by the lease to be killed was more than
the reduced herd could properly endure; but they assert
that any evil effects resulting from the management of the
islands is directly chargeable to the conditions established
by pelagic sealing."
This remarkable admission stands broadly in
contradiction to the statement elsewhere-made,
that—•
" this number is variable and entirely within the control
of the Treasury Department of the United States."
In other words, the preservation of the seals as
a whole was not the object of _the management
of the islands, the ruling factor being the annual
take of a large number of seals, whatever the
effect.
But passing over for the moment these aspects
of the case, it may be pointed out that the
British Commissioners in their Beport practically
comply with the conditions insisted on by the
United States. They, in fact, show that the
methods as well as the actual number of seals
taken on the islands were such as to be injurious
to seal lif e as a whole. Their treatment of the
whole subject of the management of the Bribyloff
Islands is practically directed to these points.
It is next stated by the United States that not
till 1889 did the—
" decrease in the birth-rate of the seal herd .... become
sufficiently evident among the male portion of the herd to
seriously attract the notice of, and alarm, the Government
Agents on the islands."
It is, of course, impossible to say what precise
amount of decrease would be such as to " attract
the notice " of a Government Agent, or whether
these Agents were more easily "alarmed" in
this respect in the last year of the lease of the
Alaska Commercial Company than they had
been formerly. I he Company was in fact about
to make a new tender for a second lease of the
islands. It is unnecessary to inquire into this
subject too minutely, for the United States have
Ibid., pp. 165,166. in their Case adduced evidence, and asserted on
the authority of that evidence, that the decrease
of seals became perceptible as early as 1881;
while the British Commissioners have conclusively shown that the decrease was almost
continuous from the earlier years of the United
British Commissioners' Report,
paras. 57, 58. 88
I Hi
ijft'J i:>
'mm:
Mm
States' control of the islands, and had become
such as to be seriously felt, at least as early as
1879.
It is here stated by the United States that in
1889—
"for the first time the weight of skins fell below the
average for former years."
If, by this statement, ife is meant merely to
affirm that the weight (this being equivalent to
the size) of skins was lower than the general
average weight of the preceding nineteen yeirs,
it is correct; but if it is intended to mean that
this was the first year in which the weight of
skins was lower than in preceding years considered separately, it is untrue. Evidence quoted
in the British Commissioners' Beport shows conclusively that the decreasing weight of skins was
fully acknowledged on the islands at least as
early as 1883, and evidence since obtained, and
given in the British Counter-Case, shows that
smaller and smaller skins were almost each year
taken since 1873.
It is here stated, that notwithstanding the
reduced number of seals taken in 1890 and in
1891 (under the modus vivendi of that year)—
" the herd continued to become more and more depleted,
and in 1892 a decrease appears over 1891, though the
consensus of opinion of those on the islands is, that.in the
last year the male seals have' increased to a limited
extent."
These remarks are doubtless intended to apply
to seals seen upon the Bribyloff Islands only,
and do not take into account observations on
abundance of seals made at sea. But even
limiting the view to the islands, the conclusions
above stated are directly opposed to those resulting
from the directions upon the. islands of the
British Commissioners in 1891 and to those of
the British Agent in 1893.
The British Commissioners say :—
"All the evidence collected indicates, that they [the
rookeries] were, in 1891, in at least as good condition as
they were in the preceding year;"
while as to 1892 the British Agent says :—
| The rookery- and hauling-grounds themselves exhibited
unmistakable evidence that the number of seals was
greater in 1892 than in 1891,"
and adds that during the whole time he was on
the islands he never heard  any  one  say that
Bage 66.
Bage 67.
British Commissioners Report,
para. 696.
British Counter-
Case, p. '257; and
Table facing that
page.
See. British
Counter-Case,
Appendix, vol. ii,
pp. 29-32.
British Commissioners' Report,
paras. 85-87.
British Commissioners' Report,
para, 91.
British Counter-
Case, Appendix,
vol i, p. lfil.
Ibid., p. 152. 89
Bage 67.
United States'
Counter-Case,
Appendix, p. 385.
Ibid., p. 393.
Bage 68.
there were fewer seals in 1892 than in 1891.
Evidence as to increase in the number of seals
is given at length in his Beport. Mr. J. Stanley-
Brown, on whose testimony alone the statement
is made that " in 1892 a decrease appears over
1891," simply states that there was a " perceptible
falling off" of the females, but offers no proof.
Mr. Townsend, who visited the Bribyloff Islands
in 1885 and 1891, and made " frequent observations as to the condition of the rookeries," again.
visited the Bribyloff Islands in 1892 for the
purpose of studying seal life. lie makes no
statement in his Beport as to the comparative
number of seals on the rookeries in 1891 and
1892.
Though, as above stated, maintaining that all
reference to the management of the Bribyloff
Islands subsequent to the introduction of pelagic
sealing are irrelevant, the United States' Counter-
Case here affirms that the Beport of the British
Commissioners " fails to establish a single instance
where the management of the islands or the
methods employed thereon have been changed
since 1880 from the' appropriate and even perfect'
system adopted in 1870," &e.
While the British   Commissioners, in   their
Beport, do not treat the years here referred to
as a separate period, they show that the methods
employed on the islands, from the first, and
British Commis-     including these years, were injurious, and caused,
sioners' Report, ,. . ■,  -X    •      ,.       ■     ,-, v
paras. 57 662-669 m the main, a general diminution in the number
684, 694, et seq. 0f seals resorting to the islands. They show,
in particular, that in these years the standard
weight of skins was deliberately reduced in order
to permit younger and yet younger seals to be
killed, and that the injurious effects of driving
became yearly intensified.
The words quoted from the British Commissioners' Beport in the above extract from the
United States' Counter-Case, moreover, entirely
misrepresent the meaning of the Commissioners as
separated from their context. In the Commissioners' Beport the sentence from which they
are taken reads as follows:—
Brid., para. 662. " In short, from a transcendental point of view, the
methods proposed were appropriate and even perfect, but
in practical execution, and as judged by the result of a
series of years, they proved to be faulty and injurious."
Beverting to the reiterated contention of the
United States, that all references to the condition
[182] 2 A
wktm Ii
90
m
Iw'-'k
,r:i.
Bage 68.
of the Bribyloff Islands after the introduction of
pelagic sealing are irrelevant;—this is in no way
admitted. The Commissioners were to inquire
into all the causes affecting seal life and leading
up to the present conditions, which are in the paragraph here referred to spoken of as depletion of
the Bribyloff rookeries. It would be unreasonable
to omit from consideration the influence of killing
and methods on the islands during the last ten or
twelve years. Moreover, the methods adopted on
the islands should have been such as to provide
for causes of decrease generally, when these should
occur. If there had been no pelagic sealing, bad
seasons or other natural causes might equally
have brought about a decrease similar to that
which is alleged by the United States to have
resulted from pelagic sealing. The facts show
that in this event provisions would have been
equally wanting to meet such a case. Therefore,
the methods of control and management upon
the islands were clearly imperfect and unfitted to
meet contingencies.
The statement made on this page of the United
States' Counter-Case, that the killing of 100,000
young males annually could only have been in-
jurious by leaving an insufficiency of males to
fertilize the females, is incorrect; neither is the See British Com-
excessive killing alone referred to by the British rai8sion„e"f ^ePort'
D * paras. 895 et sea.,
Commissioners for proof of bad management on 674-693, 808-883.
the islands.   The attempt made to narrow down
the issue to this one point in one of its aspects is
thus again entirely misleading.
Special attention is then paid, and at some
length, to endeavour to weaken the force of a
statement, made by Captain Bryant in an official
Beport, as to excessive killing on the islands in
1875, which is quoted by the British Commissioners.
As is stated in the United States' Counter-Case
on this page that:—
"The reasons for his [Bryant's] Report of 1875 are
•clearly shown by an examination of his testimony before
a Committee of the House of Representatives in 1876."
Page 69.
In reply to the question—
" Your opinion, tben, is that the number of 100,000 on H R   44th Con_
the two islands, authorized by law, can be regularly taken 1st Sess., Report
without diminishing the crop or number of seals coming No' 623' p' "'
to the island ?"—
Mr. Bryant replied:—
11 don't feel quite sure of that, as will be seen in my
ifeii 91
Page 69.
H. R., 44th Cong.,
1st Sess., Ex. Doc.
No. 83, pp. 176,
77.
Page 71.
detailed Report to the Secretary of the Treasury, included
in the evidence which has been laid before the Committee.
There were indications of diminution in the number of
male seals. I gave that and another reason, which I
explained at large in that Report."
The other reason then follows, and is that
quoted in the United States' Counter-Case.
That this other reason was considered by Captain
Bryant to have been of slight importance, is
very evident when his Beport is referred to.
After writing of the frequency with which the
hauling-grounds are driven from, he says:—
" Thus, it will be seen the method of killing does not
admit of the setting apart of a special number and taking
the remainder for the quota for the market, and the only
possible way to preserve the requisite number for breeding
purposes is to restrict the number to be killed so far
within the product as to insure enough escaping for this
object."
Immediately following this comes the passage
quoted in the Beport of the British Commissioners (para. 678). Bryant then treats at some
length of the great number of seals that by
natural causes lose their lives while they are
absent from the islands, and concludes his remarks on this subject in these words :—
" One other cause should be stated that has directly
contributed to diminishing the present stock of breeding
males. During the season of 1868, before the enactment
of the prohibitory law, the several parties sealing there
took 240,000 seals monthly [? mostly] of the products of
the years 1866 and 1867. These would have matured and
been added to the present stock of breeding males in the
years 1872 and 1873, and to this apart of the prospective
deficiency is to be attributed."
These are Captain Bryant's " reasons for liis
Beport of 1875," and nothing further is necessary to show that, while there may have been
other causes that contributed to the scarcity of
breeding males, he evidently considered the one
quoted by the British Commissioners to be that
to which the diminution in this class of seals was
to be principally attributed.
A discussion is begun on this page of the
United States' Counter-Case of statements in the
British Commissioners' Beport respecting decrease between 1870 and 1880. It is, however,
again insisted that the number killed on the
islands is irrelevant, unless it can be shown that
this caused decrease.    It is from this very aspect 92
that   the matter is   considered in  the   British
Commissioners' Beport.
Complaint is made of the alleged I unfairness "
of the comparison of the annual number of skins
taken during the Bussian period with the 100,100
quota of the United States. This " unfairness "
appears to be that referred to in the subjoined
quotation from this part of the United States'
Counter-Case, in which it is said :—
" The desire is to suggest the inference that the killing
of 50,000 was excessive."
Page 71
Page 72.
W-
■ MWC-)
The   Commissioners   were,  however,  in   the British Cominis-
paragraphs of their Beport, here specially referred, to, concerned in giving a historical resume1
of the circumstances connected with killing, and
the number killed. Burther information on the
same subject will be found in the British Commissioners' Beport, paras. 659-703. In para.
664 they state :—
" From the experience thus recorded, it appears to be
very clearly shown that in the average of years the killing
of 40,000 to 50,000 seals on St. Paul was more than this—
the principal seal-bearing island—could stand, while that
practised during the later years of the Russian control
scarcely fell short of the figure at which all continued
ncrease in number of seals would cease."
sioners' Report,
paras. 39-41.
m
s is!
Prom this conclusion, based on all the facts,
they go on to discuss the greatly increased killing
afterwards practised under the United States'
control. The years of great scarcity on the
islands are not included in making the above
comparison.
Allen, doubtless on Bryant's authority, states
that in 1857 the—
" rookeries are said to have become very nearly as large as Alk
'Mo
iph
now [viz., the early years of the United States' control of
which he wrote], the natives believing, however, that there
has been since the last-mentioned date a very gradual, but
steady, increase."
of North American
Pinnipeds," p. 879.
British Commissioners' Report,
para. 663.
See also para. 665.
There can, therefore, be no possible objection
raised to the comparison of the years 1857 to
1867 (under Bussian control) with those of the
following years under United States' control.
The British Commissioners give the figures for ibid., p. 132, and
these years as accurately as possible, and the par83, 776-779-
authorities for the figures given are quoted by
them.    There remain, unfortunately, among these Page 72.
Bage 73.
93
years, 1863, 1861-, 1865, and 1866, for which the
figures are somewhat uncertain.
On this page of the United States' Counter-
Case, extracts and disconnected fragments from
Bussian correspondence relating to the islands
United States'
Counter-Case,
Appendix, pp. 193- are referred to, apparently for the purpose of
indicating that a high rate of killing was
maintained under the Bussian regime from 1860
to 1866. An examination of these communications (imperfect as they are) shows, however,
that they merely include requests or instructions
from the Board of Management or the Chief
Manager for the killing of certain numbers of
seals for skins. There is nothing to show that
these projects for killing were carried out. In
fact, in one case, in 1860, the Chief Manager,
though instructed to get 50,000 to 60,000 skins,
expresses his doubt of being able to do so, owing
to certain unfavourable conditions in 1859.
Of the years mentioned in this correspondence,
for which the number killed on the islands has
been ascertained, the following comparison may
be made :—
Ye
18S0
1861
1862
Number asked to
be tn ken
(Russian Correspondence).
Number taken
(British Commissioners'
Report, p. 132).
50,000 or 60,000
47,940
Permitted at first,
80,000;
reduced by order to
48.000
21,590
29,699
34,294
Eor the remaining years to 1866, the numbers
requested or ordered to be killed was as
follows:—
1863
1864
1865 (by Board) .
„ (by Manager)
186S
80.000
70,000
53,000
48,000
50,000
British Commissioners' Report,
p. 132.
Elliott, Census
Report, foot-note
op. 76, 77.
The approximate numbers aetuaUy killed, and
shown in the second column, as ascertained from
the best available data, are, however, in these
years much lower.
It is not to be supposed that in thus failing to
carry out the instructions as to killing, the persons.
on the islands were unable to obtain enough seals..
[182]
2 B 94
The difficulty arose chiefly, if not entirely, from      Bage 73.
the time consumed and the amount of labour
involved in curing a large proportion of the skins
by drying, as was then customary.
The special circumstances connected with the British Commis-
• i ,  i •      10/.„    /hk aaa\ sioners'Report,
excessive number taken in 1867   (7o,UUU)  are parag> 3^ 779,
explained in the Beport of the British Commissioners.
The British Commissioners are on this page of Bage 74.
the United States' Counter-Case charged with a
flagrant violation of their instructions as to impartiality, because they do not quote the whole of
a paragraph by Elliott referring to the proportion
of bulls to females. The part of the paragraph
quoted, however, gives Elliott's general con-
elusions. It would not have been pertinent to
the point under consideration to quote the exceptional cases also mentioned by him. He notes
both much larger and much smaller numbers of
females to a bull than the average. In correcting
the "omission" of the Commissioners, the United
States quote only that part of the additional
matter which refers to the exceptional cases of
very large numbers of females.
Moreover, the statement that Mr. Elliott's
estimate was not entirely satisfactory to himself,
appears from the first part of the quotation given
by the British Commissioners, as to the difficulty
he found in making an estimate. The entire
passage is here cited, the italicized parts being
those quoted by the British Commissioners. The
words in brackets are those which are omitted
from the quotation as given in the United States'
Counter-Case :■—
I I found it an exceedingly difficult matter to satisfy Elliott, United
myself as to a fair general average number of cows to each States' Census
bull on the rookery; but after protracted study, I think it '
will be nearly correct when I assign to each male a general
ratio of from fifteen to twenty females at the stations nearest
the water; and for those back in order from that line to
the rear, from five to twelve; [but there are so many
exceptional cases,] so many instances where forty-five and
fifty females are all under the charge of one male; [and
then, again, where there are two or three females only,
that this question was, and is, not entirely satisfactory in
its settlement to my mind]."
It is next alleged, that the Beport of the
British Commissioners—
"fails to give any testimony to show how many females
constituted a harem in 1891," &c.
BaajjB 'JiUJWiiM»lMKgBBar< lm
Bage 74.
British Commissioners' Report,
para. 55.
British Counter-
Case, Appendix,
vol. i, p. 140.
Bage 75.
It will be found, however, that the Commissioners give a statement of this kind in the very
paragraph following that to which reference is
here made by the United States. Burther
evidence of the same kind, for 1892, is contained
in Mr. Macoun's Beport.
It is here stated, in the United States' Counter-
Case, in connection with the alleged " surplus of
virile males," that a photograph, by Mr. Stanley-
Brown (which is reproduced in the Appendix to
'the Counter-Case), shows a—
" Dumber of vigorous bulls located on the breeding-grounds
unable to obtain consorts."
An inspection of the photograph referred to
will show how insufficient the evidence it affords
is. It shows a few bulls hauled out at the back
of the breeding-ground, but with them are some
smaller seals, which may or may not be females.
Mr. Macoun, in fact, states that at North-east
Boint (a part of which is shown by Mr. Stanley-
Brown's photograph) there were, in his opinion,
more old bulls than on all the other rookeries
combined, but that even there the number was
not great, and many of those characterized by
-Mr. Stanley-Brown as " old bulls "—
British Counter-
Case, Appendix,
vol. i, pp. 140,141.
" showed the ' grey wig,' which proved them to be not yet
fully grown, while others were, without doubt, worn-out
old bulls, no longer fit for service. That the majority of
them were in this condition is proved by the fact thSt
though attempts at service by ' grey wigs' were not
infrequent, I never saw one of these old bulls pay the
slightest attention to any females that might pass near
them."
United States'
Counter-Case,
Appendix,
pp. 264, 265.
Brofessor Evermann's count of part of one of
the smallest rookeries is further referred to to
show an abundance of bulls, in proportion to the
number of females.
But the reference here made to Brofessor
Evermann's evidence is misleading. This gentleman counted the seals on two parts of Lukannon
rookery. His first count of a small area (deducting two bulls without pups near them)
eives an average of over nineteen females to each
bull. (This is arrived at by taking each pup as
representing a female.)
[182] 2 C FPMl
W£
96
age to.
A second count of a larger area of the same
rookery shows an average of forty females to
each bull (deduced as above). He maintains
that many of the pups here did not belong to the
bulls, but why he should have chosen part of the
rookery with an excess of pups is not explained.
He further adds that many cows and pups were
not counted, because they " did not seem to belong
to any particular family."
Thus, the statement made in the United States'
Counter-Case, that Evermann's count showed
an average of fifteen females to each bull, is
incorrect, and Evermann's statements are themselves inaccurate by reason of his omission to
count the whole of the females and pups actually
seen by him.
On a later page, Brofessor Evermann says that United States'
cows were more abundant in proportion to bulls Counter-Case,
1     x Appendix, p. 2
on Ketavie rookery than on Lukannon.
A count made by the same gentleman at Little I
East rookery,   St   George   Island,   again  gives
an average of about forty cows to each bull.
The British Commissioners having quoted in
their Beport certain statements made by Mr.
H. W. Elliott, which throw important light on
the effect of the excessive killing of male seals
upon the Bribyloff Islands, a reference to these
statements is made in the following terms on this
page of the United States' Counter-Case :—
I The Commissioners also rely on a newspaper extract,
which purports to be a summary of a Report made by
Mr. Henry ."W. Elliott in 1890 to the Secretary of the
Treasury, to establish certain alleged facts."
68
273
rail
The circumstances respecting Mr. Elliott's
specially-authorized investigations on the Bribyloff Islands in 1890, the fact that his Beport of
these investigations has not been made public by
the United States' Government, and the further
fact that it has actually been refused to furnish
it to the Agent for Great Britain, have already
been alluded to. It would appear that when
Mr. Elliott found that the United States' Government did not intend to publish his Beport, he
communicated to the press, over his signature, a
summary of his conclusions, being that contained
in his letter submitting the Beport as a whole
to  Secretary  of the  Treasury "Windom.     The
IK "3Lm**mwmMr*m»i 97
Bage 75.
Bri'ish Case,
Appendix, vol. iii.
" United States
No. 2 (1*91)."
p. 53.
Bage 76.
matter thus made public, will he found in the
Appendix to the British Case. Its authenticity,
so far as known, has never heretofore been questioned either by the United States' Government
or by Mr. Elliott. The United States' Government are in possession of the original Beport.
An objection is next raised in the United
States' Counter-Case, to the effect that certain
figures, quoted from Mr. Elliott, relating to the
state of the rookeries on the Bribyloff Islands in
1890, and showing a want of virile male seals
there, appear in the part of Mr. Elliott's statement given to the press by him, after his signature. As it is stated in the publication in question
that the figures were furnished-" by Mr. Elliott, it
is to be assumed that they were an additional
excerpt from his full Beport. If they are not,
the United States is in a position, by producing
the Beport, to prove that they are not contained
in it. The British Commissioners do not vouch
for the accuracy of the " actual figures " quoted.
They say expressly in this case that Mr. Elliott—
Para. 433.
" does not explain in what way this numerical estimate
was arrived at"
But they fail to see any evidence in Mr. Elliott's
attempt to put the circumstances of the decrease
of male seals in figures, to <io otherwise than
illustrate these circumstances to the best of his
ability.
In the second paragraph, on this page of the
United States' Counter-Case, a remark made as
subsidiary to others included under paragraph 44
of the Beport of the British Commissioners is
chosen for attack. This remark is brought into
special prominence for the purpose of attempted
rebuttal, in ihe following terms:—
British Commissioners' Report,
para. 44.
" The second mode by which they endeavour to show a
decrease in the seal herd prior to 1880 is by pointing to
an alleged recognition thereof on the part of the lessees in
the reduction made by them of their catch in 1875, and to
an alleged lowering of the standard of weights of skins."
The statement made by the Commissioners as
to reduced number of skins taken in 1875 is
denied by the United States. In thus denying,
they  cite   the   British   Commissioners'  Beport 9S
fBage 70.
(p. 132), Where -a Table is given showing the
totabkilling in each year on the Bribyloff Islands.
■But on referring 'to this Table, it is found that
the number killed in 1875 was, as stated by the
Commissioners, less than that.in 1872, 1873, and
1874 (over>6j000 less than in the last-mentioned
•year).
Beference is further made'in this connection to
vol. ii of the Appendix to the United States'
Case, in contravention of the British Commissioners'' statement, but -the Tables there >found
(pp. 558-585) are those of salted seal-skins sold
in London. Such sales do not correspond with
the actual number of seals taken on'the islands
in the same -year, as skins "have often 'been 'held
over from one year to the next in London; and
a pait of the skins taken in 'the autumn 'have
almost invariaSbly been held over till the nex!t
year in the Bribyloff Islands themselves.
The third reference given in support of the
denial of this particular statement of the Commissioners, is to a TdbJe on p. 427 of tiie 'United
States' Counter-Case. It must be explained that
the statistics of -killings on the Bribyloff Islands
to which the Commissioners were able to >refer,
were those which Tiad been published by the
•United States. Therefore, when, as in this
instance, the United States now produce new
and more detailed figures, alleged to have been
on file in the Treasury Department, no proof of
unfairness or inaccuracy can justly be urged as Senate, 5lst Con?.,
against the Commissioners.    Thus, in the Tables S,d J'88" oo Do°
' JNo. 49, p. 29.
of killings heretofore accessible, it was impossible to apportion the number of | pups " killed
for food in eaeh particular year, for only the
rand total for a number of years was given.
But accepting the new Table here printed and
referred to by the United States, the killing in
1875 is  even there  shown  to  have been more
than 4,000 less than in 1874.    A reference to
the diagram given in the Commissioners' Beport D; 0      v
will show graphically the character of the change '
referred to by them as occurring in 1875.
On this page of the Counter-Case, the United Bage 77.
States deny that any lowering of the standard
weight of skins taken on the islands occurred till
1886, contrary to statements made in the British
Commissioners' Beport (para. 694, .&c), but in
so doing the United States ignore the absolute evi- British Commis-
dence to this effect by one of their own principal sioner*' *eport>
» i r      paia. C96.
rAm*ML72*mm*&f*f*jmmz:* 99
Bage 77.
As to this Table,
see Appendix i I,
post.
British Counter-
Case, Appendix,
vol. ii, p. 261.
P-
witnesses (H. H. Mclntyre), which carries the
lowering of weight back to 1883. It is, however, admitted that a lowering of standard
weights occurred in 1886. It is stated in the
Case of the United States that a decrease became
perceptible on the islands in 1884-85. The
lowering of standards is referred to by the Commissioners merely as an index of the decrease
on the islands, and the date of such lowering now
fixed by the United States does not agree with
that of admitted decrease as stated in the United
States' Case.
Beference is next made by the United States
to a new Table by Mr. Heilbronner, alleged to
show the weights and prices of skins from the
Bribyloff Islands from 1874 to 1S89 (both inclusive). The prices given in this Table have no
bearing on the present question, as these depend
on many other circumstances besides the weight,
quality, or size of skins offered for sale.
Erom the Table printed, the "twelve additional columns showing percentages " have been
"omitted for the sake of brevity." Owing to
this fact, the Table affords only a basis of computation, not any distinct evidence as to the
conditions from year to year.
.Further, as already stated, the weights of
skins taken are referred to by the British Commissioners only as a rough index of the sizes
and ages of the seals kiHed. Tso information
is afforded as to the manner in which these
weights have been determined in the Table
now presented by the United States, nor as to
whether they are those of skins as taken on the
islands, or those of salted skins as sold. It would,
however, appear from the classification by sizes
adopted in the Table, that the latter are meant,
as no such classification by sizes is made on the
islands. The weights of skins spoken of by the
British Commissioners are, on the contrary, those
taken or estimated on the Bribyloff Islands.
Messrs. Lampson state that the weights of salted
skins are greater than those of skins in the raw
state; so that if the weights given in Mr. Heil-
bronner's Table are those of salted skins, they do
not compare in any satisfactory way with the
weights referred to by the British Commissioners.
Fortunately, however, we are relieved from the
ambiguities incident to the statement above made,
by the facts disclosed-in the detailed Table and
analysis of skins sold, contained in the Appendix
[182J 2 1) 100
mffil
mm
mi
to the British Counter-Case. Every skin there Bage 77.
included has been measured with accuracy, and
the Table includes practically every seal killed
for market on the Bribyloff Islands from 1873
to 1892 (both inclusive). The subsidiary question of weight, and the doubt as to place of
weighing and character of skin when weighed,
may, therefore, be dismissed. The almost continuous decrease in sizes is the main point in See British Counter-
.. Case, p. 257.
question.
Still further, in the statement made on the United States'
x    c j.t     rr   -x   3   ax x! •  i,x    j? Counter-Case,
part of the United States, the average weight ol p 77.
skins is taken.   This is little clue to the nature
of the killing generaUy, for whereas in the earlier
years a sufficient number of skins  of medium
weight (which are those of greatest value) may
have been available, in later years the average
may (lacking these) have been made up of extra
large and extra small skins.
The denial of the United States as to the
reduction in standard weights of skins is therefore shown to rest on unsound and incorrect
evidences. More than this, it is wholly disproved
by the disclosures of the detailed Tables last
referred to.
Mr. Webster's evidence, with other evidence, is
quoted by the British Commissioners (para. 677)
in support of the statements of natives detailed in a preceding paragraph, respecting the
decreasing number of seals taken at North-east
Boint. An attempt is made on the part of the
United States to traverse Webster's evidence
alone. But on referring to the paragraph of
the Commissioners' Beport here cited, it will be
found that the statement made in the Counter-
Case of the United States is erroneous. Both
Mr. Webster and Mr. Bowler are quoted as
authorities for the figures given by the British
Commissioners. Burther, on referring to the
Table specially compiled to rebut this evidence,
and printed in the Appendix to the United States'
Counter-Case, it will be found that both these
gentlemen are fully justified in the statements
made by them to the Commissioners. It is to be
presumed that both spoke from memory, and not
by the book, and precision to units is therefore not
to be looked for. Webster said that in 1874 and
1875,35,000 to 36,000 skins were taken each year
at North-east Boint. The Table shows in these
two years respectively 34,526 and 35,113 skins.
Bowler said that 29,000 and 18,000 skins were
■
■Mf- 101
Bage 77.      taken at North-east Point in 1879 ai
ic
Bage 78.
succeeding   years.    The   Table   si
29,174;   1880,   25,862;   1881,
23,303 skins.
The   Commissioners further
taken in 1889 and 1890 as 15,076
snows
T7 QRQ
give
the
and
several
H79,
;   1882,
skins
5,007
51st Cong-., 2nd
Sess., Senate Ex
Doc. No. 49.
respectively, classing these as official figures.
A printer's error has placed two asterisks (*)
in the text of this page of the Commissioners' Beport, and has omitted the reference
at the foot of the page to which one of them
should apply. A brief examination would have
shewn that the figures referred to were those
in Mr. Goff's official Beport on the Bribyloff
Islands for 1890. The figures given by the
Commissioners are identical with those of the
Beport in question. On exaniining the figures
it will, however, be found that an error in ad*
dition has been made in the Congressional docu-
ment referred to; the total number of skins
derived from North-east Boint in 1890 should
read 6,592, instead of 5,007. This difference
has, however, no bearing on the subject under
discussion.
Pages 78, 79. I*1 respect to the question of the driving of
seals in 1879 from the vicinity of rookeries previously reserved and exempted from driving.—
Statements made on this subject (and with
special reference to Zapadnie and Polavina
rookeries) by the Commissioners are denied by
the United States. In making these statements
(though confirmation was obtained from other
sources), reliance was evidently placed upon the
official Beports of Mr. H. W. Elliott. In his
Beport bearing date 1880, Mr. Elliott, speaking
of Zapadnie rookery and the hauling-grounds in
XT 0
'   its vicinity, says:—
Op. Cit., p. 55. " The  ' holluschickie,' that sport here on the parade
plateau, and, indeed, over all of the western extent of the
English Bay hauling-grounds, have never been visited by the
natives for the purpose of selecting killing drives since 1872,
inasmuch as more seals than were wanted have always been
procured from ZoUoi, Lvkannon, and Lower Tolstoi points,
which are all very close to the village."
* In a Table printed in the Appendix to the United States'
Counter-Case (p. 422), the number of seals killed here in 1889 is
given as '28,794. The difference between this statement and the
official statement quoted bj the British Commissioners is not
explained. 102
Bespecting   Bolavina   he   says in the   same   Bages 78, 79.
Beport:—
" For the reason cited in a similar example at Zapadnie, Op. Cit., p. &6.
no ' holluschickie' have been driven from this point since
1872, though it is one of the easiest worked.    It was in
the Russian times a pet sealing-ground with them."
Appendix, vol. m,
Part III.
'' United States
No. 2 (1891),"
pp. 57-59.
Mr. Elliott investigated the circumstances in British Case,
1872-74, and revisited the islands in 1876.
When he again revisited the islands in 1890, he
states that he found that driving had been
extended to Zapadnie and Bolavina rookeries
in 1879, as quoted by the British Commissioners.
During all his stays upon and visits to the Bribyloff Islands, Mr. Elliott was specially engaged in
an official capacity in investigating the conditions
of seal life there for the United States. The
Commissioners were thus fully justified in  as
suming  that the  statements
made
official Beports were correct.
But the United States have, in the Appendix Appendix, vol. ii,
to their Case, published, for the first time, certain ?E'7111Jj127'
Tables by Mr. Max Heilbronner, Secretary of the
Alaska Commercial Company, relating to the
killing in each year from the various rookeries.
These are now referred to as contradicting the
tatements quoted by the Commissioners. It
may be that the Secretary of the Company has
possessed fuller information in this case than the
Government officials, but it is significant that
the official annual Beports of the Government
are not here referred to. In these Tables Bolavina
is designated "Half-way Boint," and Zapadnie
appears to be included under the general designation of " South-west Bay." As the numbers are
not in all cases given separately for these two
places, it is absolutely impossible to make a statement from the Tables of the actual number of seals
taken in each in every year, but the number of
recorded | drives " may be taken as an index of United States'
the increasing extent of driving from these places Case> APPend>x,
•     i   I mi i j.   i  ■ vol. ii, pp. 117-12}
m later years.    The number of drives as now
stated by the United States is as follows :—
am Mi ii ibmwwk3 Pages 78, 79.
1871
1872
1873
1874
1875
1876
1877
1878
1879
1880
1881
1882
1883
1384
1885
1886
1887
1888
1889
Year.
103
South-west Bay
(including
Zapadnie).
Hi
llf
(T
-way 1
oliivin:
r.int
).
1
1
I
1
3
0
6
0
7
1
8
1
6
3
f»
3
7
3
5
4
5
4
10
9
5
5
9
9
0
8
12
9
8
6
8
8
8
7
United States'
Case, Appendix,
vol. ii, p. 50.
The substantial accuracy of the remarks made
by the British Commissioners as to the increased
area of driving in later years, irrespective of
Mr. Elliott's very definite statements on the
subject, is further shown by the evidence of
Mr. H. H. Mclntyre, appended to the United
States' Case, though this evidence is intended
for another purpose, i.e., to explain away the
alleged deficiency in number of killable seals
which occurred in 1879.    Mr. Mclntyre says:—
" In order that the selection should be made from as
large a number as possible, and to satisfy the requirements
of the Treasury Agents in charge, who demanded that all
the rookeries be worked in regular rotation, we commenced
in 1879 or 1880 to ' drive' with greater frequency from the
more distant and less accessible grounds. .... With this
exception there was no change in the manner of conducting
the business from 1870 to 1889."
United States'
Case, Appendix,
vol. i, pp. 407,408.
Brofessor Allen also says :—
" During the last two or three years, however, and in
consequence of the decline from the former status of the
herd, it has been necessary to lower the age of seals
selected for killing, and also to redrive portions of the
herd.''
age i\j.
The Counter-Case of the United States next
states that " the question of over-driving and
redriving has already been fully treated of in the
Case of the United States." It is here passed
over practically without remark, except that, " if
x *
any occurred," it   was   directly due  to pel
[182]
2 £ 104
sealing. This admission confirms the statement
of the British Commissioners, to the effect that
the | quota " to be taken on the Bribyloff Islands
had become practically fixed, and that no regard
to seal life was had in endeavouring to fill the
" quota."
If any rights exist to seal on the high seas, it
is absurd to charge the pelagic sealers with the
results of the over-driving practised to secure
a " quota" on the islands. Even if no such
right exists, it shows an entire absence of proper
care, to have permitted damaging practices on
the islands in the endeavour to secure a "quota,"
before the question of rights and protection had
in any wav been settled.
Bage 79.
m
if
SJ.    ;.■  ' ,
11
mm
"Belagic Sealing."
It appears to be assumed by the United States, Pa°"e 80.
in dealing with pelagic sealing, that the statement that killing at sea is "indiscriminate"—
i.e., that it includes both sexes—is sufficient in
itself to condemn such sealing. The supposition that large numbers of males alone might
be killed without any prejudicial effect on seal
life, and which arose during the Bussian regime, United States'
t. i.«ii a. i.  n t.m    Oase, p. 131.
appears to have still a very firm hold.;   while r
the principles of " natural selection " which have
come to be recognized during the past twenty
or thirty years, with other scientific facts alluded
to in the Beport of the British Commissioners
and in the Counter-Case of Her Britannic Majesty,
appear to be disregarded in the Counter-Case of
the United States. Burther, the commonly recognized fact that, even in the case of domestic animals,
as well as in that of wild animals artificially
preserved, large numbers of females are usually
and necessarily killed, is ignored.
Care is further taken, in this first paragraph,
to endeavour to prejudice the Court by characterizing the evidence quoted by the British
Commissioners as | interested." It will be
observed, however, that the British Commissioners
have fully recognized and allowed for any motives
of self-interest which may have affected the
evidence obtained, and that in their endeavour to British Commis-
present the facts, they have not assumed as in- ^^62^63?
dubitably correct all the statements made to
them.
flfc 106
Bage 80.
Page 97 et seq.
It is next stated in the United States' Counter-
Case that the "three propositions," forming the
"apology'1 of the British Commissioners for
pelagic sealing, will be treated "in the order
of their importance as recognized in the Report.'*
No apology is offered or required for killing
animals at large upon the ocean, in the absence
of International Agreements prohibiting such
killing. As to the order followed in the United
States' Counter-Case, it appears to be based on
that referred to in paragraph 77 of the British
Commissioners' Beport, where, however, two propositions, not three, are formulated, and these two
are there stated to be the principal allegations
of those opposed to pelagic sealing, not to represent the order of importance in fact. The actual
order and wording of the headings found in the
British Commissioners' Beport under the chapter
on pelagic sealing is as follows:—
(a.) Origin and Development.
(b.) Methods.
(c.) Broportion of Seals lost.
(d.) Composition of Catch,
(e.) Buture of the Industry.
The first subject selected for attempted rebuttal
is thus expressed in the Counter-Case of the
United States:—
" 1. That the percentage of female seals in the
pelagic catch is not large.-
In the opening paragraph below this heading,
is found one of numerous instances of insinuations as to motive on the part of the British
Commissioners for which there is, in fact, no
justification. Bart of the evidence printed by
the British Commissioners is characterized as—
Bage 81.
" so-called ' evidence,' alleged to have been obtained from
Indian hunters, .... and in which there is a careful
avoidance of names of informants."
But on the next page, the statement by the
same Commissioners respecting the possible
existence of self-interest in some of the witnesses
examined by them, is endeavoured to be employed lilt
■spy I
WW
106
as a means of minimizing the importance of that      Bage 81.
part of: the evidence.
It is scarcely necessary to state that the British
Commissioners did not consider it their mission
to procure sworn evidence on all subjects investigated by them. Their mission was purely
scientific   and   practical,   and   on   referring  to
the first part of their Beport, it will be found British Commis-
„ ,, ,     ,, .      »    ,        rrvt        sioners' Report,
that   they   fully   recognized   this  fact.     They 23>
write:—
" It may be observed further, that iu obtaining evidence
from persons of experience or knowledge of the subject,
we adopted, in general, the informal plan of free interviews
and independent conversation. In this way we acquired
very distinct and trustworthy knowledge of their opinions
and experiences."
In so doing, they followed the same plan with
that adopted by their colleagues from the United
States, who similarly write:—
" Although the testimony gathered by us on this and United States'
other points was not given under oath, its value, in our Case, pp. 834, 885.
judgment, is not in the least lessened by that fact	
In short, the investigation was conducted precisely as it
would have been had the question been one of scientific
rather than diplomatic importance."
The only difference which must be noted
between the procedure of the British and United
States' Commissioners, is that indicated in the
last-quoted remark, i.e., that the United States'
Commissioners appear to have regarded the questions examined by them rather as of diplomatic
than as of scientific importance, though adopting
a scientific method of investigation.
There can be no doubt that in both cases,
if further particulars respecting the evidence
collected should be required, these can be
supplied by reference to the notes of interviews,
&c, held by the respective Commissioners at the
time; and it is submitted that statements made in
good faith, and respecting matters of fact or
evidence, should be accepted as true to the best
of the knowledge and belief of the' Commissioners
specially appointed to investigate the subject,
whether those of Great Britain or those of the
United States.
It is perhaps unnecessary again to draw
attention to the manner in which a few words,
jggjfcagajtgawi ii |gBMMam»a i\.wmmm*mm.\ lOI
Bage 81.
British Commissioners' Report,
para. 634.
separated from their context and incorporated in
a new sentence, may be made to convey a false
impression; but another instance of this occurs
in the particular page of the United States'
Counter-Case here dealt with. The British
Commissioners write:—
" And while it is not maintained that the evidence of such
practical sealers is entirely untinctured by motives of
personal interest, it must be evident that these men know
more on the subject than any others."
This statement is employed in the following
manner in the Counter-Case of the United
States:—
United States'
Counter-Case,
p. 81.
" The second class of testimony presented to sustain the
position of the Beport is obtained from sworn statements of
Canadian sealers, which the Commissioners admit are not
' entirely untinctured by motives of personal interest.'"
British Commissioners' Report,
para. 634.
See also para. 648.
On the next page we find the evidence cited
by the British Commissioners further characterized as admittedly untrustworthy.
Beferring to the proportion of females taken in
the pelagic catch, and evidence on this point presented by the British Commissioners, objection is
made on the part of the United States that this
evidence varies greatly in different cases. The
British Commissioners, however, particularly note
. this very point, writing:—
" It is only natural, and is entirely in accord with what
might be expected, that the proportions of seals by sexes
and ages should be found to differ very considerably
in different instances, even in a single year, in conformity with the dates or places in which the greater proportion of any particular catch was secured, and the kind
of seals in each case fallen in with' '*
And add:—
" The very fact that these statements, though taken at
different times, and while varying considerably from the
point of view of numerical proportions, tally very well in
the main, one with another, is an inherent proof of their
credibility."
Bages 81, 82.
The ensuing argument, directed against this
evidence, and in which it is endeavoured to contrast it with the statement that the methods and
practices on the Bribyloff Islands have resulted in
the existence of a large surplus of females, is based
[182] 2 B 108
on various assumptions, and is difficult to follow, Bages 81, 82
as these assumptions are not set out. The most
important of them, however, appears to be;—that
the proportion between males and females in the
catch of any vessel should represent the average
proportion of males and females existing everywhere, or at the least that a mean of the catches
should represent such average. The explanations
given in the British Commissioners' Beport (some
of which have just been quoted), are, however,
sufficient to show that the first is not a reasonable
hypothesis; while, as to the second, it is quite
conceivable that pelagic sealing might, as a whole,
be carried on at such times or in such places as
to include a relatively very great proportion of
any particular age or sex of seals.
The further statement made by the British Ba^e 82.
Commissioners, to the effect that an abnormal
abundance of females obtains at the present time,
is characterized as not substantiated by facts
advanced by the Commissioners. The facts relied
upon are, it is true, not recapitulated in this particular part of the Beport, but in Chapter IV
(p. 114 et seq.) ample details on this subject will
be found.
But this is still more clearly shown by a comparison of the possible number of skins of bearing
females contained in the whole North-west catch
for twenty years, as included in the British
Counter-Case. This possible proportion is much British Counter-
lower than that given in the statements of sealers Case' P-,2,°„° and
quoted by the British Commissioners, which
statements refer to the past few years only.
In addition, in the Counter-Case presented by ibid
the British Government, notice is taken of the
great number of barren females now found at
sea, a fact directly bearing out the evidence of
other kinds already obtained on this subject.
As to the nature of the " proof " olfered in the   Bages 82 83
Case of the United States respecting the number
of female skins contained in the pelagic catch, British Counter-
remarks have already been made in the British Case' p' l98etse7
Counter-Case such as to show that this is entirely
inconclusive and untrustworthy.
To corroborate the assertions made in the
Case of the United States, Captain llooper,
M. Malonavonski, Mr. Grebnitsky, and Messrs.
post, p. 110.
p. 251 et
seq.
sons    are    now   further
C.   W.   Martin   and
adduced.
The United States' revenue-cutter " Cor win," United States'
Counter-Case,
Appendix, p. <
109
Bages 82, 83. Captain Hooper, was occupied for twenty-six days
in hunting seals during the summer of 1892.
The whole number of seals killed, however,
appears to have been forty-one, a result so
small as to evidence either inexperienced or
incompetent hunters. Of this number, twenty-
nine are stated to have been females, a proportion which does not differ very largely from that
given by several of the pelagic sealers, but which
upon so small a total number means little as
compared with the experience embodied in their
statements.
It will further be observed, on turning to the
Table prepared by Captain Hooper, that nearly
half (nineteen) of the seals taken were obtained
within 20 miles of the Bribyloff Islands, and that
no data are given as to the time occupied in
the capture of seals at different distances from
the islands, such as to show what the respective
proportions of males and females might have
been in the case of commercial sealing. Neither
is any statement made to the effect that seals
were taken impartially, as met with.
M, Malonavonski is next quoted as affirming
that over 90 per cent, of 2,700 skins taken from
vessels seized in the vicinity of the Commander
Islands were those of females. His evidence on
this subject will, however, be found to be of the
most indefinite character.
Mr. Grebnitsky is next quoted as affirming
that 96 per cent, of the seals taken at sea are
females ! This gentleman has had long experience
as Superintendent of the Commander Islands,
and any statement made by him must be re-
ceived with respect, but we may be pardoned for
doubting such a statement as that here attributed
to him, particularly as it is unsupported by any
details of fact, and is entirely in opposition to
other evidence.
Messrs. C. W. Martin and Sons are next re-
coniection with the feTTe& to respecting the sex of a lot of 1,028
sealing industry, •*• ° *"""""■    SOBS
see British Counter- skins supposed by them to have been taken at
Case, Appendix, d received from Betropaulovski.     It is
vol. n, p. 233; ana > *
stated that these were part of the 2,700 skins seized
bv Bussian cruizers on the Asiatic side of the
Bacific, and upon which Messrs. Malonavonski and
Grebnitsky based their statements. Messrs.
Martin and Sons, however, give the percentage
of females at 83*76; of males, 1*66; and doubtful,
14r58, though M. Malonavonski had affirmed that
Bage 83.
Ibid., p. 374.
Respecting whose
United States'
Case, p. 267.
British Count
Case, p. 308. 110
an expert found no  difficulty in separating the       Bage 83.
male and female skins in the original lot of
2,700.
Lastly, certain depositions of a Mr. Behlow are
referred to in this connection, in which he professes to separate male and female skins contained
in certain relatively small catches brought to San
Brancisco in 1892.
It will subsequently be shown that the state- See Appendix 11,
ments and depositions of this witness are wholly post
untrustworthy.
Beviewing the evidence brought forward on Bage 84.
the part of the United States in their Counter-
Case on the subject of the proportion of females
in the pelagic catch, we may, at the least, set
the statements of the few witnesses cited, against
those of a like number of witnesses representing a
similar number of seals among the numerous
witnesses cited by Great Britain. The whole
number of seals spoken of by Captain Hooper
is too small to enable any just deduction to be
arrived at; while the other witnesses referred to
by the United States are, without exception, interested in the industry of sealing upon the
breeding-islands, and, therefore, it may reasonably
be supposed, likewise interested in decrying all
sealing at sea.
It has already been stated (p. 104) that the
killing of females per se is not admitted to be
reprehensible, while the complete analysis of the
skins resulting from the pelagic catch during the
past twenty years, shows conclusively that not
over 38 per cent, of these could by any possibility
have been bearing females.* It has further been
stated that one of the most important objects of
any regulations which may be proposed is that
of eliminating the last-mentioned element from British Commis-
the pelagic catch. sioners' Report,
1       ° . para. 80.
Under the circumstances mentioned, it can be
of little utility to pursue in detail any controversy
respecting the composition of various individual
small lots of skins such as there cited on the
part of the United States, even if the sexes in-
* At p. 200 of the British Counter-Case this figure is given at
50 per cent., but the calculation there given is based upon the
assumption of only 15 per cent, of the catch being males, and
this percentage occurring uniformly throughout the whole bulk.
As a matter of fact, there are 20 per cent, of the catch which
are too large to be the skins of females. The figure above
given is based on a recalculation admitting this correction. Ill
Page 81.
O
eluded in them had been correctly determined,
and the subject may rightly be dismissed here.
The second proposition formulated for denial
by the United States is in their Counter-Case
presented as follows:—
" 2. That pelagic  sealing  in Behring   Sea  is  not
so destructive to seal life as pelagic sealing in the
North Pacific."
British Commissioners' Report,
paras. 138, 648.
British Commissioners' Report,
paras. 645-647.
British Counter-
Case, Appendix,
vol  ii, pp. 14-20.
Bage 85.
British Counter-
Case pp. 198, 251-
257, 145.
The statement here attributed by the United
States' to the British Commmissioners was not,
however, made by them. They have stated that
the spring catch was more destructive than any
other in proportion to the number of skins
obtained; but the spring catch is not the equivalent of the entire catch made to the south of
Behring Sea, which embraces much of the summer, and lasts till about the end of June. The
statement actually made by the British Commissioners, as employed as a basis of argument in
the United States' Case, is therefore not only
inverted, but substantially changed.
The circumstance that practically no gravid
females are taken by pelagic sealers in Behring
Sea is characterized as an " assumption " of the
British Commissioners, though it rests on ample
evidence.
The question as to the killing of females in
milk in Behring Sea, and the effect of this upon
pups on shore, next alluded to in the United
States' CounterrCase, will be discussed in connection with the more detailed treatment of this
subject found in following pages of the Counter-
Case of the United States.
The argument advanced in this page of the
United States' Counter-Case against the general
proposition at the head of this Chapter, depends on
a series of assumptions, to discuss which is unnecessary, because they have elsewhere been treated at
length. The fallacy that the killing of females
is in itself reprehensible appears to underlie the
statements, but it is in addition apparently
assumed that all females met with at sea are fertile,
i.e., that there are no virgin or barren females;
that in stating the period of gestation of the fur-
seal as nearly twelve months, full twelve months
is meant; that, for instance, eleven months would
[182] 2 G 112
not be " nearly twelve months," that all females
are covered on land, and that a female just
fertilized may be described as a " gravid female,"
the injury to seal life being equally great in the
killing of each class.
It is next asserted that the | designed implication I of certain statements made by the British
Commissioners is to show that " very few nursing
females are taken  by pelagic sealers,"  and is
based on " pure assumption," a reference being
given to para. 6±9 of their Beport.     But in the
immediately preceding paragraphs of the Beport,
proof has been adduced to this effect, and further
proof is brought forward and discussed in the
Counter-Case of Great Britain and its Appendices
to the same effect, and to the effect that such
few females in milk as may be killed in Behring
Sea are often | running dry."   It is also shown
that their presence at  sea  may  be accounted
for   by  various   causes   of    disturbance   upon
the   breeding-islands,   in most,   if   not   in all
cases.    The evidence of Captain Hooper, referred
to in this connection by the United States (on
the strength of the forty-one seals killed by him),
in showing that a considerable proportion of seals
in milk killed were 200 miles from the Bribyloff
Islands, goes far to prove that at least this proportion of such seals could no longer have had
any interest in or regular connection with those
islands, and tends  to substantiate  the remarks
made by the British Commissioners, and those in
the   Counter-Case   of   Great   Britain,   on   this
subject.
On this and following pages of the United
States' Counter-Case (to p. 93), an extended
notice is given to the investigations of the
British Commissioners on the subject of the
mortality of young seals in 1891. Care is, however, first taken to describe these examinations as
| cursory." The Commissioners are represented
as endeavouring to "support a position," and it
is added:—
"It is evident, from the efforts made and the theories
advanced to explain this mortality that the Commissioners
considered the presence of these bodies prima facie
evidence of the fact they endeavour to disprove."
Bage 85.
British Counter-
Case, pp. 218,219.
Ibid., Appendix,
vol. ii, pp. 22, 23.
United States'
Counter-Case,
Appendix, p. 217.
British Commissioners' Report,
para. 814.
British Counter-
Case, pp. 218, 219.
Bage 86.
Introductory remarks of the above character
scarcely lead to the belief that any impartial
discussion of the facts noted and commented
on  by the British  Commissioners is intended. Bage 86.
This is fully borne out by what follows.    It is
stated:—
"These officials [the Commissioners] have, through
some strange circumstance, been led into the belief that
they were the first to observe this mortality among the
pups on the rookeries, from which belief they draw the
inference that ' the death of so many young seals on the
islands in 1891 was wholly exceptional and unprecedented.' "
United States'
Case, Appendix,
vol. ii, p. 19.
The explanation given in para. 346 of the
British Commissioners' Beport is sufficient to
show that, in so far as they could ascertain by
inquiry upon the islands in 1891, they were the
first to observe and comment on the mortality in
question. But if further evidence be required,
it will be found that Mr. J. Stanley-Brown
says : —
"By the time the British Commissioners arrived
[28th July] the dead pups were in sufficient abundance to
attract their attention, and they are, I believe, under the
impression that they first discovered them."
In a foregoing part of the same paragraph,
however, Mr. Stanley-Brown had said :—
"In the latter part of July 1891 my attention was called
to a source of waste, the efficiency {sic] of which was most
startlingly illustrated."
But Mr. Milton Barnes, special employe" of the
United States' Treasury on St. Baul Island, is
(except in regard to date) even more definite on
Ibid., p. loi. this point.  In a deposition furnished by him, and
included in the Appendix to the United States'
Case, he says :—
" One day, during the latter part of August or fore part
of September last (exact date forgotten), Colonel Joseph
Murray, one of the Treasury Agents, and myself, in
company with the British Commissioners, Sir George
Baden-Powell and Dr. Dawson, by boat visited one of the
seal rookeries of that island, known as Tolstoi or English
Bay. On arriving there our attention was at once
attracted by the excessive number of dead seal pups, whose
carcasses lay scattered profusely over the breeding-ground
or sand beach bordering the rookery proper, and extending
into the border of the rookery itself. The strange sight
occasioned much surmise at the time as to the probable cause
of it."
Mr. Barnes then states that some days afterwards  he went with Mr. Bowler to Bolavina it
114
rookery, where he found similar conditions with       Bage 86.
respect to mortality of young  to prevail.    He
adds:—
" This condition of the rookeries in this regard was for United States'
some time a common topic of conversation in the village Case, Appendix,
by ■ 11 parties, including the more intelligent ones among
the natives," &c.
H
■■mm
The evidence referred to on this page of the Page 87.
United States' Counter-Case to endeavour to
show the occurrence of an annually increasing
number of dead -pups since 1885, has already
been treated in the Counter-Case of Great
Britain, p. 208 et seq., and has been there shown
to be wholly inconclusive in that respect, and to
rest on erroneous statements.
The extracts above given are alone sufficient
to show that the mortality in 1891 was unprecedented, as stated by the British Commissioners;
and that it had not existed, as affirmed by the
United States, for " several years."
The statement as to the existence of the
opinion on the islands that pups had died
in former years because of the killing females
at sea, is endeavoured to be supported by the
retrospective affidavits already dealt with in that
part of the British Counter-Case above referred to.
Much stress is here laid on the discovery of Bages 88, 89.
two passages in previous Beports, in which
H. H. Mclntyre and J. H. Moulton have made
general statements to the effect that killing
females at sea resulted in death of pups on the
islands. No facts or instances are cited in support
of these statements, to which no importance was
attached at the time, and to which attention has
only now been drawn. They are now brought
prominently forward for the purpose of maintaining that the cause of the mortality of pups
in 1891 alleged by the United States had long
been recognized.    It is there said :—
"This explanation [death of mothers] of the cause of
death of pup seals is not recognized by the Beport except
to contradict it/'
Bage 89.
Mm
As a matter of fact, the explanation referred British Commis-
to is discussed in some detail, and is found to be HBffiBfl
untenable by reason of the date of the mortality,
and on other rational and fully explained grounds.
Bespecting the causes of death of young suggested as probable by the British Commissioners :
(a.) This is  described in the United  States'
Mr
VQ§&&&^wnKflmsr:4 115
Page 89.
United States'
Case, p. 216.
Bage 90.
British Commissioners' Report,
paras. 331—333.
British Counter-
Case, p. 113.
Bages 90, 91.
Counter-Case as " driving and kiBing of mothers.**
But while the British Commissioners state that
it is quite possible that females were driven from
their young, and—
" though turned away from the killing-grounds ....
never afterwards found their way back to their original
breeding-places, but either went off to sea or landed elsewhere,"
they do not allege that the females so driven
were killed. Messrs. J. Stanley - Brown and
W. H. Williams are referred to as stating that
no drives were made (in 1891) nearer to one
of the rookeries (Tolstoi) on and about which
dead pups were specially observed by the British
Commissioners   (in
1891)
than   an   estimated
distance of a quarter of a mile. No evidence is
given to show that the collection of the drives
was limited to this distance from the rookery,
nor is it stated that either of these gentlemen
ever saw one of the drives of 1891 collected.
Although the drives taken from the vicinity of
Tolstoi are recorded as drives from " Middle Hill,"
it must be remembered that the slopes of Middle
Hill and Tolstoi are continuous, and the drivers
doubtless go where the seals they were instructed
to procure could be obtained.
(b.) Epidemic Disease.—This, it is stated, is
treated of in the United States' Case. It is,
however, in the place cited, merely stated
that no sickness had been previously observed
among the seals on the Bribyloff Islands, and
that no dead adults were found. The British
Commissioners themselves make a statement
identical with the first (para. 32). As to the
second, it does not necessarily follow that an
epidemic fatal to young animals should be equally
fatal in the case of adults.
(c.) Crushing of Pups in Stampedes.—The assertion made by the United States that no evidence
is given by the British Commissioners under this
head is incorrect. The Commissioners quote
statements from Bryant (Allen's Monograph) and
Baron Nordenskjold as to the facility with which
stampedes may be caused," and their results. If
further evidence as to the general timidity of the
animals is required, this will be found in the
British Counter-Case.
(d.) Raids.—The possibility of the occurrence
of raids is  not directly denied by the United
States,   though  statements  are  made  for   the
ri82] 2 H 116
s.R: 111
HSj.iffl
:|. «!
purpose of minimizing their probability.    It is  Bages 90, 91.
further asserted that as the dead pups were found
at several rookeries, several distinct raids would
be required to   account   for   their   occurrence.
It will be found, however, that large numbers British Commis-
„   , t i i i sioners' Report,
of dead pups were discovered upon two rookeries       s> S46 r?47'
only, both on St. Baul Island, as explained by the
British Commissioners.
The facility with which raids might be made
without any knowledge on the part of the
guardians of the islands is illustrated, however,
by the following facts referring to raids made in
1890 and 1891, when more than ordinary precautions against raids were taken.
The master of the " Challenge" and two of his British Counter-
i -i i.   i        n. -j cu.    n 0ase» APPendix,
crew describe at length a raid on  ht.  b-eorge vol.ii, pp. 182,184.
Island, of which nothing was known at the time
it was made.
One of the crew of the | Borealis " gives an ibid., p. 188.
account of the raid of that vessel on Zapadnie
Bookery, St. Baul Island, while a cutter,
whose lights could be seen, was anchored within
2 miles of them. The raid was successfully made
without anything being known of it on the
islands. The same rookery was raided in the
autumn of 1890 by the " Adele," and nothing was
known of the raid by those on the islands.
Colonel Murray, in an affidavit, refers to the United States'
two first-mentioned raids as if the people on the Counter-Case,
Appendix, p. 879.
islands had been cognizant of them at the time, British Counter-
and as if one vessel had been at once seized, and Case, Appendix,
the other but a  short time afterwards, but a See also United
reference to the passages cited will show that the gates' Case>
Appendix, vol. i,
raids mentioned only became known to the autho- p. 503.
rities, indirectly, months after their occurrence.
The bodies of pups examined by Dr. Ackerly      Bage 91.
were,  as  he  admitted,   too   much   decomposed
for a correct autopsy.    They were, further, those British Commis-
of pups which had died in September 1891 when sioners' Report,
v i •      i •     d i_   •        o paras. 352, 353.
no sealmg-vessels remained in Behring Sea.
The body of a pup found dead by the British Bi paras. 353
Commissioners was  examined by Dr. Giinther. 354,
This was in good condition, preserved in alcohol.
Dr. Giinther was unable to decide whether the
absence of food or the condition of respiratory
organs was the primary cause leading to death.
Though it was at the request of Mr. Stanley- United States'
Brown that Dr. Ackerly's examination of the dead Case.» Appendix,
pups was made in 1891—and he was the Treasury
Agent in charge of the Bribyloff Islands in 1892,
and admits that in that year the number of dead
nm 117
Bage 91.
United States'
Counter-Case,
p. 388.
pups on Tolstoi rookery was beyond the normal—
no record is found in his affidavit of an examination in 1892 of any of the dead pups by any
authority. He seeks, however, to account for
the unusual mortality in 1892 by an entirely
novel explanation, in which he states that the
pups in learning to swim had become exhausted,
and, wandering off and lying down to rest, were
overlooked by their mothers. A comparison of
the 1892 photographs of Tolstoi rookery with those
of 1891, show that the dead pups covered approximately the same area in both years, and were the
explanation now offered by Mr. Stanley-Brown the
true one, it would also account for the mortality
among the young seals in 1891. Mr. Stanley-
Brown, however, states that—
Ibid., p. 389.
British Counter-
Case, Appendix,
vol. i, p. 146.
"the location and topographic character of this rookery
have no counter-part elsewhere on the island;"
but as dead pups were reported to have been
found in large numbers on another rookery on
St. Baul in 1891, and Mr. Macoun reports as
many on Bolavina rookery as on Tolstoi in 1892,
Mr. Stanley-Brown's explanation can hardly be
the true one.
A glance at the photographs which accompany
the British Counter-Case, will show that the
ground on which dead pups are to be seen on
Tolstoi rookery extends along practically the
whole front of that rookery, and at the time the
photographs were taken nearly all the living
seals, old and young, were behind this area, so
that Mr. Stanley-Brown's statement that he has—
" seen mother seals go up the entire slope seeking their
pups "
may be taken as strictly true; but as they must
have gone up this slope in any case, it can hardly
be taken as evidence that the young ones had
wandered away and so been lost. But if it be true
that the pups on this part of the rookery-ground,
which must be passed over by all seals going to
any other part of it—
" he down to rest, and sleep and are overlooked by their
mothers returning from the sea,"
no better explanation could be given of the cause
of the mortality among young seals on those parts
of the rookeries, on some of which it is not as
in this case necessary for the mothers to cross
the ground upon which the dead pups occurred.
»v? 118
The statements as to a great decrease in the       Bage 91.
number of dead pups in 1892, as compared with British Counter-
1891, made by United States, are in direct conflict gj* ^p^'diXf
with the observations of Mr. Macoun, and are vol. i, p. 146.
contradicted also by the photographs taken in
1892 when compared with those of 1891.
Mr. Stanley-Brown is quoted on this page of United States'
the United States' Counter-Case as saying:—
Counter-Case,
p. 385.
" Dead pups were as conspicuous by their infrequency
in 1892 as by their numerousness in 1891."
mm
mm
Counter-Case,
p. 388.
This gentleman, however, left the Bribyloff
Islands on the 14th August, 1892.
Dead pups were first observed to be numerous British Counter-
and photographed  on Tolstoi by Mr. Macoun ^"iffi^'
19th August;   though photographs  taken   8th
August   by   Mr.   Maynard    show    that   large
numbers of dead pups were lying on that rookery
at that date.
Mr. Stanley-Brown admits that in 1892 the United States'
number of dead pups on this rookery was " beyond
the normal." He devotes more than a page of his
affidavit appended to the United States' Counter-
Case to endeavouring to explain it, in the manner
already noticed.
Colonel Murray, next quoted in the United
States' Counter-Case, savs:—
11 went over the rookeries carefully looking for dead Ibid., p. 378
pups. The largest number on any rookery occurred on
Tolstoi, but here, as on the rookeries generally, but few of
them were to be seen as compared with last year. This
was the first time in my four seasons' residence on the
islands that the number of dead pups was not greater than
could be accounted for by natural, causes."
Colonel Murray gives no date. That his visit
to Tolstoi was before the date of the departure
of Mr. Stanley-Brown from the islands is evident,
as Mr. Stanley-Brown, as above noted, describes
the mortality as beyond the normal.
Mr. A. "W. Lavender's statement as to the prac-       Bage 92.
tical absence of dead pups on St. George in 1892 British Counter-
coincides with Mr. Macoun's observations.    The Case' Appendix,
vol; i, p. 146.
same euaoumstaiace wa$ particularly observed in
xi on •     I H' British Counter-
tne   case   oi   the   similar   mortality   m   1891. Case, p. 2is.
And such mortality is referred to in none of the British Commis-
affidavits in Appendix to  United  States'  Case sionerf^ePort>
* para. 346 et seq.
which refer to St. George Island in that year.
This circumstance, in fact, strongly supports the
belief that the mortality in neither year could
have been due to the killing of mothers at sea.
KVfflFTWiPllirMili i W^^vwrnwasmwimr 119
Bage 92.
British Counter-
Case, Appendix,
vol. i, p. 145.
Brofessor Evermann's statement, next quoted
in- the United States' Counter-Case, as to the
number of dead pups on Bolavina rookery, refers
to a visit made by him to that rookery early
in the season (22nd July), in company with
Mr. Macoun. His statement of number seen at
that time practically agrees with that given by
Mr. Macoun, who says—
Joid., p. 146 "Professor Evermann, .... who was with me at this
time, and who counted 129 dead pups, thought, with me,
that, if so many were to be seen at the outer edge of the
rookery-ground, the whole number must be very great, and
about a month later (20th August) I had ample proof that
this was the case."
Ibid.
United States
Counter-Case,
pp. 264-271.
Bage 93.
British Counter-
Case, Appendix,
vol. i, p. 148.
Mr. Macoun, however, further says that later
in the season there were nearly or quite as many
dead pups on Bolavina rookery as on Tolstoi; and
a native who was with him at the time of his
visit told him that there were then more dead
pups on Bolavina than were on Tolstoi in 1891.
Brofessor Evermann made but this one visit
to Bolavina (22nd July). He visited Tolstoi
rookery the following day (23rd July), and
finally left St. Baul Island (24th July) more
than two weeks before the time dead pups in
considerable number were first noted on Tolstoi
rookery.
The statement made in the United States'
Counter-Case to the effect that sealing-vessels
were not present in Behring Sea in 1892,
coincides with that" specially adverted to in the
British Counter-Case (p. 213); but it is maintained that the recurrence of a like mortality of
pups in that year, absolutely confirms the deduction arrived at by the British Commissioners in
1891, that this could in no way be connected
with pelagic sealing; and that it therefore cannot
be interpreted in the manner now endeavoured
to be done in the Counter-Case of the United
States.
The alleged increase, next affirmed in the United
States' Counter-Case, in number of dead pups
on the Commander Islands in late years, is not
confirmed by Mr. Macoun's inquiries on these
islands made in 1892. No such increase was
admitted, by those on the islands, to have
occurred, though pelagic sealing had then for
the first time been practised to a considerable
extent in the vicinity of these islands
[182] 2 I 120
111
It is next stated in the United States' Counter-
Case that—
" the destructiveness of the Behring Sea catch, as
compared with that in the North Pacific, is further shown
by the relative sizes of such catches."
Bages 93, 94.
W Mi
**tf
KW
With the object of endeavouring to prove the
assertion just quoted, attention is drawn to
certain Tables contained in the Appendix to the
United States' Counter-Case, compiled from
statistics given in the British Commissioners'
Beport. In these Tables the annual totals of
skins are correct, and the proportions taken
within and without Behring Sea are also
correct, — the number of vessels is correctly
given in one instance; but, as the average
catch per vessel and per day for the total
number of years has apparently been obtained
by the erroneous method of averaging the annual
averages given bv the Commissioners, none of
these figures are correct. The following corrected
Tables are therefore presented to take the
place of those given in the United States'
Counter-Case :—
United States'
Counter-Case,
Appendix, p. 411
Tables of Catches.
mm
Spring and Coast Catches.
Year.
Number of
Vessels.
Number of
Skins.
Average
Number per
Vessel.
Average
Number per
Day.
1889
1890
1891	
22
29
42
12,371
21,390
20,727
562
737
493
4-3
5-4
36
Totals and averages for three years
93
54,488
586
4-3
Mm
£«#
Behring Sea Catches.
Year.
Number of
Vessels.
Number of
Skins.
Average
Number per
Vessel.
Average
Number per
Day.   '
1889	
1890
1891   ..    ..    m   \\
16
23
44
15,497
18,165
28,888
968
789
656
16-1
13-1
10-9 .
Totals and averages for three years
83
62,550
753
12-5
g^SSMW
vwsmvmmr 121
Bages 93, 94.
United States'
Counter-Case,
Appendix, pp. 24C,
247.
Bage 94.
But when it is attempted to deduce an
average take per diem for each vessel from
these figures, several important considerations
are lost sight of. It is particularly to be
noted that the conditions are such that the
sealing voyages made to the south of the Strait
of Buca in the winter and early spring would
not in themselves be remunerative. They are
made because no other occupation offers for
the sealing-vessels, while a certain advantage
is to be gained by going early to sea, and thus
securing the pick of the pelagic hunters. The
diagram facing p. 22 of the British Commissioners' Beport illustrates this very clearly. The
circumstances are further explained in para. 583,
and in para. 132 of the same Beport, where it is
shown that only the months of May and June
are those in which large numbers of skins have
so far usually been taken outside Behring Sea.
Thus, a daily average based on the whole time
during which a sealing-vessel is at sea, of which
time some months are, as a rule, barely remunerative, does not afford any fair comparison of
the number of seals taken in a given number
of days without and within Behring Sea, nor of
the I destructiveness" of the catch in the two
areas. Unfortunately, the methods of conducting
the industry have not enabled data to be obtained
upon which a comparative Table of monthly
catches of seals at sea can be drawn up.
The third proposition formulated by the United
States for rebuttal is :—
-' 3. That the waste of seal life resulting from
pelagic sealing is insignificant."
Bages 94, 95.
British Com-
Statements collected by the British Commissioners, and here referred to, which assert the
enormous loss of seals by pelagic hunters, form
part of a general discussion of losses. The
British Commissioners  explain that they have
missioners'Eeport, ^een ftt      ing to  coueot and  examine all the
pp. 82, 614. x
statements upon which a theory of great losses
at sea have been based up to the date at which
their Beport was written. They have summarized,
these in para. 614 of their Beport, thinking it
better to trace such assertions back to their
sources, rather than to depend on the rhetorical
expressions of newspapers, &c, which afforded
at the time the only other basis for the allegations of extraordinary losses at sea. 122
In    proceeding    to   set   out   the   testimony       page 95.
of    persons    who    have    actually  engaged   in
pelagic  sealing,   the   Commissioners  point  out
that the interest of such persons is a factor to
be allowed for; but they also point out that the
statements are given over the signatures of those British Commis-
, .        ,, . „ , -1 ,     ■■      sioners' Beport,
making them, m a formal way, and are to  De paras 615-626.
considered of " a much higher order of accuracy "
than those before referred to.    Advantage is,
however, taken, in the Counter-Case presented by
the United States, of this critical remark on the
part of the British Commissioners, to designate
the evidence as that of "interested parties."
The assertion is next made in the United States'
Counter-Case that—
" the Commissioners tben present [on the subject of losses
of seals at seaj a number of statements collected from inexperienced individuals."
A reference to the paragraphs of the Commissioners' Beport thus alluded to by the United
States will show how entirely incorrect the assertion as to "inexperience "is.
It is scarcely necessary to pursue in detail the
discussion of the facts respecting losses at sea,
on this page of the United States' Counter-Case.
A few observations may, however, be made
upon it.
In introducing their Table, showing the actual
numerical losses of seals by a number of sealers,
the British Commissioners do not say—
Bage 96.
I an endeavour was  then made to
tion/" &c.
elucidate the ques-
The statement made is as follows :—
I It has been  endeavoured, however, still further to British Commis-
elucidate the question here considered by tabulating all the sioners' Report,
well-authenticated   statements   referring   to   the   actual ^ara'
number of fur-seals shot, and the proportion lost."
Again, the white hunters do not—
I affirm that they lose but 4 per cent, of the seals they
km."
This percentage is a. calculation based on the
numbers of seals shot and lost, or shot and
recovered, as stated by the hunters.
The affirmations as to the proportion lost are
contained in the preceding statements, with
respect to the value of which a remark made in
the opening lines of para. 627 refers. The
numerical statements here combined and
tabulated represent nearly 10,000 seals, and no 123
Bage 96.
British Counter-
Case, Appendix,
vol. ii, pp. 4, 5, 6.
criterion of similar accuracy had heretofore been
offered on the subject under discussion. If any
doubt remained, in view of this Table, as to the
small percentage of seals actually lost, it is
entirely removed by the. still more extended
Table of the same kind printed in the Appendix
of the British Counter-Case.
It is here further stated in the United States'
Counter-Case that—
" the Table entitled ' White Hunters' is averaged, while
the Table entitled ' Indian Hunters' is not, for the obvious
reason that these Indians appear to have lost twice as many
seals as the whiles, which is in direct contradiction of the
statements quoted in the Beport," &c.
■ The suggestion as to the reason why the Table
entitled 1 Indian Hunters" is not averaged is
whoUy incorrect. In the first place, it includes but 389 seals in all, being a number
too small to afford an average of much value;
while, of this number, 184 (taken by three
witnesses) are stated to have been secured without
any loss. But as a matter of fact, if a correct
percentage be struck from this small Table, it
will be found that in taking 389 seals not more
than 14, or 3'6 per cent., were lost by
sinking. The statement made in the United
States' Counter-Case that these Indians lost 8
out of every 100 has evidently been arrived at by
adding together the few percentages that are
given and dividing the total by the number
of hunters, a method clearly erroneous.
Building upon this error, it is next attempted to
show, that if Indians lose 8 (3*6) per cent, of the
seals they kill, the white hunters lose five times
as many, or 40 per cent, of the seals they kill. In
support of this Captains Warren, Betit, and
others, who say that Indians lose less than 1 per
cent, while white hunters lose about 5 per cent.,
are quoted; but on referring to the affidavits
made by these gentlemen, it will be seen that
the loss bv Indians mentioned by them, refers to
seals killed with the spear, and such losses are not
Report, Appendix, properly comparable with those resulting from
the use of the gun. The Table of losses by
Indians presented by the British Commissioners
shows their loss when using shot-guns.
Attention is then called by the United States,
on the next page of their Counter-Case, to the
circumstance that it is not definitely stated
in each case by the British Commissioners
whether the seals lost are those lost by sinking
mm 2 K
British Case
Appendix, vol. iii,
" United Stales
No. 2 (1890),"
p. 355; British
Commissioners'
Bage 97-
w
1 EH
B
mi
m
124
before recovery, when killed, or whether such as     Bage 97.
may have escaped after having been wounded are
included.    The available data were unfortunately
not sufficient to determine this with accuracy in
all cases, but in view of the statement.advanced
in the Case of the United States, to the effect United States'
that 66 per cent, of all seals killed are lost by     se'p'
sinking before recovery,   the   element of  uncertainty thus introduced is too minute to be of
importance. As it stands, the Table is sufficient to
show that the statement made on this subject in
the case of the United States is wholly incorrect..
In later statements of sealers care has, however, been taken to separate the two sources of
loss above alluded to, and in eliminating the loss
due to the escape of wounded seals, that resulting
from sinking alone becomes reduced (on a much British Counter-
larger number of seals) to about 3*1 per cent.
A further reference is then made by the United
States to the omission by the British Commis- See remarks in
j. ,   ,. ,. ,. ,,      , £ British Counter
sioners  of any  statistics respecting the loss or Qase> p_ ] 9 ] #
wounded seals which may escape capture.    This
is a subject upon which it is evidently impossible
to obtain precise figures.    The  Commissioners'
reference in this connection to the  number  of
shots found in seals killed upon the Bribyloff
Islands is next criticized.    It is said:—
Case, Appendix,
vol. ii, p. 6.
I The notion tbat the carcass of every seal killed on the
islands is searched for encysted bullets is sufficiently
absurd, but it seems to be assumed in the reasoning of the
Commissioners."
Bage 98.
It will, however, be found, on referring to this British Commis-
allusion by the Commissioners, that allowance was !!J°!!.erfto^eport'
made for the causes referred to by the United
States.
In later statements  published in connection British Counter-
with  the  British  Counter-Case,  care  has been Case' PP-192> l93
taken   to   obtain  all  information   possible   on
the subject of seals shot and wounded, and which
escape; and though, as above noted, it is a subject
not susceptible of accurate numerical treatment, Ibid., Appendix,
the number so lost is found to be exceedingly vo1'|pp" IM3,
small.
Still further, as stated in the British Counter-
Case, it is not known that the loss of a certain
proportion of wounded wild animals has ever
previously been advanced as a reason for the
disuse of the gun as a means of taking such
animals.
British Counter-
Case, p. 191. 125
Page 98.
United States'
Counter-Case,
Appendix,
pp. 394, 210.
Ibid., p. 895.
Ibid., p. 208 et seq.
See British Counter-
Case, Appendix,
vol. i, p. 155.
British Counter-
Case, Appendix,
vol. ii, p. 134.
United States'
Counter-Case,
Appendix, p. 234.
Bage 99.
Mr. Townsend, who was attached to the
steamer " Corwin " during the summer of 1892,
volunteered to act as seal-hunter, and is quoted
in support of the assertion made by the United
States, that the number of seals lost by wounding
is great. His experiments as a "pelagic sealer"
are too few and too unskilled to afford any useful
evidence on the subject.
A part, at least, of Mr. Townsend's loss by
wounding is accounted for when he says, referring
to the wounded seals which escaped :—
" At first' I blamed the ineffectual firing of the cartridges, but the cartridges proved all right as soon as I
learned to aim at the head, and not at the animal as a
whole."
An analysis of Captain Hooper's Beport, and the
Table accompanying it, shows that between the
27th July and the 10th August, when one of the
seal-hunters carried by the | Corwin " was in Unalaska, and the other was unwell, Mr. Townsend and
a quartermaster acted as hunters and took eighteen seals, losing four by sinking. These four were
killed from the dingy, a small, clumsy ship's boat,
in no way adapted for seal-hunting, in charge of
a man with one day's experience as a seal-hunter.
Between the 10th August and the 21st August
eighteen seals were captured by Hodgson the
seal-hunter; in taking these he lost but one by
sinking, of which he says: " That one I shot at a
long distance, from 45 to 50 yards." Bive other
seals were taken during this time, but by whom
is not stated, presumably by Mr. Townsend or the
"quartermaster," and one was lost by sinking.
Captain Hooper then says: | Our total loss by
sinking and wounding was 36 per cent." But
in what way a knowledge was gained that any
seals were seriously wounded, or wounded at all,
and so lost, is not stated. No reference is made
in the United States' Counter-Case to the sealing
operations carried on by the United States' ship
"Bush" during the month of August, which
resulted in the taking of seven seals, with none
lost by sinking, though five were reported to
have been wounded; how this was known is not
stated.
In view of such statements as those above
noticed, the United States here sum up by denying
—(1) that the percentage of female seals in the
pelagic catch is not large; (2) that pelagic
sealinj
in Behring Sea is
not as destructive to
fffJTCI
r^ssmsii 126
seal life as in the North Bacific; and (3) that
the waste of life resulting from pelagic sealing
is insignificant.
Bage 99.
" Second."
" Matters upon which the Beport relies to
establish conclusions advanced therein,
and to formulate the begulations recommended, which matters have not been
dealt with in the case of the united
States."	
"Habits op the Bur-seals."
if
M
" 1. That the Alaskan Seal-herd has a definite
winter habitat."
The title above quoted, given to this section of Bage 100.
the United States' Counter-Case, which is stated
to be in discussion of a proposition conveyed in
the Beport of the British Commissioners, contains
the expression " Alaskan seal-herd," which it has
been pointed out in the British Counter-Case is
in its terms wholly misleading, and is not
admitted as an appropriate name for the fur- British Counter-
seals of the eastern part of the North Bacific.        Case, P*119#
It is to be noted that the migration chart
(No. 3) originally presented with the United
States' Case is incorrect, as is shown by the
changes introduced in the new chart now substi-
tuted for the first in the Counter-Case of the
United States. This latter chart approximates
more nearly to that originally presented by the
British Commissioners, but in the bight of evidence obtained by these Commissioners and that
afforded by additional facts set forth in the
British Counter-Case, it still requires further
correction.
It is particularly to be noted, that neither the
migration charts produced by the United States
is   vouched   for   by   any   scientific   or   expert
authority.    They are  said merely to be "com-
j pilations based on evidence," &c.    Though both
charts (with other maps contained in the United
States' Case and Counter-Case) bear the signature
of  T.  C.  Mendenhall,   Superintendent   of   the
United States' Coast and Geodetic Survey, this
purely formal and is attached as a matter of 127
Page 100.
Bage 101.
routine to maps issued from the Department in
question, and not as in any way vouching the
accuracy of the data from which the maps are
compiled.
In this respect, the map prepared and presented
by the British Commissioners differs widely. It
is explained and adopted by them in their Beport
as correct to the best of their knowledge and
belief. As the British Commissioners make
themselves thus personally responsible for their
map, the remarks made in the United States*
Counter-Case as to the absence of detailed
evidence upon which the map is based are not
justified.
The peculiar method of argument employed in
the United States' Counter-Case, by which any
deduction arrived at by the British Commissioners is characterized as a " theoretical proposition " or S position," and is discussed before the
facts obtained are noticed, is again well exemplified on this page.
It is thus under this head, in the first place,
asserted by the United States that—
" the theoretical proposition of an animal possessing two
homes is contrary to what has been observed in respect to-
the habits of animals in general."
British Counter-
Case, p. 152.
" Forum," November 1889.
As to this proposition, it is only necessary to
refer to the interesting statement on this subiect
made by Dr. Merriam, one of the United States'
Commissioners, writing as a naturalist; and
it is confidently affirmed that no unprejudiced
naturalist will be found to deny the existence of
two "homes " in the case of a regularly migratory
animal.
Dr. Merriam's remarks, here particularly
referred to, relate to migratory birds, the analogy
between which and the fur-seal has been clearly
pointed out by Brofessor Angell. If the
" home " of any animal be merely its breeding
resort, any rights which may be supposed to
flow from the possession of such " home " would
rest in the case of many of the migratory birds,
(and particularly of the economically important
water-fowl) of North America, exclusively in
Canada.
If, again, the term % home" be considered
as equivalent to that of " habitat," as technica'ly
employed by naturalists, it will be found that the
most trustworthy and eminent authorities are
united in defining the habitat of a migratory
[182] 2 L 128
PPlf
animal as including the whole of the area over     Bage 101.
which it normally ranges.
The statement made by the British Commissioners, as the result of their investigations, in
respect to the summer and winter " homes " of
the fur-seal, is next found fault with because
the names of their informants are not specifically
detailed.    A reference to the ' British Commis- British Commis-
» -r> x     -n    x. ■      j-i    x. j.i        t_ •   „      sioners' Eeport,
sioners Beport will show that they have given, paraSi 175--187.
in what is believed to be sufficiently great detail,
an account of   the evidence upon which   the
" winter home " of the fur-seals has been defined
by them.    It is not true that the names of their
informants are not given.   A number of these
informants are named, and the detailed statements
of some of them are included in the Appendix to
the Beport.   The facts, ascertained in interviews
with natives along the coast, are given in abstract.
On the part of Great Britain, no such imputations are made respecting the basis of the
migration-maps offered in the Case and Counter-
Case of the United States. It is in fact believed,
that the errors occurring in the first, and those
which still remain in the second, editions of this
map are due merely to imperfect information,
and a reference to the data upon which these
maps are constructed fully bears out this belief.
How the statement can be made on this page
of the United States' Counter-Case, that the
British Commissioners " entirely overlooked*' the
important fact that full-grown bull seals are not
found to the south of the 50th parallel, is inexplicable. This fact was ascertained as the result
of their own investigations. It is clearly set forth
in para. 193 of their Beport, and characterized
there as a " noteworthy and interesting fact/'
The further statement that the Commissioners
d.o not anywhere state—
I that they ever heard of a full-grown male below the
56th parallel, the assumed northern limit of the winter
habitat which they have created,"
mm
'ommis-
sioners' Report,
paras. 172-180.
is broadly incorrect, as a reference to the Beport British c
will show.
As the line drawn on the new migration-chart
. Bage 102
now offered by the United States to represent the
southern limit of the range of full-grown males
is not supported by any evidence,  it appears
unnecessary to follow the argument based on
this, and on the erroneous statement just referred
to; but it may be pointed out, that even on the IIS
129
Bage
102.
incoi
•rect
assumption
made,
i.e., tha
t full
-grown
bulls
are
seldom seen
south
of Baranoff
Island,
and
that the " winter
home,
" refen
ed to
by the
Bages 102,
103.
British Commissioners' Report,
Map No. II, and
paras. 582, 596.
British Counter-
Case, Appendix,
vol. ii, pp. 43-139.
United States'
Case, p. 129.
Ibid., Appendix,
vol. i, p. 406
British Commissioners' Report,
paras. 190, 191.
Bage 104.
British Commissioners, is therefore not that of
the full-grown males : —
1. That this does not assist the further assertion made to depend on it that such males have
no " home " but the Bribyloff Islands • and
2. That whatever rights may flow from position,
proximity of territory, or food consumed by the
fur-seals, may be held equally on animals of
either sex or any age, the number being the
principal consideration, particularly in respect to
the consumption of food fishes.
Stress is laid in the United States' Counter-
Case on the fact that sealing is conducted to a
certain extent southward along the North
American coast, as far as California, and it
appears to be considered that this fact invalidates
the migration-map printed in the British Commissioners' Beport. An examination of this map
and of the Beport will, however, show that it has
been fully recognized, and was considered and
particularly mentioned by the Commissioners.
It was very clearlv not the purpose of the Com-
missioners in this map to indicate the whole vast
region of ocean which might at any time be
resorted to by any fur-seals, but to distinguish
and make plain, as the facts obtained by them
enabled them to do, the principal resorts of the
fur-seal at various seasons, and the main routes
covered during its migration. Burther evidence
since obtained tends fully to confirm these main
facts as represented in the migration-map of the
British Commissioners.
It will further" be remembered, that in the Case
of the United States, evidence is brought forward
to show that the Californian fur-seal is an animal
wholly different from the northern fur-seal
proper; while the British Commissioners, though
not aware of the conclusions at which Brofessor
Allen was about to arrive on this subject, have
themselves independently recorded their belief
that the fur-seals noted as breeding on the
Californian coast could not well have taken part
in the main migration.
The statement made on this page of the United
States' Counter-Case, and based on evidence
quoted by the British Commissioners, that
Captains Kelly and Betit have followed the seals
" along " the British Columbian coast, has nothing
■I WM
130
Mil
to do with the subject under discussion, for it is
fully understood and  explained in the British
Commissioners' Beport that a northward movement sets in among the seals in the spring.
The further statement that—
" the distribution of the Alaskan seal-herd is. much more
scattered during the winter months than is implied by
the Eeport, and the range of position of the herd is
much further south and west than appears on the Commissioners' chart of migration,"
Bage 104.
shows merely a misconception of the nature of
these statements and of that chart. No chart,
map, or diagram showing the result of observations of natural phenomena, such as those of
migration, winds,, rainfall, &c, in a general way,
is so framed as to include all exceptional cases.
It is of interest to note, by the statements
made on this page of the Counter-Case, that the
United States—twenty-five years after having
come into possession of Alaska—have in 1892
for the first time taken some measures to
ascertain the migration-routes of the fur-seal;
and though the investigations thus carried out
by Captain Hooper, in a single vessel, do not
afford evidence of a character comparable with
that obtained by the British Commissioners from
the numerous pelagic sealers and the native
peoples inhabiting the coasts, they, nevertheless,
possess some points of interest
These investigations are referred to in a footnote to this page of the United States' Counter-
Case, and it will be found on consulting Captain
Hooper's Beport, in the Appendix, that wherever
he speaks of actual observations, his statements
are in accord with those of the British Commissioners.    He thus writes :—
" But a small part of the entire herd goes to the coasts United States'
of California and Oregon.     Many  seals reach  the  coast Counter-Case,
s   *t. 47. *   4.V • Hi Appendix, pp. 232,
Jurtkcr norm,  some  or them  coming out through  the 370.
passes, but going no doubt direct to the coast of Washington,
and even further north. In 1886, during a passage in the
United States' revenue-steamer " Kush," from Puget Sound
to Unalaska, where we arrived on the 19th January, I saw
fur-seals nearly every day, the vessel having passed through
the herd then on its migration from the passes to the
coast, and extending entirely across the Pacific Ocean."
Captain Hooper does not state whether the
voyage referred to was made outside or inside
Vancouver and the Queen Charlotte Islands, but 181
Bage 104.
o
United States'
Counter-Case,
Appendix,
pp. 232, 370.
British Commissioners' Report,
paras. 209, 224,
228.
British Counter-
Case, p. 152.
United States'
Counter-Case,
Appendix, pp. 228,
233.
Bage 105.
British Counter-
Case, pp. 137, 138
in either case his observations accord perfectly
with those depended on by the British Commissioners.
He further states, in two places, that the
arrival (or appearance) of seals upon the coast is
directly related to that of the coming of the smelts,
herring, and ulachan. This statement may be
compared with those made in the British Commissioners' Beport and in the British Counter-
Case, with which it fully accords.
As the statements made by Captain Hooper
appear to be relied upon by the United States
in connection with that part of the migration-
route of the fur-seal which lies to the south of
the Aleutian Islands, and to have been employed
in the construction of the-revised migration-
map presented with their Counter-Case, it may
be interesting to note that Captain Hooper in
1892 left Unalaska on the 10th November, and
arrived in San Brancisco some time before the
21st November, when his Beport was made. On
the passage he saw but two seals.
Captain Berguson is, however, also quoted to
express his belief that there must be an "immense feeding-ground" of fur-seals between
latitude 40° and 42° north and longitude 172°
and 135° west. He saw no fur-seals there himself,
but quotes the reports of vessels (not named)
which are stated to have seen seals in this region.
Brom the evidence printed in the British Counter-
Case, it is very probable that Captain Berguson
may be correct in his conjecture that a certain
or even a considerable number of fur-seals may
often be found in the region specified, but this in
no way affects the general facts as to the migration of the main bodies of the seals of the
North Bacific. So far as it goes, it assists
to bear out the evidence relating to the intermingling of the seals of both sides of that
ocean during the winter months, and also the
statements as to the essentially pelagic habits of
the seals.
The " data collected and mentioned above " are
those just referred to, and their extremely scanty
character fully justifies the doubts expressed as
to the trustworthiness of some of the indications
of the new version of a migration-map presented with the Counter-Case of the United
States.
It must be explained, that the criticism thus
made is not directed, to all the indications oi the
[182]
2 M 132
mm
Mm
M
map; but it is confidently maintained that no Bage 105.
substantial evidence has been adduced to verify
that part of these indications which shows the fur-
seals, after having left the territory of the United
States on the Bribyloff Islands, navigating in a
body directly to that part of the west coast of
North America which is comprised in the territory of the same Bower to the south of the
Canadian coast.
It may also be noted, that no attempt is made
on the map in question to show the general distribution of the seals in Behring Sea and along
the Aleutian chain during the summer months.
In this connection it is further important to
observe, that on another map, which purports to
give details respecting seals observed by cruizers
in Behring Sea in 1892, an important error has
occurred, in consequence of which seals seen in
three places west of the 180th meridian have
been placed at corresponding distances east of
that meridian (or in west instead of east longitude). The error is more important having
regard to the small number of cruises made to
the west of this meridian. The observations
referred to are those of the "Yorktown." No
notes are given respecting cruises made to the
west of the 180th meridian in the same year by
two other United States'-vessels, the "Banger"
and the "Mohican."
The logs given in the Appendix (pp. 400-408)
cover but a small part of the cruises shown on
Chart IV of the United States' Counter-Case.
The eighty affidavits of natives coUected by United States'
Captain Hooper in the Aleutian Islands, while Counter-Case,
r L ' Appendix, p. 226
engaged in investigating the range of the fur-
seal, though these would be of material interest,
have not been produced by the United States.
IKli
2. That the Alaskan Seal-herd has changed its
habits as a result of disturbance on the breeding-
islands and of pelagic sealing."
As in previous cases, the discussion of the evidence and conclusions of the British Commissioners given under this head is introduced by
imputing a motive to the Commissioners. They
are represented as assuming a position, and
thereafter endeavouring to support it. The evidence and facts adduced by them are, however,
fortunately, not thus affected.
Bage 106.
WBm&£mmx&mar-m$r*> 133
Bage 106.
British Commissioners' Report,
para. 281.
In dealing with the subject described in the
heading above quoted, which nearly corresponds
with that discussed by the British Commissioners
under their chapter, " (0.) Changes in Habits of
the Fur-seal in recent years," a selection is made
of some of the points taken up in that chapter,
for reply, while others are passed over without
notice.
The subject is further subdivided in the
United States' Counter-Case into two subordinate
sections, denoted (a) and (b) respectively. The
first of these includes mention of the Tabic of
catches per man and
the Commissioners' Beport, of
connection of seals found in Behring Sea with
the breeding-islands, of the increased pelagic
nature of the seals owing to disturbance, and,
singularly enough, of the question of the taking
of "stagey" seals at sea, which is referred to in
another part of the British Commissioners'
Beport.
The Table just referred to, constitutes only a
part of \he evidence showing that no decrease in
seals has been observed at sea in late years.    In
boat given on
degree of
paras.
403-405  of   the British   Commissioners'
British Counter-
Casi
Apj
Beport, abstracts of statements covering much
experience, and a considerable number of years,
are given. Neither is any mention made by
the United States of the relative effects of the
increasing wariness of the seals and growing
experience of the hunters. On both these
subjects much additional evidence is now avail-
Case, p. 173; and   aDle  «and this  is  entirely confirmatory of the
Appendix, vol. n, * . *' #
pp. 29-32, 43-166. general statements made by the Commissioners.
In respect to the Table, the complaint is made
that it includes but five years—18S7—91. But,
for all practical purposes, these later years are
the most important, and offer the best test of
the matter under discussion. Apart from the
changes introduced by increasing wariness of
seals and growing skill of hunters, other important changes in methods have occurred concurrently with the growth of pelagic sealing.
The number of vessels in these years was also
larger; and for this reason, and those above
alluded to, the years in question appear to afford
data of a more nearly comparable character.
Neither could it be known to the Commissioners
that the United States would in their Case fix on
the year 1885 as being that of the beginning of
a decrease in the number of seals.   As the data, 18 li
so far as  they exist, for the  whole  period of
pelagic sealing, are given in   the Appendix to
the Beport, the suggestion of a wish to conceal
the facts for 1885 and 1886 has no validity.
As the number of boats engaged in the fishing
Bage 106.
Bage 107.
in 1885 is not known, it was naturally impossible British Commis-
to present the average number of seals per boat ^oners'Rep0«A«
1 .  ° Appendix, p. 209.
taken in that year, while in 1886 several of the
sealing-vessels were seized in Behring Sea, and as
there was no record of the number of seals taken
by such vessels there, and any averages based on
the total catch of the fleet must be inaccurate,
they were omitted.
A singular train of reasoning is next entered Bage 108.
into in the United States' Counter-Case to justify
the production of new Tables, based on the
British Commissioners' figures; but in which
these figures are separated and so manipulated
as to show a decreasing " coast catch," with an
increasing catch in Behring Sea. If the statements urged in the above argument—to the
effect that the sealers only in later years became
conversant with all the resorts of the seals—are
correct, they afford an excellent reason for the
restriction of the Commissioners' Table to these
later years.
In the Table printed on p. 411 of the United
States' Counter-Case, 3,565 is given as the number
of skins taken on the "coast" in 1891, and this
is made to correspond with the " spring" catch
of earlier years. The fact that fourteen vessels British Commis-
are shown in the British Commissioners' Table to S10!1?r.s' RePort'
have transhipped their skins at Sand Boint, but
to have made no return for the coast catch, is
ignored in the preparation of the Table in the
United States' Counter-Case. These vessels had
taken 6,364 skins before they reached Sand
Boint, a great many of which were taken on the
"lower" or southern coast, and if this number
were determinable it should be added to the
number, 3,565, used in the Table appended
to the United States' Counter-Case. The fact
is that many sealing-vessels, after a short
cruize to the southward of Cape Blattery,
return to Victoria to refit, and there discharge
their skins. These vessels continue sealing
along the British Columbia coast, and that
part of their catch taken on this portion of
the coast should also be included under the
heading " spring catch " or " lower coast " catch
in the Table referred to.    It is  thus  evident
p. 205. 135
Bage 108. that no proximately accurate separation can be
made of the "coast" and "spring" catches, and
that any Table prepared for the purpose of showing the average catch per vessel or per boat,
should include all the seals known to have been
taken south of the Aleutian Islands. This has
been done in the Table given below. Accuracy
is claimed for the years 1889, 1890, and 1891
only, but in order to show how misleading the
Table printed in the United States' Case is, the
years 1886, 1887, and 1888 have also been included in the Table.
The explanation offered for the inclusion of
but one part of the " coast catch " in the Table
presented in the United States' Counter-Case
(p. 411) is that "prior to 1889 the so-called
I coast catch ' did not include skins taken north
of Vancouver Island, and it therefore corresponds
to the I spring catch' in the Table for 1889, and
following years." The British Commissioners
are quoted as the authority for this statement;
but on turning to their Beport (p. 211), it will
be found that what they really say is very different from what is attributed to them:—
" The Behring Sea catch for this [1888] and previous
years includes a certain number of skins taken on the
coast of British Columbia, to the north of Vancouver.
Island, the schooners having no opportunity of landing
the skins before entering Behring Sea."
It is thus evident that the exact number of
skins taken on'the "coast" prior to 1889 cannot
be determined, but an approximate estimate may
be obtained by adding together the total of the
catches made on the coast in 1889, 1890, and 1891,
and ascertaining what proportion they represent
of the total catch for these years. It is by this
means found that the number of seals taken on
the " coast" represents 46'6 of the total number
taken in 1889, 1890, and 1891.
In the Table given below 46*6 per cent, of the
total catch for each of the years preceding 1889
is assumed to have been taken on the coast, this
being the best available means of forming an
estimate for these years:— I
1:
if'
if
i
lift*'
IMf'
|
lis-
If
§
136
The statement is made on this page  of  the     Bage 109.
United States'  Counter-Case, that the  British
Commissioners—
" assert that the seals found in Behring Sea are not seals
which have temporarily left the rookeries to feed, but are
practically independent pelagic herds."
On reading the paragraph of the British
Commissioners' Beport referred to (para. 219), it
will be found that the Commissioners' statement
is not intended to apply to all the seals in
Behring Sea, and further that the concluding Compare also
expression is not that employed above, but— Para"
I practically independent pelagic schools of a diffuse kind,"
an expression conveying a different meaning.
Moreover, the mention made in this particular paragraph of the Commissioners' Beport, is
one only incidental to a discussion of the possible
bearings of the direction and force of the wind on
the direction of travel of the seals in the eastern
part of Behring Sea.
Neither is it true, as is next asserted, that the
results of these observations are the only evidence
offered on the independence of a large number of
the seals in Behring Sea of the breeding-islands,
as a perusal of paras. 209-222 of the Commis- British Counter-
sioners'  Beport will show.*     Additional facts.    ,e.' APP"fndlx>
x '   vol. l, p. 14o.
with the same meaning, have subsequently been
observed by Mr. Macoun.
It is further stated in the United States'
Counter-Case, that the | alleged observations "
of the direction of the wind " are not given,
and, even if true, are quite too slender to furnish a
foundation for any conclusion." It is true that
the detailed logs transmitted to the Meteorological Department of Canada for analysis are not
* See also Captain Bryant, in " Monograph of North
American Pinnipeds," p. 411, quoted in British Counter-Case,
Appendix, vol. i, p. 126; and Veniaminov in Elliott, Census
Beport, p. 141.
———
Average
Number of
Average
Year.
Number of
Total Catch.
Coast Catch.
per
Boats
per Boat or
Vessels.
Vessel.
and Canoes.
Canoe.
1886
16
24,344
11,344
709
101
113-3
1887
17
20,266
9,444
555
123
76 "8
1888
20
24,329
11,338
567
165
68*7
1889
22
27,868
12,371
562
179
69-1
1890
30
89,547
21,390
713
246
86-9
1891
43
49,615
20,727
482
827
63-4 Page 109.
British Commissioners' Report,
Maps III and IV.
Bages 106,
-107.
British Counter-
Case, Appendix,
vol. ii, p. 43 et seq.
British Commissioners' Report,
para. 134.
British Commissioners' Report,
para. 281.
Elliott, Census
Report, p. 46.
Bryant in " Monograph of North
American Pinnipeds," p. 410.
137
printed in full in the Beport, but synopses of the
results obtained by such analysis are given on the
face of the maps to which they refer. If the
United States seriously entertain doubts as to the
existence of the observations, they can be submitted for their inspection.
The assertion next made, that the British
Commissioners advance no proof of the increased pelagic nature of the seal, is incorrect,
as will be found on examining paras. 397, 412,
424, 183-185, 205-207 of their Beport. The fact,
stated by them (para. 402), that no decrease has
been noted in the number of seals at sea, though
the number frequenting the islands has decreased,
is of itself sufficient proof of the increased pelagic
nature of the seal.
As to the non-occurrence of " stagey" or
" shedding " seals at sea, the Commissioners may
be assumed to have based their statement on the
best evidence available to them. Its nature is
explained in paras. 281, 631, 632 of their Beport.
More complete evidence will be found on this
point in the statements appended to the British
Counter-Case.
It is a fact generally recognized, that fur-
bearing animals living much in the water, such for
instance as the otter and beaver, shed their pelage
by degrees, and not so markedly at any one time as
to seriously affect the value of their skins. The
same fact is believed to explain the absence of
" stagey " fur-seals at sea, while the creation of a
markedly " stagey " condition is supposed by the
British Commissioners to occur during, and in consequence of, the continued resort of a portion of the
seals to the land. It is gratifying to observe that
in this one instance the explanation offered by
the British Commissioners is accepted as correct;
but the ensuing deduction, .that " a seal must,
therefore, of necessity be on the islands each
year at some period," is a non sequitur of the most
apparent kind. The proof is, in fact, exactly to:
the opposite effect, for if all the seals must resort
to the islands, and must remain there during
the " stagey" season, then no seals should be
found at sea during that season. The " stagey"
season begins about the middle of August and
lasts for some six weeks. Thus, according to
the argument advanced by the United States, \
no seals should be found at sea from the middle
of August up to and after the 15th September. 138
m
This is, however, wholly negatived by the known    Bages 106-,
facts relating to pelagic sealing. 10'•
But not content with the clearly cut position just outlined, the United States further
endeavour (and in opposition to it), to prove
that "stagey" skins in large quantity are
taken at sea. Affidavits on this subject are See United States'
produced from Messrs. C. Behlow, W. Breiss, g£5£^; 357>
and W. E. Martin. Messrs. Behlow and Breiss 376, 384.
say that all skins taken in Behring Sea after
about the 10th August are "stagey" and "almost
unmerchantable." The statement thus made is
so sweeping and so entirely in opposition to other
evidence as to defeat its object. Sealers would
not remain in Behring Sea after the 10th August
for the purpose of obtaining, at much cost
and labour, skins "almost unmerchantable."
Mr. Martin is more judicious ; he speaks only of
a certain percentage of " stagey " skins, without
stating any amount.
mm
The second section (6) of this part of the argument in the United States' Counter-Case is
devoted to the denunciation of a heresy expressed as follows in that Counter-Case, and
attributed to the British Commissioners :—
Bage 109.
" That the location of the breeding rookeries is dependent
solely upon the fact that the seals while there are not'
disturbed by man."
It will be found, however, on referring to the
British Commissioners' Beport, that the statement here made is not theirs, but one embodied
for the purposes of attack in the United States'
Counter-Case itself.
The Commissioners believe the freedom from British Commis-
disturbance and attack to be  the principal  or S10"er8' ,R®P°"' .
* J- paras. 31,247—248,
ruling cause, but not the sole cause, of the resort 400.
of seals to any particular place at the breeding ^ritlsh Coumei--
. &   Case, p. 146,
season.   The subject is, moreover, further treated
in the British Counter-Case.
It is not, however, in the Counter-Case of the United Slates'
United States attempted directly to controvert the
above statement, even in the form in which it is
presented in that document; but in discussing
it, attention is turned to the records which
exist of former breeding-places of the fur-seals
in the  vicinity  of the  North American  coast
Counter-Case,
pp, 146-14b.
l *'>m 139
Bage 109.
British Commissioners' Report,
paras. 447-449,
523,524.   See also
para. 424.
British Counter-
Case, Appendix,
vol. i, pp. 135,136.
Bage 110.
United States'
Counter-Case,
Appendix, p. 376.
to the south of the Aleutian Islands. Be-
ference is made to some of the statements on
this subject contained in the Beport of the
British Commissioners, and it is then stated
that the Commissioners have failed to authenti-
ticate these. This alleged | failure" must of
course remain a matter for decision on the
evidence produced, but the additional information obtained in 1892 respecting Haycock and
other islands and rocks, with that relating to
the taking of female seals in milk off various
parts of the British Columbian and Alaskan
coasts to the south of the Aleutian Islands, go
far to reinforce the already strong body of
evidence on this point adduced by the British
Commissioners.
Attention is then, in the United States''
Counter-Case, directed to the statement made
by the British Commissioners, on the basis
of information gained by them on the Com-
mander Islands and at Betropavlovsky, as to
the formation or attempted formation of new
rookeries at various places on the Asiatic coast.
Mr. Malonavonski is quoted as having visited one-
such reported rookery on the Kamtschatka coast,
and as having found the animals there to be sea-
lions and not fur-seals. Upon this single in*
conclusive statement the following remark is
made:—
" If all the incipient breeding rookeries alleged to exist
on the Asiatic coast were examined, doubtless they would
be found to be similar to the one above noted."
Ibid., p. 363.
Ibid., p. 362.
British Commissioners' Report,
para. 519.
Mr. Grebnitzky is cited to the effect that he
thinks it to be wholly improbable that the Commander Island seals visit any other land, but it
will be observed that though the United States
took pains to obtain a written statement from
this gentleman, for the purpose of counteracting
his statements as quoted in the British Commissioners' Beport, he has not in this document
contradicted his specific reference to the formation of a new fur-seal rookery on the Kamtschatka coast.
The great importance evidently attached by
the United States to the denial of the evidence
showing that the fur-seal on the Asiatic coasts
has sought and found new breeding-places,
evidently depends on the circumstance that this
evidence tends to substantiate the less complete
[182] 2 O m-nmrn
140
details respecting the existence of such breeding-
places (other than the Bribyloff Islands) on the
coast of North America.
On the strength of the above imperfect discussion, and the inconclusive negations above outlined, it is then denied on the part of the United
States that the—
"Alaskan seals have any other home than the Pribyloff
Mauds, and that, even if constantly disturbed by man
while on the rookeries they would seek a new habitation."
Bage 110.
Bage 111.
The denial above summarized is not only contrary to all natural facts, but bristles with ambiguities. If the term "Alaskan seals" means
only the seals breeding on the Bribyloff Islands,
it may readily be admitted that they have no
other breeding-place. If the breeding-place is
the only " home" of such seals, it of course
follows that this "home" must be on the
BribylofE Islands. But the use made of the
term " home" is a purely conventional one,
and thus, if the territorial possession of the
"home" is supposed to imply some proprietary
right in the seals themselves, it is a wholly
misleading one. "What " habitation," as distinguished from "home," may imply is not
explained.
The reference next made on this page of the
United States' Counter-Case to Bobben Island and British Counter-
its rookeries, renders it appropriate to point out Case> Appendix,
i-x.  i.   •     1.x. •        x • x.   XT.-     • i      j vol. ii, pp. 89, 11!
that in the very years m which this island was
being continuously harassed by raids, the seals
began to form new rookeries in other suitable
places. It is of course impossible to state that
they were actually the same fur-seals which had
formerly resorted to Bobben Island, but the presumption is in favour of that belief.
In 1892, evidence of the most conclusive kind
possible has been obtained on this particular
subject, relating to the formation or attempted
formation of new rookeries on Moo-shir Bocks, Ibid., pp. 34, 35.
llaikoke Island, and Shed-noi Island of the
Kurile group, Bittern Bocks off the north-west
coast of Nipon Island, and on the Island of
St. Iona in Okhotsk Sea. It is thus no longer
necessary to deal with the discussion of abstract
propositions on this subject of the change of
breeding-places, to which we are invited in the
Counter-Case of the United States.
Occasion is next taken on this page of the 141
Bage 111. United States' Counter-Case, to contradict or
modify the evidence of one witness out of three
quoted in para. 422 of the British Commissioners'
Beport, in which it is stated that, concurrently
with the beginning of the United States' control
of the Bribyloff Islands (and presumably because
of the excessive slaughter occurring at that
time), fur-seals were found in more than usual
abundance on the coast of British Columbia;
the evidence adduced being such as to show the
injurious effect of disturbance on the breeding-
islands.
The matter has been considered to be of so
great importance by the "United States, that
Brofessor J. A. Allen has written a special letter
to the United States' Secretary of State, to say
that the year should have been 1870, and not
1869 (as stated in his Monograph), in which seals
were specially abundant on this coast. Instead,
of weakening the force of the Commissioners'
statement on this point, the correction given
strengthens it, and fully accords with the evidence obtained by the Commissioners from other
sources. There is no reason to suppose that the
excessive disturbance on the breeding-islands,
which reached its maximum in 1868, was confined
in its  effect to the next year.     The diagram
jiven by the Commissioners, in fact shows that
See also paras. 44, £he greatly increased Indian catches along the
809. ... .
British   Columbian   coast actually occurred in
1870 and 1871.
United States'
Counter-Case,
Appendix, p. 413.
British Commissioners' Report,
Diagram No. IV  (    143    )
ABBENDIX TO ABGUMBNT.
No. 2.
Remarks on the United States' Evidence.
ANT detailed criticism on the United States' evidence must, of necessity, be
reserved for oral argument, but there are some observations bearing upon the
character and reliability of such evidence which it is deemed proper here to put
before the Arbitrators.
In the first place, it must be pointed out that the assertions made in respect to
seal life and other connected subjects in the United States' Case, are entirely based on
very recent affidavits, or on papers which have been specially obtained or prepared in
connection with the present discussion, and which are now produced for the first time.
Further, that many of these are derived from persons who formerly occupied official
positions in connection with the management or supervision of the Bribyloff Islands
under the United States' Government control, and who were the authors of official
Beports and other writings on the condition of the islands; but that such earlier and.
public official Beports are not now referred to in the United States' Case. The
following Table shows the names of the Agents and Officials whose sworn evidence
appears in the United States' Appendices, and which also shows their previous Beports
and writings:— 144
Names of Witnesses.
■Ch. Bryant ..
Stephen N. Buynitsky
William H. Dall
Captain M. A. Healy..
John A. Henriquez   ..
Abial P. Loud ..
H. H. Mclntyre
John M. Morton
Jacob H. Moulton
Joseph Murray ..
■S. R. Nettleton
H. G. Otis
Benjamin F.  Scribner
William H. Williams..
Milton Barnes
Henry A. Glidden
•Ch. J. Goff ..
S. Falconer
Xiouis Kimmel ..
T. F. Ryan
W. B. Taylor
•George Wardman
Reports, Evidence, or published Writings,
formerly made by Witnesses.
Sen., 41st Cong., 2nd Sess-, Ex. Doc. No. 32;
H. R., 41st Cong., 3rd Sess., Ex. Doc.
No. 122; H. R., 42nd Cong., 2nd Sess.,
Ex. Doc. No. 20; H. R., 44th Cong.,
1st Sess., Ex. Doc. No. 83 ; "Monograph of
North American Pinnipeds," p. 881 et seq.;
" On Eared Seals," p. 381
H. R., 41st Cong., 3rd Sess., Ex. Doc. No.
122, p. 5 ; H. ft., Ex. Doc , 44th Cong.,
1st Sess., No. 83 ; H. R , 50th Cong., 2nd
Sess., Rep. No. 3883, p. 1
" Alaska and its Resources," Chap. VI
Sen., 41st Cong., 2nd Sess., Ex. Doc. No. 36;
H. R., 50th Cong., 2nd Sess., Rep. No.
3883, p. 116
H. R., 50th Cong., 2nd Sess., Rep. No. 3883,
p. 250
Sen., 51st Cong., 2nd Sess., Ex. Doc. No. 49
Sen., 51st Cong., 2nd Sess., Ex. Doc. No. 49
H. R., 50th Cong., 2nd Sess., Rep. No. 3883,
p. 17
Sen., 51st Cong., 2nd Sesc, Ex. Doc. No, 49;
letter to Mr. Windom, British Counter-Case,
A pp., vol. i, pp. 84, 85
H. R., 42nd Cong., 2nd Sess., Ex. Doc. No. 20,
p. 2; H. m 44th Cong., 1st Sess., Ex. Doc.
No. 83
H. R., 50th Cong., 2nd Sess., Rep. No. 3883,
p. 267
Ibid., p. 211
Ibid., p. 41
I Ibid., p. 29
Where Reports
referred to
in United States'
Case.
Date of last 'Visit
to Pribyloff
Islands.
United     States'
Case, p. 153
1877
1872
1880
1891
1869
1889
1889
1878
1884
1891
1891
1881
1880
1891
1885
1890
1876
1883
1886
1881
1885
It is also to be remarked that although the above-named gentlemen had not since
the dates above mentioned (in some cases fifteen to twenty years ago) visited the
Bribyloff Islands, and had not, therefore, any further personal information on the
subject, yet the opinions expressed in the testimony now put forward in many
instances differ materially from that formerly expressed by them in their official
Beports, as the following few examples will show.
Br'aW 145
Stephen N. Buynitsky.—As to the existence of fish near the Bribyloffs :-
"They (the natives) subsist mostly on cod and
halibut, and every description of fish they can
'find. They dry and preserve it for winter."—
(H. E., 50th Congress, 2nd Session, Eeport
No. 3883, p. 12.)
"At the time I was on the islands I do not
think there were any fish at all within 3 miles of
the islands, and that the seals to feed had to
go farther than that from land. The belief is
founded on statements made me by natives on the
islands, and also from the fact that fresh fish .Were
seldom eaten upon the islands."—(United States'
Case, Appendix II, p. 21.)
H. H. Mclntyre.—As to the movements of seals while on the islands
"The fact is that the bachelor seals may be
found to-day upon a certain rookery, and at
another time upon another place. The result is
the same animals, in many instances, have been,
counted two or three times."—(H. B., 50th Congress, 2nd Session, Eeport No. 3883, p. 116.)
"Yet their (the seals') habits are so well defined and unvarying that it is an easy matter to
determine whether they increase or decrease from
year to year, because they always occupy the same
portions of certain beaches, and simply expand or
contract the boundaries of the rookeries as they
become more or less numerous."—(United States'
Case, vol. ii, p. 48.)
As to the scarcity of bulls:—
"There are at present (1888), in my opinion,
too few bull seals to keep the rookeries up to their
best condition."—(H. E, 50th Congress, 2nd Se
sion, Eeport No. 3883, p. 117.)
" When we are left only exactly the number of
bulls we need, and a few even of these are killed,
it completely upsets our calculations, with the
result of leaving too few of this class of animals
to secure the full productiveness of the rookeries."
—(H. E., 50th Congress, 2nd Session, Eeport
No. 3883, p. 130.)
"While I was located upon the said islands
there was at all times a greater number of adult
male seals than was necessary to fertilize the
females who hauled up on said rookeries, and there
was no time when there were not vigorous bulls
on the rookeries who were unable to obtain
female consorts."—(""United States' Case, voL ii,
p. 45.)
Henry A. Glidden.—As to raids and sales of skins :—
" Q. I would ask whether there are not
trading-vessels which buy skins ?—A. Yes, Sir,
and steal skins; that is the great trouble we had,
to watch marauders. That was more trouble than
anything else."—(H. E., 50th Congress, 2nd Session, Eeport No. 3883, p. 26.)
" Eaids on the rookeries by marauders did not,
while I was on the islands, amount to anything,
and certainly seal life here was not affected to
any extent by such incursions. I only knew of
one raid upon St. Paul Island while I was there."
—(United States' Case, Appendix, vol. ii, p. 111.)
J. H. Moulton.—As to the increase of seals on islands:—
"I think during the first five years (1877-82) I
was there there was an increase, and during the
last three years (1883-85) there was no increase."
 (H.  E, 50th   Congress,  2nd Session, Eeport
No. 3883, p. 255.)
Charles A. Goff.—As to driving:—
obtained, that it was impossible to secure the
number allowed by the lease; that we were
merely torturing the young seals, injuring the
future life and vitality of the breeding rookeries,
to the detriment of the lessees, natives, and the
•Government."—(Senate, 50th Congress, 2nd Session, Ex. Doc. No. 90, p. 5.)
" While on St. Paul Island (1881-84) I do not
think the number of seals increased, and in the
last year (1884) I think there was a slight
decrease."—(United States' Case, Appendix, voL ii.
p. 71.)
" We closed the season by turning away 86 per " A few seals are injured by redriving (often
cent, [of the seals driven], a fact which proves to conflicted with over-driving,  and  sometimes  so
every impartial mind that we were redriving the called),  but the   number   so injured is incon-
yearlings, and, considering the number of skins siderable, and could have no appreciable effect
upon seal life through destroying the virility of
the male."—(United States' Case, Appendix, vol. ii,
p. 113, II
146
As to causes of decrease:—
" It is evident that the many preying evils upon
seal life, the killing of the seals in the Pacific
Ocean along the Aleutian Islands, and as they
come through the passes to the Behring Sea, by
pirates in these waters, and the indiscriminate
slaughter upon the islands, regardless of the future
life of the breeding rookeries, have at last, with
their combined destructive power, reduced these
rookeries to their present impoverished condition."— (Senate, 50th Congress, 2nd Session,
Ex Doc. No. 90, p. 5.)
" The prosperity of these world - renowned
rookeries is fast fading away under the present
annual catch allowed by law, and this indiscreet
slaughter now being waged in these waters will
only hasten the end of the fur-seals of the
Pribyloff Islands."—(Letter from Mr. Goff to
Mr. Windom, dated St. Paul Island, Alaska,
31st July, 1889.)
" I believe that the sole cause of the decrease is
pelagic sealing, which, from reliable information,
I understand to have increased greatly since 1884
or 1885."—(United States' Case, Appendix, vol. ii,
1 112.)
W. B. Taylor.—As to raids :—
I These vessels will take   occasion   to   hang
around the islands, and when there is a heavy fog
to go to the rookeries very often As it
is to-day, these vessels come and kill 5,000,
10,000, and ir.,000 seals every year."—(H. E,
50th Congress, 2nd Session, Eeport No. 3883,
p. 54.)
" There was but one raid on the rookeries while
I was there, and that took place on Otter Island."
—(United States' Case, vol. ii, p..!17?.)
George Wardman.—As to increase in number of seals :—
| After having told the Committee in 1888 that
he had measured all the rookeries carefully,
Wardman was asked—
■ Q. Do you put it [the number of seals] at tTie
same numbers annually ?—A. About. I think
the breeding seals on the rookeries come in about
the same numbers."—(H. E., 50th Congress, 2nd
Session, Eeport No. 3883, p. 39.)
" I made careful examination of the rookeries
each year, and after the first year I compared my
yearly observations, so that I might arrive at
some conclusion as to whether it was possible and
expedient to increase our portion of the quota of
skins to be taken on St. George Island without
injuriously affecting seal life there. I am satisfied,
from my observations, that the breeding-grounds
on St. George covered greater areas in 1884 than
in 1881, and that seal life materially increased
between those dates."— (United States' Case,
Appendix, vol. ii, p. 178..).
Charles Bryant.—-As to the date of cows leaving their pups :—
" The females go into the water to feed when
the pups are some six weeks old."—(Senate, 41st
Congress, 2nd Session, Ex. Doc. No. 32, p. 5.)
" The pup is nursed by its mother from its
birth as long as it remains oh the islands, the
mother leaving the islands at different intervals
of time after the pup is three or four days old."—
(United States' Case, Appendix, vol. ii, p. 5.)
m
As to time spent by pup on land:—
"When once in the water the young seals
soon appear to delight in it, spending most of their
time there in play, tumbling over each other like
shoals of fish"—(" Monograph of North American
Pinnipeds," p. 387.)
1 By the 1st September nearly all the pups
have learned to swim, and until the time of their
departure from the islands spend their time both
on land and in the water, but by far ihe greater
portion of their time is spent on land."—(United
States' Case, Appendix, vol. ii, p. 5.) 147
As to slaughter of pups in 1870:—-
- "Again, during the season of 1870 the natives,
to purchase supplies and for their own food, killed
85,000, mostly 1- and 2-year-old seals."—(" Monograph of North American Pinnipeds," p. 398.)
"In 1869 about 85,000 seals were taken by the
natives. 1 never stated that any such number
were taken in 1870. The full number taken in
1870 was less than 25,000."—(United States'
Counter-Case, Appendix, p. 414.)
As to relation of fur-seals to the breeding islands :-
O
" The fur-seals resort to the Pribyloff Islands
during the summer months for the sole purpose
of reproduction. Those sharing in these duties
necessarily remain on or near the shore until the
young are able to take to the water. During this
considerable period the old seals are not known to
take any food."—(" On Eared Seals," p. 95.)
As to date of fertilization of cows:—
"At this stage they [the female pups] leave
the island for the winter, and very few appear to
return to the island until they are 3 years old, at
which age they seek the males for sexual intercourse."—(" Monograph of North American Pinnipeds." p. 401.)
As to supply of breeding bulls :—
"A residence of seven successive seasons on
the island in charge of these animals has furnished me with the desired opportunity for determining this surplus product by actual study of
their habits and requirements, and the result is,
the killing of 100,000 per annum does not leave
a sufficient number of males to mature for the
wants of the increase in the number of females."
—(H. E., 44th Congress, 1st Session, Ex. Doc.
No. 83, p. 175.)
" The stock of breeding bulls has decreased
by loss from age and other causes so much faster
than there has been young seals grown to replace
them, that its present condition is only equal to
the present demand, and the stock of half-bulls,
or those to mature in the next two years, is not
sufficient to meet the wants of the increase in the
females. Under these circumstances t feel it my
duty to recommend that for the next two years
the number of seals to be taken for their skins be
limited to 85,000 per annum."—(H. E, 44th Congress, 1st Session, Ex. Doc. No. 83, p. 178.)
"Providing the conditions were the same on
the islands the year round as they are in the
summer, and providing the food supply was sufficient in the immediate vicinity of the islands, I
think the seals would remain on or about the
islands during the entire year. The seals evidently
consider these islands their home, and only leave
them by reason of lack of food and inclement
weather."—(United States' Case, Appendix, vol. ii,
p. 5.)
"It is probable that the females  of this age
(2 years) are fertilized by the bulls, and leave the
islands in  the fall pregnant.
Case, Appendix, vol. ii, p. 6.)
-(United States'
" The whole time I was there there was an
ample supply of full-grown vigorous males sufficient for serving all the females on the islands,
and every year a surplus of vigorous bulls could
always be found about the rookeries awaiting an
opportunity to usurp the place of some old or
wounded bull unable longer to maintain his place
on the breeding-grounds."—(United States' Case,
Appendix, vol. ii, p. 7.)
Besides the above, there are a considerable number of United States' officials
who having occupied posts affording special opportunities for studying seal life, have
from time to time frequently reported and written on the subject to their Governments, but neither their testimony nor previous Beports are in any way referred to
in the United States' Case. Of these, Mr. H. W. Elliott, Mr. Washburn Maynard,
Mr. W. J. Mclntyre, and Mr. George B. Tingle are the more important.
The absence of aU reference to the writings or opinions of Mr. H. W. Elliott
forms a particularly noticeable omission.
Prom a date not long subsequent to the acquisition of Alaska by the United
States, Mr. Elliott has been known as the principal exponent and official and unofficial
writer on the subject of the Bribyloff Islands and the seals resorting to them.
Who Mr. Elliott is, is best told in the words of his testimony given before the
Congressional Committee:—
"A. My experience covers three seasons on the Seal Islands.   In the winter of 18
was pending before Congress, framed by Mr. Boutwell, providing for the establishment of four Treasury
Agents on the Seal Islands.   Professor Baird, of the Smithsonian Insti
°       [182] 2 Q
mute, was very desirous that H. R. 653, 148
some one should be sent from the Smithsonian to study the life and habits of the seals. He saw
Mr. Boutwell, and obtained from him permission to nominate a man whom he should appoint
as one of the Assistant Agents. Professor Baird selected m»,. I received the appointment from
Mr. Boutwell, and landed on the Island of St. George, 28th April, 1872. I went up there with the
special charge of studying the life and habits of' the seals. The question was an exceedingly-
interesting one, about which scientific men had no special data, and therefore Professor Baird's
interest in it. I immediately went to work on the grounds from the date of my landing, and I soon
found that the subject was one which could not be settled, as I thought it could, satisfactorily
to myself, in one season. I accordingly remained over, and spent the season of 1873 on the sealing-
grounds on the Island of St. George in order to compare my observations of that season with those
of the season previous. I at once saw that whatever 1 stated in regard to this matter would be
subject to criticism, and I thought it necessary to be very thorough in my examination of the
subject before I made a report upon it. . . . In the winter of 1873 I expressed to Mr. Eichardson
and my friends here a great desire to go to the coast of Asia to visit the Eussian Seal Islands in order
to complete and extend my work begun on our own islands. Mr. Eichardson said that he had no
authority to send me; that I could go only by authority of Congress. Accordingly 1 drew up a
Bill authorizing the Secretary of the Treasury to gather authentic information on that subject,
and it was introduced by my friends, was referred to this Committee, before which I appeared
(Mr. Dawes being the Chairman at the time), and' referred also to the Committee on Commerce,
before which also I appeared, was reported favourably to the House, and approved on the 22nd April,
1874. I immediately received my commission, and set out in May with an associate, provided for by
an amendment in the Bill, the Secretary of the Treasury putting the revenue-cutter 'Eeliance' at
our joint disposal. We, in visiting other places, paid special attention to the Seal Islands again this
year. I especially wanted to visit them at the height of the breeding season. We were there twenty-
eight days, until, Lieutenant Maynard having expressed himself thoroughly satisfied with his investigation on the subject, we set sail for St. Matthew's Island, and, after exploring that and St. Lawrence
Island, we returned by way of Ounalaska to San Erancisco, and submitted our Eeports to Secretary
Bristow. A few days after mine was submitted, lieutenant Maynard submitted his Eeport, the
contents of which I knew nothing of until lately, when it was sent to Congress, in obedience to an
order of the House. . .  "
I  51st Cong,
2nd Sess..
H. R. 7903.
i
It should be added that as late as 1890 this gentleman again visited and investigated the breeding resorts on the Bribyloff Islands as the trusted Agent of tbe United
States, and again under the mandate of a special Act of Congress, but that the Beport
known to have been made on the results of that examination has not been published
or produced to Great Britain, although the British Agent made a special demand for
its production, and is not anywhere found among the documents cited in or appended
to the Case of the United States.
The following is a list of some of Mr. Elliott's Beports and writings on the subject
of seal life:—
1. Eeport on the Pribyloff group or Seal Islands of .Alaska.—(Washington Government Printing
Office, 1873.)
2. Eeport to Secretary of the Treasury concerning the waste of seal oil, and the "natives" of
the Pribyloff Islands, and the brewing of quass.—(H. E., 44th Congress, 1st Session, Ex. Doc. No. 83,
pp. 103 and 104.)
3. Eeport upon the condition of affairs in the Territory of Alaska.—(Washington Government
Printing Office, 1875.)
4. "Ten years' acquaintance with Alaska, 1867-77."—(New York. Harpers Brothers, 1877;
vol. iv, No. 330.)
5. 1 The Seal Islands of Alaska."—(Washington Government Printing Office, 1881.)
6  Eeport on the Seal Islands of Alaska.—(Washington Government 'Printing Office, 1884.)
7. " Our Arctic Province."
m
Mr. A. W.
Lavender.
It is to be noted that five out of the above seven publications were printed and
circulated by the United States' Government, and that besides the above works
Mr. Elliott has contributed to newspapers and magazines many articles and papers too
numerous to give a list of.
Mr. Elliott has, without doubt, always been considered the leading authority
on the fur-seal question.
While it is conceivable that some of the Beports of Agents- appointed bv the
United States to control the Bribyloff Islands may, for many reasons, have "been
considered by the advisers of the United States as undesirable subjects for publication.
it is difficult to understand on what grounds all of the Beports have been ignored, and
particularly why the principal official investigator of the natural history of the fur-seal
should not be even referred to, and his Beport, made in pursuance to a special Act
of Congress, should be suppressed.
Another noteworthy circumstance connected with the evidence put forward by
the United States is as to the declarations which purport to have been made before
one " A. VT. Lavender."    These are very numerous, some being taken at Sitka, others
tiam 149
United States'
Case, Appendix,
vol. ii, pp. "241, 2-
Ibid, p. 332.
Ibid., pp. 406,43
at Washington,  others at Kadiak, Nicholas Bay, Dixon Entrance,  Victoria,  San
Er&ncisco, and Lynn Canal.
On reference to the declarations it will be found that this gentleman purports to
have attested declarations at these various places all on the same day. Thus, on the
14th April he attests the declaration of three Indians in or near Lynn Canal or
Chatham Sound, and also the evidence of J. Johnson at Victoria, British Columbia ;
while on the very same date he purports to attest the declaration of Martin Benson
and James Griffin at San Francisco.
Other examples may be found, as to the 26th April, at pp. 257, 357, and 366; as
to the 30th April at pp. 256 and 485; as to the 3rd May at pp. 323, 349, 368, and 445)
and as to the 12th May at pp. 269 and 283 of the same Appendix.
Mr. Joseph Murray, another United States' Agent, appears to have been able to Mr. Joseph
attest affidavits in two places at once.    Bor instance, on the 13th April he attested Mu'ray.
the declaration of Isaac Leonard at Kadiak, and on the same day the declaration of
E. W. Littlejohn at San Erancisco, the distance between the two places being not less
than 1,680 miles by sea.    (See pp. 217 and 457, United States' Appendix, vol. ii.)
No less than twenty-three affidavits from various Makah Indians who inhabit The Makah
Neah Bay and district. appear in. the United States' Appendix. None of these Indians,
witnesses have been seen on behalf of Great Britain, nor has their evidence been
subject to the test of local inquiry, for the reasons stated in the declaration of Arthur
Belyea (see British Counter-Case, Appendix, vol. ii, p. 176), from which itjpll be seen
that in November 1892 he visited Neah Bay, with a view to making the necessary
inquiries, but although the Indians were perfectly willing to talk to him and give
evidence to him, the United States' Government Agent, one John B. McGlinn (who it
will be noticed has witnessed nearly every single deposition taken amongst these people),
refused to allow him to examine any of the witnesses, although he offered to do so in
the presence of the said John B. McGlinn.
Mr. Belyea, however, saw the natives, and tried to get them to give evidence in
spite of Mr. McGlinn, but he was told by them that they dare not disobey this Agent,
and that he had forbidden them to talk about seals to any stranger who came there
without his permission. Whilst he was making these inquiries he was followed by a
policeman under the orders of McGlinn, and, as he believed, for the purpose of
preventing the Indians from talking to him.
The policeman actually followed him into> the house of one of the Indians, and
used threatening language to the Indian, which caused him to cease speaking to
Mr. Belyea. He, however, got hold of one Indian named Jackson, who made a
statement to him, which appears in the British Counter-Case, Appendix, vol. ii, p. 178.
The witness, amongst other things, told him that Mr. McGlinn would issue an order
that would send any one to gaol who gave evidence to Mr. Belyea.
The United States' evidence comprises some eight declarations by one Charles J. Mr. Charles
Behlow as to accurate examinations purporting to be made by him of certain cargoes Behlow.
of seal-skins taken from pelagic sealers.
In these depositions he professes to give the result of the examinations, reporting
in each case an extremely small number of male skins, and also reporting that the
female skins showed that almost all of them were in pup when taken. Inquiries lead
to the discovery, however, that Mr. Behlow's inspection of the cargoes in question was
so slight as practically to amount to no inspection at all. One example will suffice to
show Mr. Behlow's method. In the case of the " Emma Louise," Mr. Behlow reports
(United States' Case. Appendix, vol. ii, p. 402) that he examined 1,342 skins from this
ship, and he purports to give an accurate result of his investigation, showing 4 bulls,
123 males, 98 pups, and 1,112 cows. It will be seen from the affidavits of Charles
B. J. Barber, Charles D. Ladd, and J. A. Belodo (British Counter-Case, vol. ii,
p. 173 et seq.) that the examination of this large number of skins, which in ordinary
course would take a great many hours to examine, did not occupy Mr. Behlow more
than five minutes, and that he stated to them that it did not pay to inspect them, as he
was only paid 5 dollars a-day for doing it.
The skins were subsequently forwarded to London—to Messrs. Lampson—and
their Beport on them will be found on p. 112, vol. ii, British Counter-Case, Appendix.
This Beport shows that no less than 563 skins were too light to be those of bearing
females, and 306 of them are too heavy to be females at all, leaving a balance only of
469 which could have been bearing females.
The  various  statistical Tables  used throughout the United  States'  Case and United States'
Counter-Case   contain  many regrettable errors,  Avhich  will  at the  proper  time Tables,
be pointed  out.     It  is  sufficient here,  as  an  example  of  these  errors,  to  draw.
IM
urn ■mil' 'liHi'i   h    '
/ bP   \ x.2-if" 150
attention to the now admitted serious inaccuracies in Messrs. Lampson's Tables
(United States' Case, Appendix, vol. ii, p. 582), and to the extraordinary Tables
appearing at p. 369 of the United States' Counter-Case Appendix. This latter Table
has been examined by an actuary, with the result that he reports that every single
calculation of averages shown thereon is erroneous. This Table is particularly relied
upon in the United States' Counter-Case (p. 77), on the question of the average weight
of seal-skins in various years.
In a great number of cases deponents giving evidence for the United States have
been seen with reference to their affidavits, and almost invariably it has been found
that the statements made in the original deposition were capable of considerable
modification and explanation not contained in the original affidavit. Eresh affidavits
have been obtained from some of these deponents. In many cases the witnesses
directly contradict their former statements, and others even deny that they made them.
The following few examples will show with what caution the evidence put forward by
the United States should be received:—•
Statements in Depositions taken on behalf of
the United States,
Statements of same Witnesses in Depositions
taken on behalf of Great Britain.
Thorwal Mathason.—As to number of females in coast catch :—
" We caught over 1,000 seals off the coast; most
all females, and a great number of them had young
pups in them."—(United States' Case, Appendix,
vol ii, p. 339.)
" I told him [the United States' Agent] about
three out of five were females."—(British Counter-*
Case, Appendix, vol. ii, p. 167.)
As to number of seals lost
" It takes anywhere from one to twenty shots on
the average to secure a seal, and I think we got
about three out of five that we killed."—(United
States' Case, Appendix, vol. ii, p. 339.)
Henry Brown:—
A long deposition on sealing matters purporting
to be made by this witness appears in the United.
States' Case, Appendix, vol. ii, p. 317, in which he
states he was em] loyed on the schooner " Minnie,"
1890, the " Mascotte," 1891, and the " May Belle,"
1892
"He [the United States' Agent] did not ask me
how many seals were lost by sinking, but if he
had I would have told him very few were lost.
Last year, out of 243 seals taken by the boat 1 was
in, 5 were lost by sinking; this, 142 were taken,
and 3 were lost by smkhag. This is about the
usual percentage lost. . . . The first shot kills the
sleeping seal if the hunter is any good."—(British
Counter-Case, Appendix, vol. ii, p. 167.)
"In 1890 I was a seaman on the 'Minnie.' In
1891 a seaman on the 'Mascotte.' In 1892 I was
a seaman on the 'May Belle' until the 18th
April.
"I have never given any statement to any
person on sealing matters either at Victoria or any
other place. I am positive that I was not in
Victoria in the month of April last, and did not
then or at any other time or place make any statement to any person about sealing."—(British
Counter-Case, Appendix, vol. ii, p. 171.)
Alfred Dardeau.—As to proportion of females :
I Of the seals that were caught off the coast,
fully 90 out of every 100 had young pups in
them. . . . [In Behring Sea] most all of them
were femalas that had given birth to their young
on the islands."—(United States' Case, Appendix,
vol. ii, p. 322.)
"I consider half the seals caught by the
schooner ' E. B. Marvin' [the only sealing-vessel
he was ever on] during the time 1 was aboard of
her were females, and a large proportion of these
female seals were barren."—(British Counter-Case,
Appendix, vol. ii, p. 181.)
mm
■M
William Short.—As to proportion of females 1
"When cruizing along the coast our principal
catch was female seals in pup. . . . Fully 90 per
cent, of seals obtained by us in Behring Sea were
cows in milk."—(United States' Case, Appendix,
vol. ii, p. 348.)
" I told him that in some places we got most
males, and in others most females."—(British
Counter-Case, Appendix, vol. ii, p. 182.)
tsm 151
George Dishow.—As to number of females :—
" A large proportion of all the seals taken are
females in pup."—(United States' Case, Appendix,
vol. ii, p. 323.)
As to nursing cows in Behring Sea:—
" Most of the seals taken in Behring Sea are
females. Have.taken them 70 miles from the
islands, that were full of milk."—(United States'
Case, Appendix, vol. ii, p. 323.)
" Sometimes I got more males than females, and
sometimes more females than males. Taking the
years together, I think the catch was about half
and half."—(British Counter-Case, Appendix,
vol. ii, p. 57.)
" A few cows there [in Behring Sea] would be in
milk."—(British Counter-Case, Appendix, vol. ii,
p. 57.)
As to close season :—
11 think a closed season should be established
for breeding seals from the 1st January to the
15th August, in the North Pacific Ocean and
Behring Sea."—(United States' Case, Appendix,
vol. ii, p. 323.)
" I told him [United States' Agent] I thought
the Sea ought to be closed till about end of July,,
and then let us go in."—(British Counter-Case
vol. ii, p. 57.)
Niels Bonde.—As to proportion of females :—
"The seals caught along the coast after the
1st April are mostly pregnant females, and those
caught in Behring Sea were females that had given
birth to their young."—(United States' Case,
Appendix, vol. ii, p. 316.)
As to number of seals lost:—
IA green hunter will not get more than one out
of five; and I have known one hunter on our vessel
who shot eighty shots and got only four seals."—
(United States' Case, Appendix, vol. ii, p. 316.)
John Morris.—As to scarcity of seals :-
" Seals are scarcer now than in former years. . . .
The seal herd will soon become exterminated."—
(United States' Case, Appendix, vol. ii, p. 340.)
As to the proportion of females:—
" We began sealing off Cape Mattery, .... and
captured about 800 seals along the coast.    There
were not over 10 males in the whole lot	
About the last of April 1883 I sailed from Victoria,
on a seahng voyage, on the 'Onward,' Morris,
master, .... and captured about 400 seals while
I was on her. They were all females with pup,
excepting the yearlings, which were about one-half
male and one-half female. In February 1885 I
sailed from Victoria, British Columbia, in the
schooner ' 76,' Potts, master, .... and caught about
20 seals, all of which were pregnant females."—
United States' Case, Appendix, vol. ii, p. 240.)
" I would say that about 60 per cent, on the
coast were females, and about 50 per cent, females
in Behriag Sea."—(British Counte-Case, Appendix,
vol. ii, p. 94.)
| The poor hunter missed about half of those he
fired at; he wounded a few, which escaped; he
sunk a few."—(British Counter-Case, Appendix
vol. ii, p. 94.)
" Each year I have found the seals on the coast
about in the same numbers; . . . . taking it one
year with another they don't change much, if at
all."—(British Counter-Case, Appendix, vol. ii,
p. 170.)
" There is no getting out of the fact that there
are more males taken than females. If any one
says that I ever told him that more females were
taken than males he says what is not true."—
(British Counter-Case, Appendix, vol. ii, p. 170.)
James Bobert Jamieson.—As to number of seals lost:—
" The ordinary white hunter will, on an average,
lose over half that he kills and wounds."—(United
States' Case, Appendix, vol. ii. p. 331.)
[182]
" I think the average hunter would miss one-
third the seals shot at. . . . . Not over one seal
in twenty escapes after being shot by the hunter."
— (British Counter - Case, Appendix, vol. ii,
p. 180.)
2 B 152
As to proportion of females and pregnancy :-
!'::
II
'■■HP
"In hunthig along the coast, I think about
80 per cent, of those we caught were females, and
most   of   them  were  carrying
(United States' Case, Appendix.
their
vol. ii, p.
330.)
" Not over one in forty of the females caught on
the coast en route to Behring Sea were with pup
inside."—British Counter-Case, Appendix, vol. ii,
p. 180.)
Herbert Shelley Bevington.
" The deponent further said that.... the continual supply of fur-seal skin, which it is important should be constant and regular in supply,
is absolutely necessary to the maintenance of this
industry.	
" He has no hesitation in saying that the best
way to accomplish that object would be to prohibit
absolutely the killing of all seals except upon the
islands, and furthermore to limit the killing of
seals in the islands to the male species at particular times, and to limit the number of the males to
be so killed. If, however, the rights of individuals
are to be considered, and sealing in the open sea
is to be allowed, then deponent thinks that the
number of vessels to be sent out by each country
ought to be limited, and the number of seals which
may be caught by each vessel should be specified."
—(United States' Case, Appendix, vol. ii, p. 553.)
Herbert Shelley Bevington.—As to intermingling
As to prohibition of pelagic sealing:—
" I am not in favour of its [North-west catch]
total suppression.
" I am of opinion that the North-west catch is
a useful element in the market, and I think the
trade would object to its disappearance. Its total
suppression, in my opinion, woidd tend to create a
monopoly, and would place the whole business in
the hands of the persons for the time being
owning the islands, and this I should object to."—
(British Counter-Case, Appendix, vol. ii, p. 249.)
"That the differences between the three several
sorts of skins last mentioned [Alaska, Copper, and
North-west] are so marked as to enable any
person skilled in the business, or accustomed to
handle the same, to readily distinguish the skins
of one catch from those of another, especially in
bulk, and it is a fact that when they reach the
market the skins of each class come separately
and are not found mingled with those belonging to
the other classes."—(United States' Case, Appendix,
vol. ii, p. 551.)
" In my opinion, at least 25 per cent, of the
skins found amongst Copper Island skins are
undistinguishable from Alaskas, and in the same
way at least 25 per cent, of the skins found
amongst Alaskas are undistinguishable from
Coppers. In both consignments I have noticed
also a considerable quantity of skins which in a
less marked manner resembled the other class, but
I consider the bulk can be distinguished.'—
(British Counter-Case, Appendix, vol. ii, p. 249.)
L£on Bevillon, member of the firm of BevUlon Breres, of Baris.—As to prohibition of pelagic sealing:—
" We firmly believe that if the slaughter of the
North-west coast   fur-seals  is not stopped  or
regulated,   the   Alaska   fur-seals will   disappear"
■entirely."
[The marginal note to this paragraph is: "If
pelagic sealing is not stopped, Alaska fur-seals
will disappear."]—(United States' Case, Appendix,
vol ii, p. 590.)
H.
Boland.—As to intermingling:
" That the three classes of skins above mentioned [Alaska, Copper, and North-west] are
■easily  distinguishable from   each  other by any
" 5. Q. The next point, M. Kevillon, is as to the
last paragraph of your deposition, of which the
marginal note reads: 'If pelagic sealing is not
stopped, Alaska fur-seals will disappear.' Does
that marginal note fairly represent what you
meant to convey 1—A. No; I do not think it
does. I did not intend to convey that I was in
favour of any particular way of regulating the
question. All that I meant was that if what I
heard was true. I thought some sort of Becadation
was necessary for the protection of the seals.
" 6. Q. Would not the total suppression of all
pelagic sealing have the effect of giving the
Company leasing the islands an absolute monopoly
of the business in this class of seals ?—A. This
might be so; I do not know.
" 7. Q. Well, assuming that it would be so, do
you think it would be a result that would' be
beneficial to the fur-seal business ?—A. It depends
upon how the monopoly is managed, but, speaking
generally, I am against monopolies, and in favour
of a free market. I think monopolies injure the
■progress of business." — (British Counter-Case,.
Appendix, vol. ii, p. 230.)
11 admit that amongst the Copper Island catch
there is a certain percentage of skins which are
for   the most   part  undistinguishable from the 153
person skilled in the business or accustomed to
handling skins in the raw state.
"That the deponent has personally handled
samples of the skins dealt in by tbis firm, and
would himself have no difficulty in distinguishinof
the skin of the Copper Island catch from the skin
of the Alaska and North-west catch."—(United
States' Case, Appendix, vol. ii, p. 571.)
Alaska (or Pribyloff Island) catch, although that
percentage would be difficult to ascertain. At a
guess I should say that it was not more than
30 per cent., but of course the fur o£ some of
these woidd be less dense. I have also noticed in
the Alaska catch that there are in some particular
years skins which are undistinguishable from
Copper Island skins." — (British Counter-Case,
Appendix, vol. ii, p. 250.)
William Charles Blatspiel Stamp.—As to intermingling
"That skins of these several catches [Alaska,
Copper, and North-west] are readily distinguished
from each other	
"The differences between Copper and Alaska seals
are difficult to describe so that the3r can be understood by any person who has no .practical knowledge of furs, but to any one skilled in the business
there are apparent differences in colour between
the Copper and Alaska skins, and a difference in
the length and quality of the hairs which compose
the fur, and there are also apparent slight differences in the shape of the skin. The difference
between the skins of" the three catches are. so
marked, that they have always been expressed in
the different prices obtained for the skins."—
(United States' Case, Appendix, vol. ii, p. 575.)
"In my opinion, there is no absolute line of
demarcation between the Copper Island skins and
Alaskas, and in inspecting the consignments made
each year from the Pribyloff Islands, through
Messrs. Lampson and Co., I have found a certain
percentage of skins which were facsimiles of
Copper Island skins, and in the same way, inspecting consignments of Copper Island skins, I
have seen skins which had I seen them elsewhere,
I should have classed as Alaskas, and also a
certain number of the intermediate degrees of
similarity." — (British Counter-Case, Appendix,
vol. ii, p. 245.)
"William Charles Blatspiel Stamp.—As to prohibition of pelagic sealing:—
"That the continued existence of the fur-seal
business is dependent, in deponent's judgment,
upon the preservation of the seal herds frequenting
the North Pacific region, and is also a most important element in the industry, that the supply
of seal-skins coming into the market each year
should be regular and constant.
* # * *
"That some Begulations are necessary for the
preservation of the seal herds frequenting the
Northern Pacific region."—(United States' Case,
Appendix, vol. ii, p. 574.)
11 am not in favour of the suppression of the
North-west catch. In my opinion it would
be neither just nor practicable. It would not be
just, because I consider that the Canadians have a
right to catch the seals frequenting the sea
adjoining their own shores, and which feed to a
large extent on the food there found, provided
they do so in a proper manner.
" I think it would be impracticable, because the
only effect of entire prohibition would probably
be to cause the Canadian schooners to register
under the flags of other nations. I am of opinion
also that the North-west catch is a very important element in the market in keeping the price
of the articles within the reach of the ordinary
consumer."—(British Counter - Case, Appendix,
vol. ii, p. 245.)
Emile Hertz, member of the firm of Emile Hertz and Co., Baris.—As to inter
mingling :—
" That the said firm can distinguish very readily
the source of production of the skins when the
latter are in   their   undressed   state."—(United
..States' Appendix, vol. ii, p. 588.)
" I have from time to time seen among the
consignments of Alaska seals offered for public
sale by Messrs. Lampson and Co., of London, skins
resembling Copper Island skins, and among the
consignments of this latter sort skins resembling
the Alaska kind, but I believe it to be impossible
to affirm absolutely that these doubtful skins
belong to one or other of these two localities."—
(British Counter-Case, Appendix, vol. ii, p. 242.)
Norman Hodgson.
-As to sorting male from female skins :—
" I have handled a great many seal-skins, and
. can, upon, examination of the pelt, distinguish the
sex of the animal, except in the case of animals
under 2 years of age; these cannot always be
distinguished. I examined carefully this day 420
seal-skins on board the British sealing-schooner
" Henrietta, which skins, according to log and
sealing-book of said vessel, were taken in Bering
" At Unalaska I was placed on board the seized
vessel 'Henrietta' with Lieutenant Johnson, of
the ' Corwin,' to proceed with her to Sitka. She
had at the time of seizure about 400 skins, and on
our arrival at Sitka I was asked to inspect these
to determine the sex of the seals from which
they had been taken. Captain C. H. Hooper, of
the ' Corwin,' asked me to do this.    I told him it
Jt?**^
mmk it
■i'lij
154
Sea during the month of August 1892, and.find, to
the best of my knowledge and belief, the proportion of the sexes to be as follows:—Females, 361;
males, 33; young, the sex of which could not be
distinguished, 26.
(Signed) "N. HODGSON.
" Subscribed and sworn to before me at Sitka,
Alaska, this 21st day of September, 1892.
(Signed) "C. L. Hooper,
" Notary Public, District of Alaska."
— (United States' Counter-Case, p. 369.)
was impossible to ascertain this with any degree
of accuracy, but he said to go on anyway and do
my best, and I did so. I gave him a statement of
what I thought they were; he wished me to swear
to it, but I told him I could not do so, but the
statement I had given him was to the best of my
knowledge. After the skins are salted, I consider
it impossible to define the sex of the smaller skins
up to 3 years. With the old cows and old bulls,
of course, an expert can tell, but I consider it
quite impossible for any one to say, after skins
have been salted, that any particular skin was
that of one that had been carrying young and
from which the pup had been cut."—(British
Counter-Case, Appendix, vol. ii, p. 134.)
As to seals sinking:—
" The white hunter secures on an average about
60 or 65 per cent, of all fur-seals shot in the
season." — (United States' Case, Appendix ii,
p. 367.)
Charles Campbell:—
I Experienced hunters lose very few seals that
are shot, but beginners lose a great number."—
(United States' Case, Appendix, vol. ii, p. 256.)
"Majority of seals taken are females with
young."—(United States' Case, Appendix, vol. ii,
p. 256.)
" Lose very few seals by sinkin£
per cent, will cover my total loss in that respect."
— (British Counter-Case, Appendix, vol. ii,
p. 134.)
"I am no hunter, but this year I killed 15 seals,
and lost 1 only."—(British Counter-Case, Appendix, vol. ii, p. 77.)
"The principal part of my catch was young
males; there were more of them than females."—
(British Counter-Case, Appendix, vol. ii, p. 77.)
Clat-ka-koi.
-As to hunting on coast:—
" He does not hunt seal in schooners."
"This season this village got 86 seals,
canoes were manned from this village."
and four
I Sometimes a few seals follow schools of herring
into [Barclay] Sound and go out hurriedly. On
such occasions a few are killed."—(United States'
Case, p. 305.)
" I have hunted both from shore and from
schooner.''
" I told him [United States' Agent] that this
year our tribe had got 750 seals with nineteen
canoes fishing from the shore, and that we had got
more last year. I told him that one canoe owned
by a man named Kennedy, of the same tribe as I
am, had got 86 seals from the shore [in 1891] last
year."
" I told him [United States' Agent] I had seen
seals inside of Barclay Sound, and have killed
them as far up as " Turn Point," and even farther
up the canal. I told him that when the bait would
come in sometimes I would go out and get three
seals in a little while, and have gone a mile and a-
half outside of Village Island, when the herring
have been plenty, and seen lots, and that I have
seen a canoe get from 15 to 20 a-day there ....
Seals come into Barclay Sound every year, sometimes more than others; the more fish that come
in the more seals come."—(British Counter-Case,
Appendix, vol. ii, p. 150.)
Other questions referring to numbers of seals lost by sinking, composition of catch, &c, were asked
Clat-ka-koi by the United States' Agent, but his replies do not appear in the United States' Case.	
(See British Counter-Case.)
Dick," or Ehenchesut.—As to hunting on coast:—
"To his knowledge, no seals ever came inside
Barclay Sound, and that he never caught any
inside, and, moreover, he and his friends never
heard of any entering these waters."
" I told him [United States' Agent] we got skins,
every season inside of Village Island, in Barclay
Sound; I could not have told him anything else,
for I told him I had got them as far up as
Ecool."
ipbiiiii hi iw u&
"He states that during the last five months
twenty-five canoes belonging to the village,
manned by fifty men, have been engaged in sealing
off the coast of Vancouver Island. They obtained
in this time 10 skins per capita, in all, 500 skins.
.... The fifty men who went out from this
village joined schooners, two hi number, and the
seals were caught about 20 miles to southward
and westward of Cape Flattery. Of the number
aaaagbt, 300 were caught and killed by the natives
of this village."—(United States'' Case, pp. 306,
307.)
" I told him [United States' Agent] that our
tribe and the Opicbissets manned thirty canoes to
hunt seals from the shore this last season. He
never asked me how many skins the whole tribe
had got, but how many one canoe would get from
the shore in a season, and I told him 30. He then
asked how many one canoe would get from a
schooner in a season, aaad I said about 40 bunting
off the coast in a schooner I did not tell
him I have been hunting off Cape Flattery this
year, for I have not been sealing there for three
years or more."—(British Counter-Case, Appendix,
vol. ii, p. 155.)
Ehenchesut further testifies as to no decrease in the number of seals, composition of catch, &c,
and that questions were asked him on these points by the United States' Agents, but no reference to
them appears hi the United States' Case. He is stated in the United States' Case to be a Chief, but
testifies that he never was one, and never said he was. He was paid 5 dollars for his evidence by the
United States' Agent, and each of the men with him 1 dollar.
Imihap.—As to hunting on coast:—
Certifies as to evidence given by Ehenchesut to
United States being true.—(United States' Case,
p.. 308.)
Certifies to evidence given by Ehenchesut to
Great Britain being true.—(British Counter Case,
Appendix, vol. ii, p. 156.)
Chileta.-
As to hunting on coast :—
Certifies as to evidence given by Ehenchesut
being true.—(United States' Case, p. 308.)
[See testimony of Ehenchesut above.]
Told the United States' Agent that in a season
a canoe would get about 100 seals. He told him
that about 300 seals had been taken by sealing off
shore. " I never told the old man that seals did
not come in to Barclay Sound, for we kill them
every year away up, as far as Bird Bocks."—
(British Counter-Oase, Appendix, vol. ii, p. 145.)
John Margathe (Margotich).—As to seals in Barclay Sound :-
" States that fur-seals are rarely seen in Barclay
Sound, and are usually found off the coast at a
distance of from 5 to 15 miles. They are found
in clear water, and never close to the land."
" He is also agent for five sealing-vessels owned
in Victoria." — (United States' Case, pp. 308,
309.)
"I told him [United States' Agent] that the
seals came in every year amongst the islands, and
were also found off the- coast every year. I said
young pups were caught about the Sound and
coast  every  year;   some years  more  and  some
years less.     I could not have told the
captain that seals never came into the Sound, for
I have beeu twenty-five years on this coast, and
have always seen the seals come into the Sound
every year."
" Never said I was agent for five sealing-vessels,
"because I am not agent for any." — (British
Counter-Case, Appendix, vol. ii, p. 154.)
Wackenunesch.—As to seals in Barclay Sound :—
I States that seals do not come in close to shore
in this locality [Barclay Sound]. Seals are
caught off the coast at from 5 to 20 mifes.
Formerly Indians hunted them for food, but nowadays white men and Indians hunt them for their
fur, and they are rapidly diminishing in number.
Last year there were fewer than ever before.
This year the natives caught about one-half as
many as last. In his opinion the seals will soon
be extenninated, and in three years there will be
no more sealing."—(United States' Case, p. 311.)
[182J-
" I was .asked [by United States' Agent] many
questions, and said there were not many seals in
the Sound and along the coast this year, but last
year (1891) there were plenty. Said the reason
was that this year white men had come in and
hunted them away with guns and made them
wild He told me that the Indians formerly
hunted the seals for their food, but now they
hunted them for their skins. White man asked
me how long I thought it would be before there
would be no skins, and I said that would be impossible ; there wouM always be lots of skins, but
they would be harder to get, because the seaEls
were wilder."—(British Counter-Case, Appendix,
vol. ii, p. 158.)
2 S
~</ym xiii^it 156
Charlie Hayuks.—As to hunting on coast :-
Certifies to truth of what Wackenunesch said.
(United States' Case, p. 312.)
"A year ago last spring .... we took over
1,000 seals at Barclay Sound from the shore.
None of us Indians think the seals are any fewer."
—(British Counter-Case, Appendix, vol. ii, p. 146.)
William Bendt.—As to decrease, protection, &c.:—
In Appendix to United States' Case, vol. ii,
pp. 404, 405, testifies as to decrease in number of
seals, protection necessary, &c.
" Have never been out seal-hunting myself, and
personally know nothing whatever about the loss
through sinkage of seals that are shot, nor have I
any knowledge personally as to whether the seals
are decreasing or where they are caught."—(British
Counter-Case, vol. ii, p. 186.)
William Hermann.
-As to loss hunting:
• " One seal secured to two lost."—(United States'
Case, Appendix, vol. ii, p. 445.)
"I would not lose more than 5 seals in 100
that I would hit."—(British Counter-Case, Appendix, vol. ii, p. 118.)
Gr. Miner.—As to loss hunting:—
" 33 per cent, of the seals shot with the shot-gun
are lost."—(United States' Case, Appendix, vol. ii,
I 466.)
" He asked me the average number of seals
destroyed. I replied, " Not more than 10 per cent."
In this I included those that I know were killed
and would sink, and those that were badly
wounded and I thought would die afterwards.
" The actual number I see sink is much smaller
than that.   Last year not more than one of nine-
sank.    This year I got 384 skins, and  10  seals
sank and were lost."—(British Counter-Case, Appendix,-vol. ii, p. 97.)
As to proportion of females :—I
"A large majority of the seals killed in the
North Pacific are cows with pups, and in Behring
Sea cows with milk."—(United States' Case, Appendix, vol. ii, p. 466.)
"There is a-majority of females as a rule, both
on the coast and in Behring Sea, but this year our
catch did not contain more than 10 per cent, of
females, I think. I took about 10 per cent, of
females."—(British Counter-Case, Appendix, vol. ii,
p. 97.)
Charles Lutjens.—As to loss hunting:—
"We get 80 per cent, of those  we shoot."—
(United States' Appendix, vol. ii, p. 458.)
I In my opinion, 5 per cent, will cover the lost
seals by sinking after being shot Of course
a poor hunter will not do  so well."—(British
Counter-Case, Appendix, vol. ii, p. 122.)
Pffei
Brank Moreau.—As to loss hunting :-
We lose about 25 per cent, of those we shoot.
—(United States' Case, Appendix, vol. ii, p. 467.)
As to proportion of females :—
-90 per cent, of skins taken were 'cows, and
75 per cent, of cows taken were with pup.—
(United States' Case, Appendix, vol. ii, p. 467.),
" The loss from sinkage through being killed or
mortally wounded would not be greater than
8 per cent., which would cover the whole loss."—
(British Counter-Case, Appendix, vol. ii, p. 135.)
States that 80 per cent, are females, of which
75 per cent, are in pup, and in Behring Sea about
the same percentage in milk.—(British Counter-
Case, Appendix, vol. ii, p. 135.)
James Carthcut.—As to loss hunting:—
" I think on the average I got one out of every
three killed, but some of my hunters did not do
as well."—(United States' Case, Appendix, vol. ii,
p. 409.)
11 never was out in a boat with a seal-hunter,
but have seen hunters killing near the vessel, and
know that hunters do not lose many by sinking
and a really good hunter loses very few, not over
5 in 100."—(British Counter-Case, Appendix,
vol. ii, p. 138.)
cam 157
As to decrease of seals :—
I Seals were not nearly so numerous in 1887 as
they were in 1877. . . . I do not think it possible
for seals to exist for any length of time if the
present slaughter continues."—(United States'
Case, Appendix, voL ii, p. 409.)
As to proportion of females :—
" Always sealed along the coast and in Behring
Sea, and noticed no difference in the number of
seals from the first to the last year."—(British
Counter-Case, Appendix, voL ii, p. 138.)
States that he first went sealing in 1883.—
(British Counter-Case, Appendix, vol. ii, p. 138.)
" 85 per cent, of my catch of seals along the " About 60 per cent. I think would be about
coast of the North Pacific Ocean were females."— the average run of females, and it would run
(United States'Case, Appendix, vol. ii, p. 409.) about   the   same   in   Behring   Sea."—(British
Counter-Case, Appendix, vol. ii, p. 139.)
although
if this should be
It is unnecessary to  give any further examples,
required the above could be easily multiplied.
Sufficient examples have been given to show the unreliable character of a great
proportion of the evidence produced by the United States, and with what caution it
ought to be received.
i-fM
A£13&Z£l i!
i
m
I
J33Hfc9 (    159   )
BEHRING SEA ARBITRATION.
INDEX TO BRITISH ARGUMENT.
Regulations
Alaska-
Cession of .. ,.
United States' Statutes dealing with
Aleutian Islands.    Passes through
Algerian coral fisheries .. ..
Argentine Republic.    Seal Fishery
Argument'—
Part    I.    First 4 points of Article VI
„    II.    Point 5 of Article VI
,,   lib    Regulations
„   IV.    Damages and compensation .. ,.
Propositions maintained by Her Majesty's Government in
Scheme of .. , .. ., '.. ..
Article VI—
Conclusions established by arguments on .. ..
Propositions maintained by Her Majesty's Government on Point 5
Questions for decision under.. .. .. ,,
Article VII of Treaty—
Origin of .. .. ,. .. .. ,.
Regulations contemplated under ..
Australian Pearl Fisheries Legislation        .. ..
Bed of the sea sometimes regarded as territory .. ..
Behring- Sea—
Area of   ..
Cannot be made a close sea
Frequented by foreigners in early years
Not land-locked
Open to all nations prior to 1799-        .. ..
Part of the Pacific.. .. .. ..
Regulations limited to eastern part of..
Behring Strait.    Width of
British Columbia.    Winter home of the fur-seal
,.      Commissioners?.    Regulations proposed by ..
British—
Fishery legislation .. .. ..
Vessels were seized outside territorial waters     ..
Budington, J.    Deposition of, on Falkland Island.    Seal Fi
Canada.    Fisheiy Act of 1886     .. .. ..
Cape of Good Hope.    Seal fishery legislation
Cases cited—
Reg. v. Keyn
Le Louis.. .. ..
Cope v. Doherty     .. .. .. ..
Jeffreys v. Boosey ..
BlaiD re Sawers
Macleod v. Agent-General fo:
" Carolena."    Seizure of
Caspian Sea.    Seal fisheries in
Cession of Alaska—
Rights acquired by United States
United States' Statutes dealing with
Ceylon pearl fisheries legislation  ..
Chile seal fisheiy legislation
Claim of United States—
Different forms in which it is presented
To protection apart from property
Colombian pearl fisheries
Compensation—
British claim for
United States' claim for
[182]
New South ^V 160
INDEX.
Page.
Contentions of—
Great Britain
United States' Government
Conventions.    Legislation by
Coral fisheries.. ..
«»
10
10
38
53
Damages—
British claim for    .. .. .. •• . .
Cases quoted in reference to.. .. .. ..
Quest ion of prospective earnings .. .. ,.
United States' claim for        .. .. .. ..
Dawson, Judge.    Decision of, in cases of "Thornton" and "Dolphin"
Distinction alleged between skins of seals on two sides of Pacific
Domestic.    Fur-seals cannot be classified as .. ..
"Dolphin."    Case of   .. .. .. .. ..
Exceptions to law of nations        .. .. .. ..
Exclusive rights of United States are lost when seals are on high sea
71
72
73
74
25
30
30
25
40
.33
Falkland Islands.    Seal fishery legislation .. ..
Ferce natures—
Fur-seals are '.. .. ..
Laws of Great Britain and United States as to, identical
Fishery Conventions.    Arguments to be deduced from
Fish-
Common right, of all men to take on high sea   ..
Food of fur-seal     ..            ..             .. ...
Food of fur-seal derived from the sea         .. ..
Foreign seal fishery, legislation.    Conclusions from   ..
Freedom of the sea defined          ..            .. ..
French fishery laws      ..             ..             .. ....
Fur-seal-SB
Cannot be classified as domestic          .. .,
Duration of stay on shore     .. ..
Food of, derived from high seas          .. ..
Is pelagic in habit ..
Not provided with food by man           .. ..
Undoubtedly ferce natures     ..             .. ..
•Great Britain.    Contentions of    ..             .. ,,
•Greenhow includes Behring Sea in Pacific ..
Greenland—
Fisheries.    Protection of                     .. ,.
Seal fisheries.    Legislation for             .. ..
Handford, Judge.   Decision of, in case of | J. G. Swan "
" Herd."    Term only applicable to seals when on islands
High sea.    Claim to protect seals in           .. ..
Home of fur-seal as applied to Pribyloff Islands inadmissible
Hovering Acts—
United States' ArgMent based on      .. ,.
Do not extend limit of territorial waters .,
Intermingling of seals—
Between St. Paul and St. George Islands ..
In North Pacific    ..            ..             .. ,.
International law—
Cannot create new principles               .. .,
Derived from practice of nations ..
Sources of              ..             ,.            .. ..
Irish oyster fisheries legislation .. .. M
Italian coral fisheries    ..            ..
41
4
31
46
37
69
•28
49
7
52
30
28
69
28
31
4
10
19
38
45
26
29
8
28
60
60
28
29
35
35
34
50
tVii'
\M:
nli*1
" James G. Swan."    Case of the.. .. ..
Japan seal fisheries legislation     .. .. H
Jurisdictional questions—
Cannot be lightly dismissed .. .. ..
Fully discussed in British Case and Counter-Case
Stated by United States to be of secondary importance
Kent.    On sources of international law      ..
Laws of  other nations.    Objects of  United States'
discussed .. .. ., g.
Legal principles.    Examination of ,,
" Le Louis."    Case of .. .,
" Lisi&re " as distinguished from north-west coast     ..
Argument
derived   from,
26
49
5
5
5
34
39
55
56
20 ,r%L/r\    /&&
INDEX.
161
Lobos Islands.    Senl fishery
Low-watermark.    Limit of territory
Malice not alleged against pelagic sealers
Management does not constitute possession..
Mexican pearl fisheries .. ..
Modus vivendi for 1892.    Agreement for   ,. ..
Nations can only legislate for their own nationals on high seas
Naturalists admit no distinction between seals on two sides of
Newfoundland seal fishery legislation ,. ,.
New Zealand—
Seal fishery legislation .. ..
Mis-statement in United States' Case as to
North-west coast—
Extended to Behring Strait .. ..
Includes whole north-west coast of North America
Limited meaning placed on, by United States incorrect
Norwegian whale fisheries .. ., .,
Notice issued by United States in 1845
| Onward."    Seizure of .. .. ..
Pacific Ocean—
Commonly used to include Behring Sea ..
Included Behring Sea in Treaty of 1825 ..
"Pearl."    Case of the   .. '
Pearl fisheries legislation—
Australian .. .. .. .. ,
Ceylon     .. .. .. .. ..
Colombian
Mexican .. .. .. ,.
Pelagic sealing—
United Slates have no legal right to impose regulations on
,, |   maintain, must be prevented everywhere
Phelps, Mr.    On rights of property ' .. ..
Pollock and Wright.    On a.mmo\s ferce naturae
Possession—
Conditions of, do not exist except at moment of capture
Examples of .. .. .. ..
Right of, ceases when seals leave the islands     ,.
Preface .. .. .. .. ..
Pribyloff Islands.    Description of ..
Property and possession of wild animals applied to seals
Property, claim of, by United States
Not connected with Regulations ,.
Summary of ,. .. .. ..
Unfounded .. .. ..
Protection—
Abstract right of, cannot exist ..
Apart from property, claim to ..
Claim admitted to be novel   ..
Right of, does not exist h\ Behring Sea ..
Rights of a Government as to ,,
Quarantine Act, 1825   ..
Questions at issue between Her Majesty's Government and the
,,       raised by Article VI stated
Raids are a violation of possession rights of United States
Regulations—
Argument addressed to question of ..
For senl fisheries—
Argentine Republic       .. ..
Canada .. .. .. ..
Cape of Good Hope       .. ..
Chile .. .. ..
Falkland Islands .. .. ..
Greenland (Jan Meyan) .. ..        Hjjjl
Japan .. gSfJalE • •
Newfoundland.. •. ..
New Zealand .. .. •.
Russia .. .. ..
Uruguay
Her Majesty's Government willing to join in
Involve curtailment of rights..
orth
Page.
# ♦                         • •
48
• •                         • •
59
..
i 32
• •                    • *
33
• •                     ■ •
54
..
2
..
38
'acific
29
..
44
41
..
42
19
• *                         * •
21
• •                         • ■
19
• •                         • •
53
• *                         • •
21
United St
tes
19
21
18
52
51
54
64
9
63, 64
34
31
33
32
27
1
15
37
S9
34
37
36
7
27
36
62
8
11
32
63
48
43
43
48
41
45
48
44
41
46
48
4, 63
69 162
INDEX.
Page.
>i
rights..
Regulations (continued)—
Limited to eastern half of Behring Sea.. ..
Must apply to breeding islands as well as pelagic sealing ..
Mr. Wharton's proposal for ..
Must be just to all concerned .. ..
Position of United States' Government as to
Should be binding on all nations .. ..
Waters to be affected by      .. .. .. • •
Revised Statutes of United States.    Powers of
Rights claimed by United States have no analogy to other fishini
Rights of United States not violated by taking seals in high sea
Russia—
Alleged claims of   .. .. .. • • . •
Did not claim rights asserted by United States
Did not exercise jurisdiction over Behring Sea  .. ..
Seal fishery legislation .. .. ..
St. Helena Act, 1815    .. .. .. ..
Scotch herring fisheries legislation ..
Sealing schooners.    Alleged interest of United States' citizens in
Seals—
Animals ./era natures .. .. ..
Laws for protection of, cited by United States
Partly controllable on land, but quite uncontrollable at sea
Said to be a product of the soil .. .. ..
Seizures of British vessels—
In 1886  ..
Not analogous with vessels seized under Hovering Acts   ..
Sitka.    Trial of British crews at ..
Skins.    Those from Pribyloff Islands often classed as from Commander
vice versd .. .. .. «• ..
Swimming animals.    Claim to property in, not analogous with that
oyster beds .. .. .. .„ ..
Islands
in pear
and
1 oV
Territorial Waters Jurisdiction Acts, 1878
*'Thornton."    Case of the .. .. ..
Treaty—
Of 1824.    Discussed .. .. .. .. .. ..
,, Included Behring Sea        .. .. .. .. ..
Of 1825.    Analysis of .. .. .. ..
I Discussed .. ..
„ Proves Behring Sea is a part cf the Pacific     .. ..
Treaties of 1841, 1843, and 1859 prove that North-west coast included shores of
Behring Sea ., .. .. „. P§sSJh
Treaties show Russia never claimed rights asserted by United States     ,.
Treaty of 1867—
United States' Arguments based on .. .. ., ..
Did not acquire rights over non-territoiial waters .. .. .,
Translation of, incorrect        .. .. .. .,
Tribunal, decision of, must follow laws of both parties .. ..
Ukase of 1799.    Character of     .. .. .. .. ..
Ukase of 1821—
Character of .. .. ., .. .. ...
Notification of, to Great Britain .. .. .. .. .,
Protests against, by Great Britain and the United States
Withdrawal of Russian claims .. .. ..
United States—
Argument derived from laws of other nations    .. .. ..
Claims, general view of
Claims, varying contentions in .. ,, ., .. .,
Contentions as to fishery laws of other nations .. .. .. ..
Contentions, varying nature of
Position as to Regulations    .. .. ,.
Statutes dealing with Alaska..
Uruguay seal fisheries legislation ..
Water boundary-line.    Meaning of
"West, Sir L. S., protest by, against seizures
Wharton, Mr., on Regulations      .. ..
White Sea seal fishery legislation..
Winter home of fur-seais .. .. ..
Zone.    Proposals for, by Mr. Blaine .. .. ,
i.   S
o a
65
70
65
9
9, 63
9, 67
64
6
28
33
15
5
12
47
61
51
73
27
40
30
1, 2, 71
61
1
30
59
38
1, 25
18
19
20
19
21
21
5
24
12
22
36
16   '
17
17
17
18
39
3
4
49
10
9
21   22-
48
1
65
46
29
67
SSBB
kS5MSS£5?5SM
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