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Fur seal arbitration. Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty… Bering Sea Tribunal of Arbitration 1895

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Array       FUR   SEAL   ARBITRATION.
' PROCEEDINGS
OF THE
Tribunal of Arbitration,
CONVENED AT PARIS
TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY so, 1893,
DETERMINATION OF QUESTIONS BETWEEN THE TWO GOVERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES
WATERS  OF  BERING SEA.
VOLUME   X.
WASHINGTON:
GOVERNMENT  PRINTING  OFFICE.
1895. fso to. 1
S3i34
C<f.A BEHRING SEA ARBITRATION.
ARGUMENT
HER MAJESTY'S GOVERNMENT.  TABLE OF CONTENTS.
The Argument is arranged as follows : page.
Preface  1_10
Statement of questions raised in Article VI of the Arbitration Treaty  11
Propositions maintained in Part I of the Argument  11
St atement of vary ing character of the United States contention  12
The arrangement of the Argument set out  13
ARGUMENT. .
Part I.
Argument addressed to the first four questions for decision under Article VI
of the Arbitration Treaty  14
Conclusions established by the foregoing argument  26
Part II.
Argument addressed to the 5t>h 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?  27
Propositions maintained in Part II  27
Statement of the law of the United States and Great Britain as to prop-
Application of principles of property and possession of wild animals to
The claim to protection apart from property '. 36
The United States argument from suggested analogy of laws of other
nations considered and answered  39
The Falkland Islands  41
New Zealand  41
Cape of Good Hope  43
Canada  43
Newfoundland  44
Greenland or Jan Mayen fisheries  45
The principles of Fishery Conventions considered  46
Russia.   White Sea  46
Behring Sea and Sea of Okhotsk  47
Caspian Sea  47
Uruguay  48
Chile  48
Argentine Republic  48
Japan  48
Irish oyster fisheries  50
Scotch herring fisheries  51
Ceylon pearl fisheries : - -.'  51
Australian pearl fisheries  52
France  52
Algerian coral fisheries  53-
Italian coral fisheries  53
Norwegian whale fisheries  53
Colombian pearl fisheries -  54
Mexican pearl fisheries -  54
3 4 ARGUMENT  OF  GREAT  BRITAIN.
Argument addressed to the 5th question, etc.— Continued. 1
Examination of legal principles referred to in analysis of foreign laws...
I. Extra-territorial laws of a State have no application to foreigners.
II. Laws of Great Britain have no extra-territorial application to
foreigners	
III. British colonies have no power of extra-territorial legislation for
IV. How far international law recognizes a right to possession of parts
of the bed of the sea considered	
•V. Absence of analogy between protection of swimming animals and
of oyster and coral beds demonstrated    	
VI. Absence of consent of nations to principle of right claimed by the
United States	
Examination of the United States argument based on the " Hovering
Examination of the United States argument based on the " St. Helena
Act, 1815"	
Examination of the United States argument based on the " Quarantine
Act, 1825"	
General conclusion on this branch of the Case	
Part III.
Argument addressed to the question of Regulations	
Part IV.
Damages and compensation—
1. British claim for damages	
2. " " compensation  	
3. United States claim for damages	
4. " "       compensation	
APPENDIX.
No. 1. Remarks on the United States Counter-Case	
No. 2. Remarks on the United States Evidence	 BEHRING SEA ARBITRATION.
ARGUMENT OF HER MAJESTY'S GOVERNMENT.
PREFACE.
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
February, 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 " without
conclusion of any questions which may be found to be
involved in these cases of seizure."
2 The men in custody were released under circum
stances 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 Begula-
tions 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. ARGUMENT  OF  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
3 regard to 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 nowpre-
sented 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 condemning such ships as engage in that pursuit.
This is, indeed, hardly a full statement of the pretensions ARGUMENT OF  GREAT  BRITAIN.
advanced, for, carried to their logical conclusions, 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 Behring 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
Begulations, the Government of the Queen will willingly
join with the United States in seeking the aid of this impartial Tribunal in the consideration of Bules 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 case, 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.
Seldomhave 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 Bussia;
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.
Fur-seals are undeniably animals ferae naturae, 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 8 ARGUMENT  OF  GREAT  BRITAIN.
Finally, 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:
5 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 prelagic industry Avere 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 Bussia the title to cede, for Bussia could
not assign what she did not possess ?
In this connection the Treaties of 1824,1825, and 1867
are important, since their text and history show that Bussia 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
Bussia did not even pretend to cede the rights now asserted.
Yet the Sections of the Eevised Statutes relating to
Alaska under which the British vessels have been condemned, as interpreted by the Courts of the United States,
are based on domiuion 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
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 war-
unitea states ranted by the Treaty of Cession, the answer is complete;
■■™)se'i, p?e5js «itbe law of nations does not recognize such an extension of
m- municipal law against foreigners; and the law, in so far as
it applies to foreigners, is ultra vires.   But if this interpre- ARGUMENT OF  GREAT  BRITAIN.
tation 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 Bussia, 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.
X"et not wholly is it rested on property. The greatest
jurists of the world have dealt with "property" and "possession " in such fashion, have defined their meanings with
such precision of thought and language, that it is not surprising the United States should shrink from the hopeless
task of attempting to formulate a new species of ownership.
And so, at last, driven from all the standpoints of admitted
and long-known rights, the argument of the United
7 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, are
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. 10 ARGUMENT OF1  GREAT BRITAIN.
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
8* successfully, 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 "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.
From giving its high sanction to these views this Tribunal may well shrink; and it is with no mere idle use of
high-sounding phrase that Great Britain once more appears
to vindicate the freedom of the 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 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 ARGUMENT OF  GREAT BRITAIN.
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
9 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
tight which the United States now claim, and admits the
necessity for the concurrence of Great Britain. Her Majesty is, and always has been, ready to concur in Eegula-
tion8 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 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 Begulations. 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
10 Majesty's Government 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. ARGUMENT  OF  GREAT  BRITAIN.
Finally, 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. Failing the establishment of the right of property,
they claim a right to protect the fur-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. Freedom 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 Govern-
11      ment thus generally stated, the following Argument
is respectfully submitted for the consideration of this
Tribunal of Arbitration.
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 this Treaty?
(4.) Did not all Russia's right: (a) to jurisdiction, (b) 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 (6) 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? ARGUMENT  OF  GREAT  BRITAIN.
The points raised by these questions are met by Great
Britain in this written argument by establishing the following principal propositions:
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
12       asserted a jurisdiction over so much of 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:
Tl
latRu
ssiadidn
Hon
over
he whole
sea,
nor di
d she at
tern
torial
dominion
4.
That
the with
diet)
on wa
sconfirm
of the claim to 100-mile juris-
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 1S67, 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   STATES  CONTENTION.
In view of the great complexity and varying nature of
the United States contention, the following brief survey
of the manner in which their case has been presented is
submitted, ARGUMENT  OF  GREAT BRITAIN.
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 light 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.
14 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  united states
Ocean. ca8e,P.i2.
It washes the north-western parts of the coasts of America and the north-eastern part of Asia.
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 States  ibid.,p.ii.
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 Commander 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 Fox 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.
15
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
* Geographical miles in all cases, unless otherwise stated. ARGUMENT  OF  GREAT  BRITAIN.
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.
PRIBYLOFF ISLANDS.
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.
WATERS BETWEEN THESE ISLANDS AND THE MAINLAND
CANNOT BE UNITED STATES TERRITORY, NOR WITHIN
THEIR TERRITORIAL WATERS.
The position of the Pribyloff group of islands in the open
sea is therefore such that no claim could legitimately be
made by 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.
BRITISH VESSELS WRONGFULLY SEIZED.
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 RUSSIA.
It is contended by the United States that Bussia asserted
and exercised jurisdiction over Behring Sea not con-
16       sistent with the foregoing 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,
1.799 to 1821,
1821 to 1825,
1825 to 1867,
1867 and subsequently. ARGUMENT  OF  GREAT BRITAIN. 17
Prior to 1799. r
BEHRING SEA OPEN TO ALL NATIONS.
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  ^tiBh  Case-
right to a highway through the sea at all its openings had P'  '
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 Bussia.
Russian Ukase of 1799.
CHARACTER OF THE FIRST UKASE.
This Ukase deals with the coast of America and the  British Conn-
islands, giving commercial privileges to the Russian-Ameri- ter-Case> p- u-
can Company.
The territory was claimed by right of discovery; aright
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 CaYni Ad f^^
the Company of 1844 expressly uses the term "colonies" voiTi,p.P3Po!n 4
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 Russian 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 p.^wj.
17       dominion or jurisdiction over Behring Sea untouched.
The highway to the Arctic Ocean was recognized, and
was afterwards used; also fishing rights as on the high sea.
1799 to 1821.
RIGHTS 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
Behring Sea was soon frequented by foreigners coinpet-p. 37.
ing with the Company in navigation, exploration, and trade.
B s, pt x 2 13 ARGUMENT  OF  GREAT  BRITAIN.
Russian UJcase of 1821.
CHARACTER OF THE SECOND UKASE.
ibid., Appen- Russia did not shut Behring Sea, nor claim it, or any part
p"iv1bid,p^tof it, as territory; she only claimed by this Ukase exclu-
li, No. 1. sive sovereignty on territory in America from Behring
Straits as far south as 51° N., together with exclusive jurisdiction 100 miles from the coast,
united states    The claim was of territory on land, and jurisdiction to
Toft P^Pi6.6ndiX' 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.
1821 to 1825.
NOTIFICATION OF UKASE.
This Ukase of 1821 was notified to Great Britain and the
United States.
United states    The Rules annexed to it, and the Charter issued at the
voTtpp^i™^' same time, applied to Russian subjects and to foreigners. .
PROTESTS OF GREAT BRITAIN AND UNITED STATES.
. British Case    A protest was at once entered by both Governments, the
P.P4.en 1X'T0'" British protest being directed both to the claim of exclu-
ABlendk vol8-' s*ve sovereignty over the territories, and of exclusive rights
pPrPtri,No.2.'11'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.
British case, Both protests were at first met by explanations of-
§fr?roi.H,plartl8 the reasons for the Ukase: by statements that the
i,pp.3 and 24. Powers were expressly to understand that the en
trance 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.
British case. After these protests, Russia issued instructions to her
cruizers practically suspending the effect of the Ukase in
so far as the claim to maritime jurisdiction was concerned.
WITHDRAWAL  BY RUSSIA OF HER CLAIM TO   MARITIME
JURISDICTION.
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. ARGUMENT  OF  GREAT  BRITAIN. 19
The United States also informed the British Minister to J.bId- p- «.
the United States of the same fact, and this withdrawal Ada™1)6'011 *°
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 Russian Am- British case,
bassador in somewhat guarded language to British ship- Aopj>endix,voi.fl,
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 the "Pearl" ^f^ Cas6,
was disavowed by the Russian Government.
The United States Treaty of 1824.
The United States having objected to the claim of territory by Russia south and east of Behring Straits, as far
south as 51°, and also to the claim of maritime jurisdiction
along the shores of that territory; further, Bussia having
agreed to withdraw that claim of maritime jurisdiction; the
Treaty was entered into to carry out the arrange-
19 ments which had been come to. It is therefore 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" B™*is7h; 7^Me'
to include Behring Sea; it was commonly so used in de-pp' ' '
spatches, 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 necessarilyused 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
by the Ukase. 20 ARGUMENT  OF  GREAT  BRITAIN.
The British Treaty of 1825.
ltis submitted that the Treaties of 1824 and 1825 declared
and recognized the rights of the United States and Great
Britain to navigate and fish 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
" north-west coast" or "north-west coast of America " 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
20 from Behring Straits to 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 indiguie, on the other hand, the reciprocal liberty of access and commerce with each other's
territories secured by Article VJI 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 north-west coast. In the words
of Mr. Canning, writing in 1824, the object was to secure
reciprocal access to the territories of the respective Powers.
British conn- This was effected by adopting, as Article VII of the
ter-case, p. 48. British Treaty, Article IV of the United 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 in Article III of that Treaty. This coast
was clearly the whole of the north-west coast from Behr-
ring 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.
ANALYSIS  OF THE TREATY.
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 ARGUMENT  OF  GREAT BRITAIN. 21
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.
21 Article VII, on the other hand, dealt with the 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 Bussian 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 Trea-   British conn
ties of 1841,1843, and 1859, concluded by Russia with Greatter0asei'p-51-
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 Bussia 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.
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 v,.,' ]'
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  united states
22 of the United States relating to customs, commerce,  as6,p'
and navigation over all the mainland, islands, and
waters of the territory ceded to the United States by Russia.
Section 1956, Revised Statutes, Chapter 3, title 23, pro- rbid., APPen.
hibiting the killing of fur-seals and other animals within dix. vol.i,p.96.
the limit of Alaska'Territory, or in the waters thereof.
"An Act to provide for the protection of the Salmon  ""i-.p-s®-
Fisheries of Alaska, 1889," section 3, declaring that Section 1956, above, shall "include and apply to all the domin- ARGUMENT  OF  GREAT  BRITAIN.
ion 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 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.
TREATY OF CESSION, 1867.
[United States translation and construction of the Treaty incorrect.]
 de Toutes les Russies s'engage   ....
Etats-Unis   ....    tout le territoire aveo droit de
ictuellement poss£d6 par Sa Majesty sur le Continent
d'Am6rique ainsi que les lies contigues, le dit territoire 6tant compris
A line running through Behring Straits, and thence to the southwest to a point between Attu and Commander Islands, is drawn as "la
limite oocidentale des territoires c^d6s, de manifere a enclaver dans le
territoire c6&4, toutes les lies Al^outes situ^es a l'est de ce m&ridien."
The eastern boundary was the line of demarcation traced by the
Treaty of 1825.
23 Article II.
i, &c,
Article VI.
" .... La cession du territoire avec droit de souverainet6
faite par cette Convention, est d6clare"e libre; .... et la cession ainsi faite transfere tous les droits, franchises, et privileges
appartenant actuellement a la Rnssie dans le dit territorie et ses
dependences."
1X' United States C
"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 herein set forth   .    .    .    ."
A line running through the Behring Strait, and thence to the southwest to a point between Attu and Commander Islands, is drawn as
"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." ARGUMENT  OF  GREAT BRITAIN.
Article VI.
"• • • • The cession of territory and dominion herein made is
aereby declared to be free, .... and the cession hereby made
conveys all the rights, franchises, and 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 souverainet6" is translated "the territory and dominion."
24 The accurate translation is, "The territory, to
gether 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 " territoires code's "
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 in Article I, i. e., sovereignty over the ceded territories.
In the Vlth Article the expression " le dit territoire et ses
d6pendances" is translated "the said territory or dominion
and appurtenances thereto."
The accurrate translation is, "The said territory and its
dependencies."
On these mistranslations oi t,ax> jureaty oi session, are q^^79.
founded the United States argument and certain judicial
decisions, to the effect that the waters referred to in the
Statutes were included in the dominion ceded by Bussia,
and include aU Behring Sea to the east of the boundary-
line.
Further, 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 1867 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 ARGUMENT  OF  GREAT  BRITAIN.
over the high sea on either side is claimed.   Such
25       definition of a 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 defining the limits of New Zealand, which plainly refers only to
38 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.
Appendix!    Dawson, j.? held that "all the waters within the bound-
p. lu.     ' ary 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.
.,p.ii5. Dawson, J., held that Bussia had claimed jurisdiction
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.
26 Case of the "James O. Swan," 1892.
gunited states    Handford, J., held that Russia had asserted authority
Case, Appendn
over Behring Sea by assuming to transfer to the United
States certain territory and dominion with definite boundaries, including a large 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. ARGUMENT  OF  GREAT BRITAIN.
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.
CONCLUSIONS ESTABLISHED BY  FOREGOING ARGUMENT.
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,
Bussia 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, Bussia 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.
27 To Question 3.—That Behring Sea was included in
"Pacific Ocean" in the Treaty of 1825.
That Russia neither held nor exclusively exercised 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 Bight of Protection or Property in the
Fur-seals f
1. That seals are animals ferae naturae.
2. That the only property in animals feras naturae 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.
6. 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 ani
mals, 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. 28 ARGUMENT  OF  GREAT  BRITAIN.
British conn-    The fur-seal is not only a marine animal, but pelagic in
ter-case, p. ioo. habit, spending most of its time at 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.
ibid., p. 101.       The food of the fur-seal is entirely derived from the sea.
ibid.!p. 142. The expression "home" or "sole home," 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
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 conn- ' in the summer months, most of the seals go northwards
ase, p.    • for breeding purposes.   Some go to the Commander Islands,
others to the Kurile Islands and Bobben 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 between the 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.,p. 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 year.
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.
rbid.,p.i4i. 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.u9. The expression "Alaskan herd" is simply a fanciful
creation, supposed to lend, by the use of the term " herd," ARGUMENT  OF GREAT BRITAIN.
some colour to the United States contention of right of
property and proteetion.
|    The term " herd" is applicable to seals (if at all) only   ibid.,
' 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.
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 controllable  Britis
when on land, this results from their helplessness whileterCa8'
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
ferae natural.
They are unused to, and incapable of, any but slow 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 killing,   iMd.,
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
31 therefore wanting in the case of fur-seals.   Man 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. ARGUMENT  OF  GREAT BRITAIN.
No scientific authority can be adduced in support of the
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.
Statement of the Law of the United States and Great Britain
as to Property in Animals " Ferae Naturw.n
The common law in force both in America and England
as to animals ferw naturw is identical.
PROPERTY IN WILD ANIMALS DEPENDENT ON POSSESSION.
This law recognizes no property in animals ferw naturw
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 ferw 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 his 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.
32 Young v. Hitchens (6 Q. B. 606), fish only partly
in a seine-net were held not to be in possession.
R. v. Revu Pothadu (Ind. L. R. 5 Madras 390), fish in
irrigation tanks in India were held not to be in possession.
REASON FOR RECOGNITION OF EXCLUSIVE RIGHT.
The law does not give to the owners of laud 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.
VIOLATION OF THE RIGHT.
The exclusive right to take possession may be violated;
but as the right comes to an end when the animals leave ARGUMENT OF  GREAT BRITAIN.
the land in respect of which the right arises, such violation
can occur only while the animals are on the land, as by a
I trespasser taking possession of them.
Such a violation is committed by raiders on the islands,
and the property in the seals taken bv them is in the
United States.
OASES PUT BY THE UNITED STATES.
With reference to the cases put by Mr. Phelps and Mr. mated states
Blaineof killing fish by scattering poison in the sea, destroy- vol!; w$a,vfr.
ing them by dynamite, and placing dangerous obstructions
and derelicts in the sea to injure commerce or fisheries, it
is denied that they present any analogy to the case now
under discussion, which is simply that of fishing by lawful
methods.
THIS IS A QUESTION OF RIVAL TRADING MERELY.
All persons alike possess the right of fishing 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.
WHICH THE LAW PERMITS.
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
his 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 of the same character
as the former: it only differs by reason of its being exclusive whilethe seals are on the land.
NO MALICE ALLEGED.
No act of malice towards the United States or the lessees of thePribyloffs 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
33       for their profit, and in the exercise of their legal
rights of fishing possessed by them in common with
all mankind.
PRINCIPLE OF LAW APPLICABLE.
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 fish- ARGUMENT  OF  GREAT  BRITAIN.
ermen 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.,
Application of Principles of Property and Possession of
Wild Animals to Seals.
THE DISTINCTION IS FUNDAMENTAL.
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 ferw naturw, 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.
THEIR MANAGEMENT IS NOT TAKING POSSESSION.
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.
RIGHTS OF OTHERS TO CAPTURE.
The possession of the United States is thus seen
34       not to be established while the seals are 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.
CLAIM OF PROPERTY UNFOUNDED.
The United States claim to property, or to any greater
right than an exclusive right to take possession while on ARGUMENT
iiid i
that the seal fishery  united states
e shores it is carried %\ iPg?<*
oh
7 way advanced
SOURCE AND FOTTNDAa
It is incorrect to say th
arisen from precedents t
P INTERNATIONAL LAW.
best international law has
ive been established when
, undeterred by the discus-
10 made would not be inter-
al law is evolved by a more
rocess.   Its source is thus
1 Triquet v. Bath, Lord Ma
it to have been the opi
ice, and Lord Mansfield, I
ity of writers; and that they and Obief
this passage are taken from the Report itself. ARGUMENT  OF  GREAT  BRITAIN.
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
36 Regulations. The former 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.
THE LEGAL PRINCIPLES INVOLVED BEING COMMON TO
LAWS OF BOTH PARTIES TO DISPUTE, THEIR DECISION
MUST CONFORM TO  THEM.
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. ARGUMENT  OF  GREAT BRITAIN.
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.
RIGHT  OF A GOVERNMENT TO PROTECT.
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
37 inconsistent with the claim of any nation to 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.
RIGHT TO PROTECT APART FROM CLAIM OF PROPERTY.
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. ARGUMENT  OF  GREAT  BRITAIN.
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
ste   i,,ii,nntil this exclusive right has come into being is again too
Biackstune, 7th elementary a proposition to need demonstration.   For, as
Edit.,- vol. ii, p. j3iackstone says:
All mankind had, by the original grant of the Creator, a right to
'   pursue and take any fish or inhabitant of the waters.
That there is no right of protection at sea even when
such qualified property arises on land has already been
demonstrated.
NOR ON ACCOUNT OF INTEREST IN INDUSTRY.
caYelited299tates    Tne contention basing the right of protection on the
ase'p'    '      ground of an interest, an industry, and a commerce cannot
be maintained.   It must depend on the question whether
property has been established or not.
NOR EXCEPT AS AGAINST NATIONALS.
The only right of protection of fish and other free-
38 swimming animals in the high seas which can be
exercised by any State (apart from Convention) 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. A State has 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
subjeets." Such legislation rests, therefore, onan 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. ARGUMENT  OF  GREAT  BRITAIN.
.CONVENTIONS.
> 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 indicated 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.
39 The same argument affords a complete answer to the
suggestion, that the right of 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 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.
CLAIM TO PROTECTION WITHOUT PROPERTY FAILS.
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.
United'BStates 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.
OBJECTS OF UNITED  STATES ARGUMENT FROM LAWS OF
.    OTHER NATIONS.
Such laws are referred to, by the United States, for three
objects: ARGUMENT  OF  GREAT  BRITAIN.
i states    i. To endeavour to prove a uniform practice of nations
221' to protect seal life from destruction by means of extraterritorial legislation.
23i. 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.
237- 3. To show that other examples of extra-territorial jurisdiction are to be found in the laws of other nations.
DEDUCTIONS DRAWN FROM SUCH LAWS.
The deductions desired to be drawn by the United States
from the examples cited are:
From 1. That the United States law under which British vessels have been seized is justified by the laws of other
nations for the protection of seals.
40 From 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.
From 3. That the law, and more especially in its ajjpli-
cation to foreigners beyond the 3-mile 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 part of the law
of nations, it is essential that there should be an agreement between all—
1. As to the sufficiency of the causes caning 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.
i- This subject has already been dealt with, but it is necessary to examine categorically the 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: GREAT BRITAIN.
The Falkland Islands.
Cape of Good Hope.
Canada.
Newfoundland.
Foreign.      ^
lorwa11'   ]
Russia7'   lWi* reference to the Greenland ox
Germany. f              Jan Mayen fisheries.
Holland.' J
41          Russia.
Uruguay.
Chile.
Argentine Republic.
Japan.
The Falkland Islands.
The Act providing a close time for seals is No. 4 of 1881.   It recites   United
States
'".'.' '""'n 1'■"/ r'S !i'.'.'^' i!i'.''.''S'''.'! '.'V '""j"' """,!:in' and wasteful fish-vo   ,p*
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. '
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;
aud their limitation to th.e Colony and its territorial waters    .
is not only understood, but is enforced.
Yet the United States, instead of referring to long- c.^itea,
established principles, prefer to rest their contention that Appends
cfvoLiL
the Colony would interpret this Statute on different prin-P-593-
ciples, 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.
New Zealand.
The Statute No. 43 of 1878 for the protection of seals establishes a   ™*j .
Appen-
olose 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,
:SSBH'S"E5S€£^S 40 ARGUMENT  OF  GREAT  BRITAIN.
fresh, or brackish waters in the Colony, or on
thereof."   The Governor is enabled to make r
tection of fish, oysters, or seals. j       t
By "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 Zea-
The Act also allows vessels within the same jurisdiction to be
searched,
united states    With regard to this legislation of New Zealand, the
case, p. 223.       Tjnited States Case contains an extraordinary mis-statement:
The area designated as "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.
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 south-eastern corner is over 700 miles from the
coast of New Zealand, although a few smaller islands intervene.
ibid., Appen-    in the Map in the United States Case an area coloured
ix, vo .i,p. 437-pin^. is ghowt^ comprising the waters 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:
Ibid., p. 436. The Colony of New Zealand shall, for the purposes of the said Act
and for all other purposes whatever, be deemed to comprise all territories, islands, and countries lying between 162° east longitude and 173°
west longitude, and between the 33rd and 53rd parallels of south lat-
Only the territories, islands, and countries lying between
these limits of latitude and longitude are thus seen to be
included within the Colony.
43 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 of Good Hope.
The only Regulation affecting the question in this Colony is a | Cape Government Notice " of 1844, which is as
follows:
British ' Com-    His Excellency the Governor, having been pleased to decide that
SwtTiS the seal isl"a,nd in Mossel Bay shall not be granted on lease for the
p k p. a*. 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.
c™pd22ftat6s    The ITnited States evidence as to this Colony is that of
united states W 0. B. Stamp, who says that he | knows nothing about
vd!1i,t?OTGndlx'it»" an<i of ^ Coaier, who states that he would not dare
. ikd.,P. 596.    to take seals in the waters adjacent to the rookeries. ^l
AEOUMEKT  OP  GREAT  BEITA«.
41
f^^^SS2HS"S?SSo™
ed States
marine limit; and the inference drawn is that it applies^
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.
44                          Newfoundland.
Jb^d^.n,^^^
**rtm
an^fort^fThe^o^
Steamers are forbidden from going on a second trip in any one year,
^£f-s^ iwys? SJdiSd itoSsssssas
UNITED STATES CONCLUSIONS FROM FOREGOING BRITISH
STATUTES.
From these Statutes the following conclusions are drawn  m»
1. That Great Britain and its dependencies do not limit
to all varieties of seals wherever they resort to British territorial waters.
2. And they have thrown about them upon the high seas
It is admitted that the principle of providing a close
time for seals has been adopted by British legislation as
It is denied that any country has the power to enforce
such close-time regulations beyond the territorial waters
agaiust 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.
UNITED STATES INFERENCES UNWARRANTED.
It is denied that the inferences drawn by the United
lish 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. ARGUMENT  OF   GREAT  BRITAIN.
In the case of the Falkland Islands, the conditions
45 recited in the preamble of the Statute 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.
Greenland or Jan Maten Fisheries.
ed states The second group of enactments of other countries
■227- 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, Russia, 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.
LEGISLATION AS TO  GREENLAND FISHERY.
t., cap.is. The first section of "The Great Britain Greenland Seal
Fishery Act of 1875" is shortly as follows:
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 shall
apply to the said seal fishery.
The legislation of the other countries is conceived 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.
46 PRINCIPLES OF FISHERY CONVENTIONS.
>d237tates TIie Srea* difficulty of effectively maintaining a close
time in distant fisheries in the high seas, 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. ARGUMENT  OF  GREAT BRITAIN.
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.
ARGUMENT   TO   BE DEDUCED   FROM  EXISTENCE OF
CONVENTIONS.
The existence of the Conventions demonstrates their
necessity; 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 tha
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.
Russia.
examination of foreign seal legislation.
White Sea.
The Russian law dealing with theUstinsk sealing indus- Aunit«
try in the White Sea is set out in the United   States p.^.u
Case.
47 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 Britis
1869 limits the jurisdictional waters of Russia to 3 miles v^eh,
from the coast.
Behring Sea and Sea of Okhotsk.
This Article applies to the western shores -of Behring  Britis
Sea, and the regulations published at Yokohama in 1881, p- 116-
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 ^'eredi™^1
explained by M. de Giers in a letter to Mr. Hoffmann.       n,' s0.
it'SS
This measure refers only to proh
"The restrictions which il
torial waters of Russia only.
industries and to the trade
itablishes extend strictly to the terri- ARGUMENT  OF  GREAT  BRITAIN.
Caspian Sea.
states The fishing and sealing industries in the Caspian Sea
>i.'i, p! are also dealt with by law, which expressly declares that
the catching of fish and killing 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 Wea 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.
48 Uruguay.
states    The law of Uruguay establishes a close time for seals on
ii.'i, plthe Lobos and other islands on the coasts of Rio de la
Plata, and in that part of the ocean adjacent to the Departments of Maldonado and Bocha.
coun-    it is in n0 sense extra territorial.
The provision prohibiting vessels of any kind from
anchoring off the islands, and the construction of works
that might frighten away the seals, is territorial.
Chile.
9i. The Ordinance of 1892 allows only Chileans 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.
Foreign vessels are prohibited from engaging in this
industry.
states    This Law is obviously not extra-territorial, but it is
9-      appealed to in support of the United States contention of
a right of property and protection on the high sea, to which
it is diametrically opposed.
a-    The principles on which the British contention is based
are expressly laid down in the Chilean 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 extra-territorial, or that they apply to foreigners.
Japan.
;." sea-otter in the Hokkaido, i. <?., Yezo, and certain islands
to the north belonging to Japan.
» 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.
e, p. 91. ARGUMENT  OF  GREAT  BRITAIN.
45
CONCLUSION FROM FOREIGN LAWS.
*°™ 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
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.
Foreign.
France.
Algerian coral fisheries.
Italian coral fisheries.
Norwegian whale fisheries.
Colombian pearl fisheries.
"Mexican pearl fisheries.
From 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.
EXAMINATION OF BRITISH FISHERY LEGISLATION.
The contention that British fishery legislation is extraterritorial, or, if extra-territorial, that it extends to-foreigners, remain to be considered.
50 It is later pointed out that considerations apply
to the case of oyster, pearl, and coral fisheries, which
have no application to the case of free swimming fish or
animals.
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 cg
regulate, by bye-laws, oyster dredging on banks 20 miles to 46 ARGUMENT  OF  GREAT  BRITAIN.
seaward of a certainline 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
51      Act, the Queen would possess no power to make an
Order in Council bringing foreigners within the Act.
n™^!1**68    The statement made in the United States Case is therefore inaccurate.
Scotch Herring Fisheries.
By the Act of 1887, 52 & 53 Yict., cap. 23, a close time
is provided, and trawling is prohibited within the northeastern indentation of the coast of Scotland: the line of
limit is drawn from Duncansby Head, in Caithness, to Bat-
tray Point, in Aberdeenshire, a distance of 80 miles.
Penalties 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
Parliament. ARGUMENT  OF  GREAT  BRITAIN. 47
Ceylon Pearl Fisheries.
The pearl fisheries on the banks of Ceylon, which extend c™*6*.,8***68
from 6 to 21 miles from the coast, are subject to the Colonial Appendix, vol.
Act of 1811, which authorizes the seizure and condemnation -■ liJ^ c<ran
of any boat found within the limits of the pearl banks, or ter-case, PP. 93;
hovering near them. 94-
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   (postt p.59.)
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. BLeyn: D^bR''2nd Ex"
52 Where the sea, or the bed o
occupied permanently, it maj
the same manner as unoccupied territory.
The special application of this principle to the Ceylon "Droit de.
fisheries was thus treated by Yattel: Gens,"1,see.287
is of Bahrien and Ceylon may
Australian Pearl Fisheries.
In the United States Case reference is thus made to the
Australasian fishery laws:
These Statutes extended the local regulations of the two countries   United State
mentioned (Queensland and Western Australia) to denned areas of the Ca?e' P- 2p-
open sea, of which the most remote points are about 250 miles from^ ^467^69
the coast of Queensland, and about 600 miles from the coast of West- ' British  Coun
ern Australia. ter-Case, p. 94.
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.
France.
Bv the Decree of the 10th May, 1862, certain fisheries are allowed to   United State,
be temporarily suspended over an extent of sea beyond the 3-mile limit Case, p. 234.
if it is necessary for the preservation of the bed of the sea, or of a fish-   British  Conn
ery composed of migratory fishes.    The suspension will be ordered on ter-Case, p. 94-95
the request of the "prud'hommes des pfecheurs," 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, Fiance 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 48 ARGUMENT   OF   GREAT   BRITAIN.
53 Algerian Coral Fisheries.
The United States Case proceeds:
British Conn-    Numerous laws have also been enacted by France to protect and
ter-Case, p. 95.     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 This statement is not verified by particulars or evidence,
voi8ei',p.™9ndix' but a Map is given in the United States Case, in which
this 7-mile limit is indicated.
CPo<rt,p.59.) 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.
Italian Coral Fisheries.
caYe?ped35Stat6S    Tne United States Case states that—
Ibid.,   Appen-fhe coral beds surrounding the Island of Sardinia, and lying off the
dix,pp.4i0-481.   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.
Norwegian Whale Fisheries.
British conn-    The Norwegian law of 1880 for the protection of whales
teunUedPstates provided a close time " on that part of the sea on the coasts
Case, i>. 236.       0f Finmarken which the King will define."
di"voi.i^P48e2n'    The Proclamation 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 Finmarken, to be counted from the outermost islands or rocks
which are never covered by the sea.
5* The whole of Yaranger Fiord is included, the dis
tance between the headlands of the fiord being 32
miles.
The Norwegian law is, therefore, expressly limited to a
small area of territorial sea.
(Post, P. 59.)       The special protection in Yaranger Fiord falls within
the principle of waters of the territory to be hereafter
explained.
Colombian Pearl Fisheries.
c«Ye ped36States    The Law of Panam^< is thus stated in United  States
ibid.,' Appen- Case.   It prohibits—
484-485. ' ' ' the use of diving-machines for the collection of 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. ARGUMENT OF  GREAT BRITAIN. 49
Even if the bays shown on the United States Map are   (-Po^p.59.)
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.
Mexican Pearl Fisheries.
The United States Case states— oKaa**"*
that along the coast of Lower California the pearl-beds have been   ibid.   Appen
made the subject of special exclusive grants to private individuals, dix.,vol.i, p.491,
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 Mexican   B««™h coun-
fisheries if they comply with the laws and regulations.       ter-Cae°. p- 97-
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
Powers agree to 3 miles as the limit of their territorial
:  waters.
55
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.
Examination of Legal Principles.
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 now be 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.
(IY.) 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. ARGUMENT   OF   GREAT   BRITAIN.
(Y.) 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.
It is submitted that, as well by international and con"
stitutional 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;
56 and that if they are declared to have an extraterritorial 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 whieh
they are.
No 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.
II.
THE LAWS OF  GREAT BRITAIN  HAVE  NO EXTRA-TERRITORIAL APPLICATION TO FOREIGNERS.
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.
D-    In Beg. v. Keyn, Cockburn, C. J., said:
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 United States,
in based upon the words "any person" in British and Colonial
>r_ Statutes. ARGUMENT  OF  GREAT BRITAIN.
The intimate connection between the national law and
the international law is indicated in the Judgments now
quoted.
QUOTATIONS FROM ENGLISH JUDGMENTS.
In the case of "Le Louis," Lord Stowell said:
Neither this British Act of Parliament nor any Commission founded
appl;
57 So in Cope v. Doherty, Lord Justice Turner said:   2 *>e Gex. and
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.
So in Jeffreys v. Boosey, Baron Parke said: ± m y. cases,
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 prima 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.
A remarkable application of this principle occurred in 50^-E-12 Ch-D-
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 the 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; one more  I- B->2E:£-n
quotation from Chief Justice Cockburn's judgment in Beg.
v. Keyn will suffice:
The argument is that the language of the Statute (of Henry VIII
to have included foreigners as well as subjects. No doubt these words
are large enough to include foreigners as well as subjects, but so they
are to include the eutire ocean as well as the narrow seas; and it
cannot 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 all over the world.
It is submitted that the-Statute under which the British
vessels were seized and condemned was either wrongly
interpreted, or was ultra vires. ARGUMENT  OF   GREAT  BRITAIN.
58 III.
COLONIES  HAVE NO POWER OF EXTRA-TERRITORIAL
LEGISLATION FOR FOREIGNERS.
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 J ndicial Committee of the Privy Council have expressly declared the limits of the Colonial Legislative
Power.
'.!   In Macleod v. Attorney-General for New South Wales
the colonial law as to bigamy was considered.
The section enacted that—
Whosoever being married marries another person during the life of
the former husband or wife, wheresover 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:
The colony can have no such jurisdiction, and their Lordships do
not desire to attribute to the Colonial Legislature an effort to enlarge
their jurisdiction to such an extent as would be inconsistent with
the powers committed to a colony, and indeed inconsistent with the
most familar 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 in this colony the
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 prin-
59 ciples 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.
IV.
HOW FAR INTERNATIONAL LAW RECOGNIZES A RIGHT TO
POSSESSION OF PARTS OF THE BED OF THE SEA.
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 ARGUMENT  OF GREAT BRITAIN.
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 for-
But it affords no justification for, nor are they analogous
to, the Alaskan Seal Statute, as is contended by the United
but certain
ion.   For e
and, in cert
portions of
xample, the
ain excepth
thee
nalc
ea may 1
which 1
)eadd
-tsof 1
Theclain
claim may
applies str
ctly
to the soi
mde to c
lXe
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 by 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.
It is further submitted that there is no analogy between
a claim to property in and to protect swimmiug 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 inter
national 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. I
ARGUMENT   OF   GREAT  BRITAIN.
NO  CONSENT  OF  NATIONS TO   PRINCIPLE   OF  RIGHT
CLAIMED BY UNITED STATES.
Finally, 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.
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—
The "Sovering 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
61 beyond the ordinary 3-mile limit, such as is 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 Bussian cruizer, on the ground that she was seal-
fishing within Bussian 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 jurisdiction is exercised within reasonable limits), is wanting to the claim of ARGUMENT  OF   GREAT  BRITAIN.
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.
" The St. Helena Act, 1815."
At the peace of 1815 it was determined by Great Britain,
in conjunction with the allied Powers, 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;
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 was accordingly given by Amer
the British Charg6 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.
« The Quarantine Act, 1825."
This Act depends upon the principles already adverted
to with regard to the Hovering Acts.
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.
GENERAL CONCLUSION ON THIS BRANCH OF THE CASE.
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 foreign-
63 ers; for, without acquiescence of other nations, and
without example in the practice of other nations, it
infringes the rights of those nations upon the high seas. 56 ARGUMENT  OF   GREAT  BRITAIN.
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.
ANSWER TO  QUESTION 5.
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. PART III.
REGULATIONS.
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 Peculations. 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 Eegulations
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   united states
maintained that Eegulations must practically be such as Case> p- 30°-
to prevent pelagic sealing everywhere, it is also
64       stated that the United States are in the position
of trustees of the sealing 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 not in justice   ibid., p. 209.
to each other, in sound policy for the common interest of mankind,
lations or convention, in which the participation of other Governments
may be properly in ited," &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 they have,    United States
upon the facts established by the evidence, such a property and inter- Coii nter-Oase,
I est in the seal herd frequenting the Islands of the United States in'P-121-
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 Eegulations, the  united states
question as to the area of waters over which they should 0ase'pp-
extend requires notice.   It appears from certain passages
in the United States Case and Counter-Case, that it will 58 ARGUMENT  OF  GREAT BRITAIN.
be contended on behalf of the United States that the
Eegulations should amount to a practical prohibition of
pelagic sealing in all waters to which seals from the Pribyloff Islands resort, and should effectually prohibit and
pCi2l™ter"Case' prevent the capture, anywhere upon the high seas, of any
seals from the Pribyloff 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
65      the contrary, when the British Government desired
the assent of Bussia to the modus vivendi proposed
united statesm *ne month of June 1891, it was pointed out -by Mr.
case? Appendix, Wharton, in a despatch, to Sir Julian Pauncefote, dated the
vol. i, p. 306.     4^ Q£ ^at 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
President 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 Pacific
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,
ibid., p. 315. Further, on the 11th June, 1891, Mr. Wharton, in his
letter to Sir J. Pauncefote, 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
Pacific 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. Pauncefote:
Ibid., p. 356. 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-nule limit.   This serious and protracted controversy, it has now been ARGUMENT  OF  GREAT  BRITAIN.
happily agreed, shajl be submitted to the determination of a
66       tribunal of arbitration, and the treaty only awaits 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 f,
United States cannot be expected to suspend the defence, by such y,
means as are within its power, of the property and jurisdictional
rights claimed by it, pending the arbitration.
indc
l the 22nd March, 1892, he again writes:
For it must not be forgotten, that if Her Majesty's Government proceeds during this sealing seasou 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, sealing in the 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 Eegulations concerning them, would be impracticable, and it is submitted would be beyond the authority
given to this Tribunal.
Passing from the question of the area of waters over
which the proposed Eegulations should extend, and assuming the Eegulations 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 prohibiting pelagic sealing would be contrary to the terms of the
Treaty.
Article VII contemplated the establishment of Eegulations 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 Eegulations, to
defeat the manifest intention of the parties.
The following argument is, therefore, based upon the
view that the Eegulations should be such as should be fair,
both to the United States as owners of the Pribyloff
67 Islands, and to Great 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 Eegulations as are necessary for proper
protection and preservation of the fur-seal in, or habitually
resorting to, Behring Sea.
Furthermore, it is essential that the Eegulations should
be such as would be likely to secure the adhesion of other
Powers, 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. ARGUMENT  OF  GREAT  BRITAIN.
As appears from the British Counter-Case, and from the
Eeport of the British Commissioners, the mam provisions
which might be properly embraced by Eegulations are the
maintenance of a zone of protected waters round the breed-
tion 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 Eegulations
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 Pauncefote, under
date the 17th December, 1890:
>s 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
15th 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
68       question, in the following words, on which the Vllth
Article of the Treaty of Arbitration was founded:
»    Sixth. If the determination of the foregoing questions shall leave
x' the subject in such position that the concurrence of Great Britain is
any part of the waters of Behring Sea, then it shall be further determined : First, how far, if at all, outside the ordinary territorial limits
it is necessary that the United States should exercise an exclusive
jurisdiction in order to protect the seal for the time living upon the
islands of the United States, 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)
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 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 preser-
tain words appearing to attribute special and abnormal rights in the
matter to the United States.
Finally, in deference to the objection thus taken by Lord
Salisbury, Mr. Wharton, in a letter of the 25th June, 1892,
to Sir Julian Pauncefote, proposed what now forms Article
VII of the Treaty. ARGUMENT OP  GREAT  BRITAIN.
It is therefore to be'noted that the original proposition,
otiiaiiaiing from the President of the United States, viz.,
that the establishment of a protective sone, 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 civilised
world, and it is contended, on behalf of the British Government, that further investigation and examination of the
flute fully Justify the view that Regulations of this character, but establishing a cone of smaller area, would suffice
so far as pelagio sealing is concerned.
69 Even assuming a point wbieh is open to consider
able doubt, viz., that some of the seals still suckling
their young travel to parts of Behring Sea at considerable distances from the Pribyloff islands, by far the greater
majority, if not the whole, of snob female seals will be
found within a zone of more moderate area.
It is established that the seals, whatever may bo 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 information 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 during July
and August, within the protected sone, would insure that
the vast majority, if not all, of the female seals actually
suckling their young, would be free from capture by
* i sealing during such time as the pups are depend-
ntup<
i then
hioh
discuss in del
suggested as
the
and i
to the
The;
uthent
minor Regnhv
eans of pelagic
of all licensed
eh lengthened
argument would be out of place here.
It is, however, obvious that the adoption of snob Regulations, and the enforcement of legislation in order to render them effective, does involve the curtailment of rights
, which, upon the hypothesis whioh forms the basis of this
argument, now belong to other nationals, including British
subjects.
The object of any Regulations is the proper protection
and preservation of the fur-seal in, or habitually-resorting
to Behring Sea. It would be unjust that other nations
ahould be asked to enforce by legislation this curtailment
of the rights of their nationals, withoataome corresponding
concession on the part of the United Stales, 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 deuied.
That during other portions of the year they are
70      consuming fish that are swimming in the high seas,
in whioh all nations have an interest, is conceded. ARGUMENT  OF  GREAT  BRITAIN.
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 Eegulations 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 Eegulations, 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 Eegulations 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 Eegulations would be reasonable or necessary, and
it is further submitted that it is within the competence of
this Tribunal to make the latter Eegulations dependent or
conditional on the former.
To apply restrictions to pelagic sealing, without effective
and concurrent Eegulations 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 submitted that the excessive
killing of seals on the islands during a long series of years
has contributed largely to, and has been in al 1 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 Pribyloff 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.
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 Regulations unlimited in
duration until wider experience of their operation has been
acquired. PART IV.
DAMAGES AND COMPENSATION.
1. British Claim for Damages.
There remain for consideration the questions of fact
which are involved in the claims made by the owners ot'£
British vessels for injuries-sustained by the seizure of their
vessels, and by such vessels being prevented by the action
of the 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 the Counter-Case on behalf
of the United States that the seizures and acts of interfer- c
ence complained of took place outside the ordinary terri-l'
torial 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 unfounded, 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 "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 English
Courts. In Phillips v. the London and South-Western
Railway Company, where an eminent medical practitioner
who had been injured by the negligence of a Eailway Com- I
s certainly dams
ARGUMENT  OF  GREAT BRITAIN.
panywas awarded 16,000Z. damages, the Court of Appeal
held that the jury had been rightly directed to take into
account the loss of his professional income of 5,000Z. a-year.
8'And in the "Argentine," the House of Lords held that 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:
The loss of the use of a vessel and of the earrings which would
ordinarily be derived from its use during the
and therefore not available for trading purp<
■which directly and naturally flows from a col
He then proceeded to explain, what it is not necessary
here to consider, that the damages were not limited to the
time of actual non-repair, 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 i
The loss of catch is d
ie dir
2ctly to the action of
73       the United States Gove
•nmen
t, and the fact that
the earnings or profits w
ere pi
ospective in no way
affects the right of the claiman
The refusal of the Geneva Ar
>rs to award damages
to the United States for the loss
rospective earnings "
must be understood with refere
the actual conditions
of the case before them.   The s
lips in
respect of which the
claim was made had been destr
)yed.
Chief Justice Cock-
burn, who here was in agreer
aent a
vitk the rest of the
Tribunal, says in his reasons:
According to the decisions of the
Supre
ne Court of the United
States, the only allowance which oug
5 made in respect of pro-
spective catch is in the nature of inter
est fror
Q the time of the destruo-
f thev
jel.
Ught 1
The distinction is between prospective e
ship destroyed, and temporary interruption
ment of an existing ship.
With regard to the allegations which ai
ward at pp. 130 to 133 of the United States
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
ship or any share therein, nor shall the mortgagee be
gaged ship o    v
deemed t(
available
ofar s
o be own.
gage debt.
king such ship or share ARGUMENT   OF  GREAT  BRITAIN. 65
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 Russia, then compensation
74 shall be made by the United States to Great Britain
(for the use of her subjects) for abstaining from the
exercise of that right during the pendency of the arbitration, upon the basis of such 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 States Case.   United |tate»
"theclaimof the Government," as distinguished from "the  ase,p-
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 d£bVol $$§[.
Majesty's Government made it a condition of 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
75 Agreement 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." 66 argument of great Britain.
In fixing the "larger catch" mentioned in this Article,
the following facts require consideration:
British  Case,    The modus vivendi of 1891 was originally assented to by
ui^Sfo'f ml' Great Britain because it was asserted on the part of the
pp. 1,3. '      ' United States that the diminution of seals had become so
great as to require some such immediate and drastic provision to prevent extermination,
senate,   sist    During the sealing season of 1890, on the Pribyloff
Exn%'oc"iToe849' Islands, Mr. Goff, the Government Agent, stopped the
pp.'11,12.   '   ' killing of seals when only 21,857 had been killed, alleging
that this was absolutely necessary because of the paucity
ibid., p. 13.    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,
ibid.,pp. e and    in reporting on the sealing season of 1890, Mr. Goff, the
9- Government Agent on the islands, and Mr. Lavender,
Assistant Agent, both advised the cessation of all killing
British  case, for skins upon the islands for several years.   Mr. Elliott,
ji^pe"uiitedin his letter to Secretary Windom, summarizing and trans-
film8" to' 17 Daitting a detailed Report made in pursuance of a Special
2i,6o.'      '    'Act of Congress, makes a recommendation to the same
effect, placing the period of abstention from killing at seven
years at least.
fotetoMr^BMnT    Tne resillfc 0I'tne investigation of seal life made by the
i'ebruar.y'29,1892! British Commissioners in 1891 was, however, such as to
sJisbnry to sir convince Her Majesty's Government that the very stringent
m   batm?lf2te'measures 0I" the modus vivendi of 1891 need not, in the
arc is, 9. j^g^g^g 0f fljg gealing industries, be repeated in 1892.
ABrento:C vol' Consequently, when a new modus vivendi was pressed for
iii™611" united by the United States, it was proposed by Her Majesty's
fi892)S" pp!' 155 Government that a zone of protection, not exceeding 30
and 159. ' miles, should be extended about the Pribyloff Islands, while
fotetoMrPBia?ne'tbe killing upon these islands should be restricted to a
February 29,1892'. maxim urn number of 30,000.
British case.    The United States, however, promptly and decisively
^ppendix^v^ pronounce(j this proposal for a modus vivendi in 1892, to be,
a892>a"   wi   3 from their point of view, "so obviously inadequate,
' p'    '    76       and so impossible of execution, that this Government
cannot entertain it."
Acting score-    The British Government eventually consented to the
sir7 jrhpaunce° establishment of a new modus vivendi, generally similar to
foto, March 8, that of 1891, but with the condition as to compensation
1892. above mentioned.
It is submitted that, in fixing the dimensions of the catch
which might have been made upon the Pribyloff Islands,
for the purposes of compensation, the United States cannot
united states now rely, as they seek to do, on the data which they explic-
oase, p.29i.      itly contradicted in the spring of 1892. APPENDIX TO ARGUMENT.
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' Report 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 Reports of
the United States Government, denied any decrease in the
seals met with upon the Pribyloff 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
78 arbitration the United States Government have discarded their own previous official Reports, 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
Reports thus discarded. Though a special Act of Congress sj
was passed to authorize an investigation of the sealing
industry on the Pribyloff Islands in 1890, and such investigation was carried out, it is at least worthy of note that the
Report detailing the result of this investigation has not ARGUMENT  OF   GREAT  BRITAIN.
been employed in connection with the Case or Counter-
Case of the United States; that this Report has not been
published by that Government; and that the United States
have even refused to furnish this Report 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 Reports and
assertions of their own official Representatives 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 the United States to which it
relates, and follow the arrangement and order in which
these assertions are presented in it.
of the United Si
"First."
"Matters in relation to which the Report and
the Case of the United States materially conflict,   AND    CONCERNING   WHICH   PROPOSITIONS    OR
Facts ake alleged in the Report which have
not been considered in the case of the united
States."
"Habits of the Fur-seals."
"1. Distribution of Seals in Behring Sea and the suggested
Intermingling of the Pribyloff and Commander Seal
Herds."
This chapter commences by quoting and alluding to certain passages from the British Commissioners' Report,
which convey only one side of the discussion of facts of
which they form a part. The general conclusion reached!
by the British Commissioners as the result of the. whole
discussion are not quoted.
The Maps relating to the distribution of seals (particularly Nos. 3 and 4), presented by the British Commissioners*,
are then noticed by the United States, and it is contended ARGUMENT  OF  GREAT  BRITAIN. i
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 information 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. Pases 50,51
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 Pribyloff
Islands, depended chiefly upon the logs of the several
80 cruizers, but an inspection of the tracks, as printed
by the United States, will show that the cruizers in
most cases confined their operations to the regions surrounding the Pribyloff Islands.
For 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 Report. The procedure followed in this case seej>os*,p.i
resembled that adopted in most other cases by both the
British and United States Commissioners.
Information obtained in 1892, and set forth in detail in   British boi
the British Counter-Case, however, not only fully confirms i«- and Ipp,
the statements made by the British Commissioners as to ?\Ss £ ]
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.
"2. The alleged promiscuous nursing of Pups by Female
Seals."
On this subject, the United States deny that certain evi- Page 53.
deuce, 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 Report 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' Report, 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 ARGUMENT  OF  GREAT  BRITAIN.
subjects connected with seal life, and have been fully published in United States official Reports. Where actual
1] 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 :
81 observer may be perfectly 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 F. McCoy, is pointless. The British Commissioners
quote Elliott, because his observations agree with those
made by themselves on the Pribyloff Islands. They state
as much.
In the British Commissioners' Report, 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
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
It is then insisted that his evidence is unworthy of consideration. Mr. Jackson, however, actually says in his
Report:
i -    I have availed myself of information kindly furnished by the best
j?" 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 F. McCoy, which was
• - not made by him.   A reference to the Report will show that
'"the British Commissioners merely allude to the statement
and cite a work by Sir F. McCoy, in which it is contained.
It is not implied that the statement was made by Sir F.
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.
82 It is also asserted, in concluding this subject, 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.
f Mr. Grebnitsky is among the authorities thus quoted,
e. but the remark made by him is only incidental, and he
advances no proof. So also with the evidence in the
Appendix to the United States Case which is here referred ARGUMENT OF  GREAT BRITAIN.
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
I occasionally obtain milk from other mothers than their own. %
"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 Report 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 Report "practically adopts the
opinion of Snegiloff, the native foreman on the Russian
Islands," though this is likewise not apparent in the Report
itself. In the Report 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.
83 The evidence obtained from the natives of the
Pribyloff 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 m
from Her Majesty's Minister at Tokio is rejected, and stated p<
to be "based on no actual knowledge," though he specially p"
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 show
that discrepancies occur in his Report; 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 Professor 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 Professor Allen, in neither of which does
Captain Bryant say anything at variance with what is
Pages 58, 59. He does, indeed,
rily repair
ARGUMENT  OF   GREAT  BRITAIN.
quoted by the British Commissioners
state that—
h the females, after giving birth' to their young, tern
'); again to the water.
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 BulLMus. Comp. Zool.,vol. ii,'l870,pp. 89-108], I need not be so
diffuse in my descriptions as would be otherwise necessary, and you
will understand, &e.
And it is from the Report thus referred to that the Commissioners quote.
84 It will be remembered that certain recent affida-
£ vits made by Captain Bryant in 1892 are prominently
5 ■ advanced as evidence by the United States.
e^    Having, in the manner above outlined, treated the evi-
3- dence, observations, and general conclusions of the Briiish
Commissioners on this subject, the United States Counter-
Case concludes the discussion by the following unwarranted
statement:
s, therefore, the sole authority
British   C<
port.paras.i
308,309,313.
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' Report,
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. Townsend, which is elsewhere discussed, and to observations of Mr. Stanley-
Brown. It may 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
a-by the British Commissioners; but the assumption must
e," not be made that when the females begin to seek the
water this is equivalent to their going to sea in search of
food.
"4. Aquatic Coition."
Evidence quoted by the British Commissioners from
published Reports of the United States, on the authority ARGUMENT  OF  GREAT BRITAIN.
of Captain Bryant and Dr. W. H. Dall, on the subject of
aquatic coition, are next combated by drawing attention
to depositions made in 1892, in which these witnesses
85 deny or endeavour to minimize the force of their pre-
» vious statements.   Captain Bryant is as definite in
his former Reports respecting the occurrence of coition at
sea and its frequency as it is possible for language to be.
Ho repeats these statements in three separate Reports,,,
dating fiom 1869 to 1880, to which references are given ins!
detail in the Report of the British Commissioners.   He
says, for instance:
By taking a canoe and going a little off shore considerable numbers
Dr. Dall is almost equally precise, writing—
They [the females] sleep in the water, lying on their sides, with the Bull. Mm.
two flippers [of the upper side] out of'the water, and receive the Pon?P- z°ol'?nb
males in tbe same position. See also' ,PAlas-
If these gentlemen have been in the wrong in regard to farces,"p8^?'
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, vari-   rages 63,64.
ous arguments are advanced for the purpose of endeavouring to show that coitioii at sea cannot occur.   These can be  British coun-
shown in detail to be erroneous, and to be based on mis- dices?86'  ppe"
conceptions or on facts imperfectly stated; but as further   Page63.
and wholly conclusive evidence, obtained since the com pie-   British co.m-
tion of the Report of the British Commissioners, is availa- alx. v^ippS,
ble in the British Counter-Case to prove that coition at sea 14°-.
is often observed, it is not considered useful to follow fur-125^26.TOl',,pp'
ther the hypothetical statements and attempts at destruc-   ibid, vol ii,
tive criticism of that Report, which are resorted to on the**-33'34-
part of the United States.
"Management of the Pribyloff Islands as the
alleged cause of the decrease of the alasKAN Seal Herd."
It is here stated in the United States Conn ter-Case that—  B»ge 65-
the British Commissioners, at several places in their Report, admit
that the Regulations in force, and the methods employed in taking
seals on the Pribyloff Islands, are the best that could have been
adopted, &c.
86 It is then argued that, as the methods were good,  J'agees.
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
Russian 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  British com-
points in dispute to a single item does not, in fact, accord p0rt,IOpaSs. eeo-
with the statements made in the Report of the British 662,«.
Commissioners.   The Report does not, as here stated by ARGUMENT  OF  GREAT BRITAIN.
the United States, affirm the excellence of the principles
of management without qualification.
Without, however, in this place entering into a general
discussion of this matter j 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. •
es Moreover, the United States in their Case have held that
I 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 showing the decrease in the number of
males is 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.
87 They then admit that some time after pelagic seal
ing 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—
rithin the control of the Treas-
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 Report 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 life as a
whole. Their treatment of the whole subject of the management of the Pribyloff Islands is practically directed to
these points. ARGUMENT  OF  GREAT BRITAIN.
It is next stated by the United States that not till 1889
did the—
decrease in the birth-i&te 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 A gent,* 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.   The 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 in their Case adduced evidence, and asserted   T1)ia.
on the authority of that evidence, that the decrease of seals1C0-
became perceptible as early as 1884; while the British Com- mfr\tu
missioners have conclusively shown that the decrease was port, pa
almostcontinuous from the earlier years of the United
88       States control of the islands, and had become such   p
as to be seriously felt, at least as early as 1879.
It is here stated by the United States that in 1889— ?age
for the first time the weight of skins fell below the average for for-
If, by this statement, it 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 years, 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 Commission- ni?"^'
ers' Report shows conclusively that the decreasing weight port, p<
of skins was fully acknowledged on the islands at least as
early as 1883, and evidence since obtained, and given in  Britii
the British Counter-Case, shows that smaller and smaller ^^
skins were almost each year taken since 1873. . that pa
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 c^te
seen upon the Pribyloff Islands only, and do not take into APPe"!
account observations on abundance of seals made at sea. britii
But even limiting the view to the islands, the conclusions mfasira
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 1892.
The British Commissioners say: mSsior
All the evidence collected indicates, that they [the rookeries] were, BOrt' *>■
in 1891, in at least as good condition as they were in the preceding
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, ARGUMENT  OF  GREAT  BRITAIN.
a., p. 152. and adds that during the whole time he was on the
89 islands he never heard any one say that there were
;««■*. fewer seals in 1892 than in 1891.    Evidence as to
increase in the number of seals is given at length in his
t^-ca^e9 Report.   Mr. J. Stanley-Brown, on whose testimony alone
indix.p.sss'. the statement is made that "in 1892 a decrease appears
over 1891," simply states that there was a "perceptible
a, P. 393.   falling off" of the females, but offers no proof.   Mr. Town-
send, who visited the Pribyloff Islands in 1885 and 1891,
and made " frequent observations as to the condition of
the rookeries," again visited the Pribyloff Islands in 1892
for the purpose of studying seal life.   He makes no statement in his Report as to the comparative number of seals
on the rookeries in 1891 and 1892.
;e 68. Though, as above stated, maintaining that all reference
to the management of the Pribyloff Islands subsequent to
the introduction of pelagic sealing are irrelevant, the
United States Counter-Case here affirms that the Report
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," &c.
tish com - While the British Commissioners, in their Report, do not
0pnras.B507i treat the years here referred to as a separate period, they
sy, 684, 694] show that the methods employed on the islands, from the
first, and including these years, were injurious, and caused,
in the main, a general diminution in the number of 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' Report
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' Report the sentence from which they are taken
reads as follows:
a., 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.
Reverting to the reiterated   contention of the
90 United States, that all references to the condition of
>e w- the Pribyloff 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 Pribyloff 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 ARGUMENT  OF  GREAT BRITAIN.
brought about a decrease similar to that which is alleged
by the United States to have resulted from pelagic sealing.
The facts show that iu 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 injurious by leaving an insufficiency of males" to fertilize the females, is incorrect; neither
is the excessive killing alone referred to by the British g
Commissioners for proof of bad management on the islands.«*'
The attempt made to narrow down the issue to this one80
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 Report, 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.
In reply to the question—
Your opinion, then, is that the number of 100,000 on the two islands,
authorized by law, can be regularly taken without diminishing the Cc
crop or number of seals coming to the island?— Ri
i my detailed   Page 69.
Mr. Bryant replied:
91 I don't feel quite sure of that, as will be s.
Report to the Secretary of the Treasury, included i:
dence 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 e
considered by Captain. Bryant to have been of slight im- pi
portance, is very evident when his Report 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 Report 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 186*. 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 78 ARGUMENT OF  GREAT BRITAIN.
* part of the prospective deficiency is to he
These are Captain Bryanfs "reasons for his Report 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'
Report 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
92 this caused decrease. It is from this very aspect tl Lat
the matter is considered in the British Commissioners' Report.
Complaint is made of the alleged "unfairness" of the
comparison of the annual number of skins taken during
the Russian period with the 100,000 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
British Com-    The Commissioners were, however, in the paragraphs of
port paras'. 39^l their Report, here specially referred to, concerned in giving
~*  a historical r6sume of the circumstances connected with
killing, and the number killed.   Further information on
the same subject will be found in the British Commissioners' Report, 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
con trol scarcely fell short of the figure at which all continued increase
in number of seals would cease.
Erom 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 theIslands are not includedin making the above
comparison.
Allen, doubtless on Bryant's authority, states that in
1857 the—
learly as large as now [viz.,
trol of which he wrote], the
uS, however, that there has been since the last-men-
ery gradual, but steady, increase.
British com- There can, therefore, be no possible objection raised to
"ort.'pS'eef6" the comparison of the years 1857 to 1867 (under Russian
6jee also para, control) with those of the following years under United
ibid., p. 132, States control. The British Commissioners give the figures
and,paras. 776-for these years as accurately as possible, and the authorities for the figures given are quoted by them. There
ge 93      remain, unfortunately, among these years, 1863,1864,
I860, and 1866, for which the figures are somewhat
uncertain. On this page of
and disconnected
relating to the is]
purpose of indica
tained under the
examination of tl
are) shows, howei
instructions from
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:
Year.
^enr(Eausstn°Cor6
Repor
, p. 132).
1880
60,000 or
SO, 000
order to
21 590
29,699
For the remaining years to 1866, the numbers requested
or ordered to be killed was as follows:
1863  80,000
1866 \V.\V.Y.\'.Y.'.'.Y.'.'.'.'.Y.V.'.'.'.'.v.'.'.'.'".'.'".'.'.'. 50^
The approximate numbers actually killed, and showi
the second column, as ascertained from the best availa
data, are, however, in these years much lower.
It is not to be supposed that in thus failing to carry i
the instructions as to killing, the persons on
94      islands were unable to obtain enough seals.   1
dime
nsuii
ed an
olv
s com
large pr
ternary.
The special
number taken in 1867 (75,000)
of the British Commissioners.
The British Commissioners a
States Counter-Case charged
their instructions as to impai
quote the whole of a paragrar.
proportion of bulls to females,
quoted, however, gives Elliot
icted with the exces
explained in the Re
uldno
tion to quote th
He notes both
;cr and much sm 80 ARGUMENT  OF  GREAT  BRITAIN.
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:
Elliott, United I found it an exceedingly difficult matter to satisfy myself as to a fail
States Census general average number of cows to each bull on the rookery; but after pro-
Eoport, p. 36. traded 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 Report of the British Commissioners—
o show how many females constituted a
95 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
X- States.   Further evidence of the same kind, for 1892, is con-
3 tained in Mr. Macoun's Report.
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—
a the breeding-grounds unable to
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. Macouu, in fact, states that at North-east Point (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  Coan- showed the '' grey wig," which proved them to be not yet fully grown,
aw   ™i Vp™ while oth6TS were> without doubt, worn-out old bulls, no longer fit for
llo'uT service.    That the majority of them were in this condition is proved
by the fact that 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.
counted ca'fe38 Professor Evermann's count of part of one of the smallest
Appendix, apP'. rookeries is further referred to to show an abundance of
264,265. bulls, in proportion to the number of females. ARGUMENT OF  GBE
81
But the reference here made to Pr
Jfeasor Evermann's
>    evidence is misleading.   This gentlema
j counted the seals
SnaU arear(d°d LJ-ka"Sn [°<jj\ei7-    ]
(This is ai rived at by taking each pup
"a^representiug1^
96          A second con n t 'of a larger are
a of the same rook-  r
age 76,
id d  eY 8h°h8 T aXerage of *brty k
males to each bull
here did not belong to the bulls, but v
explained.   He further adds that many
not counted, because they "did not seei
particular family."
hy he should have
cess of pups is not
Thus, the statement made in the Uni1
*d States Counter-
Case, that Evermann's count showed ai
females to each bull, is incorrect, and
Evermann's state-
ments are themselves inaccurate byrea
son of his omission
to count the whole of the females and
pups actually seen
by him.
On a later page, Professor Evermann
jays that cows were  v
nited  States
more abundant in proportion to bulls o
n Ketavie rookery ^J
iter- C as e,
than on Lukannon.
en     ,p.268.
A count made by the same gentler
aan at Little East  n
id., p. 273.
rookery, St. George Island, again gi
about forty cows to each bull.
res an average of
The British Commissioners having qn
Dted in their Report
certain statements made by Mr. H. W. I
illiott, which throw
important light on the effect of the e
xcessive killing of
male seals upon the Pribyloff Islands, s
i reference to these
statements is made in the following ter
ms on this page of
the United States Counter-Case:
to^\°8n3i1aryof™^por^madebT5r!'^^
T^^Ukrttin^Oto
1     the Secretary of the Treasury, to establish cert
ain alleged facts.
Elliott's specially-
authorized investigations  on the  Pr
ibyloff Islands  in
1890, the fact that his Report of these
investigations has
not been made public by the United S
tates Government,
and the further fact that it has actually
been refused to fur-
nish it to the Agent for Great Britain,
have already been
alluded to. It would appear that when M
r. Elliott found that
the United States Government did no
; intend to publish
his Report, he communicated to the pr
jss, over his signa-
ture, a summary of his conclusions, bei
in his letter submitting the Repoi
tasawholetoSec-
97      rotary of the Treasury Windom.
The matter thus
made public, will be found in tl
e Appendix to the   b
ltiah   Caee.
British Case.   Its authenticity, so far a
heretofore been questioned either by
the United States sta
»»8 N53-  2
Government or by Mr. Elliott.   The U
nited States Gov-
erATobjection is next raised in the Ui
lited States Conn-   *«
ige78.
ter-Case, to the effect that certain figure
s, quoted from Mr.
Elliott, relating to the state of the rook
eries on the Priby-
B  S, FT  X 6 82 ARGUMENT  OF  GREAT BRITAIN.
loff 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 Report. If they are
not, the United States is in a position, by producing the
Report, 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 do 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 Report of the
British Commissioners is chosen for attack. This remark
is brought into special prominence for the purpose of
attempted rebuttal, in the following terms:
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.
mtesloners' °Ke-    ^ie statement made by the Commissioners as to reduced
port, para. 44.    number of skins taken in 1875 is denied by the United
States.   In thus denying, they cite the British Com-
Page76.        98      missioners' Report (p. 132), where a Table is given
• showing the total killing in each year on the Pribyloff 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 6,000
less than in the last-mentioned year).
Reference 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 part of the skins taken in the autumn
have almost invariably been held over till the next year in
the Pribyloff Islands themselves.
The third reference given in support of the denial of
this particular statement of the Commissioners, is to a
Table on p. 427 of the United States Counter-Case.   It
must be explained that the statistics of killings on the
Pribyloff Islands to which the Commissioners were able to
refer, were those which had been published by the United
States.   Therefore, when, as in this instance, the United
States now produce new and more detailed figures, alleged
senate, 5i8tto have been on file |g the Treasury Department, no proof
ExngDo^ mo°S49 of unfairness or inaccuracy can justly be urged as against
p. 29. '   ' the Commissioners.   Thus, in the Tables of killings here- ARGUMENT  OF  GREAT  BRITAIN. 83
tofore accessible, it was impossible to apportion the number of "pups" killed for food in each particular year, for
only the grand 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'Report Diagram 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 States   **Ȥ<> 77.
deny that any lowering of the standard weight of skins
taken on the islands occurred until 1886, contrary to statements made in the British Commissioners' Report (para.   British  com-
694, &c), but in so doing the United States ignore the abso- p^pS wi"'
5   lute evidence to this effect by one of their own prin-
99 cipal 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.
Reference is next made by the United States to a new bl^3j£ *™s T£
Table by Mr. Heilbronner, alleged to show the weights and A&u,6poatpen'
prices of skins from the Pribyloff Islands from 1874 to 1889
(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.
From 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 killed: No 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 Pribyloff
Islands. Messrs. Lampson state that the weights of salted ^riHsh conn.
skins are greater than those of skins in the raw state; sOdix,voi.ii,p.2ei.
that if the weights given in Mr. Heilbrouner's Table are
those of salted skins, they do not compare in any satisfactory way with the weights referred to by the British Commissioners. ARGUMENT  OF  GREAT BRITAIN.
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
100 sold,  contained in the Appendix -to the  British
Counter-Case.   Every skin there included has been
measured with accuracy, and the Table includes practically
every seal killed for market on the Pribyloff Islands from
1873 to 1892 (both inclusive). The subsidiary question of
weight, and the doubt as to place of weighing and charac-
j8enter of skin when Aveighed, may, therefore, be dismissed.
3e' The almost continuous decrease in sizes is the main point
in question.
ites    still further, in the statement made on the part of the
ie' United States, the average weight of skins is taken. This
is little clue to the nature of the killing generally, 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 Northeast Point. 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' Report 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. Fowler are quoted as authorities for the
figures given by the British Commissioners. Further, 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 Point. The Table shows in these two years
respectively 34,526 and 35,113 skins.   Fowler said
101 that 29,000 and 18,u00 skins were taken at Northeast Point in 1879 and several succeeding years.
The Table shows: 1879,29,174; 1880,25,862; 1881,17,952;
1882, 23,303 skins.
The Commissioners further give the skins taken in 1889
and 1890 as 15,076* and 5,007 respectively, classing these
* 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 by the British Commissioners is not explained. ARGUMENT  OF  GREAT  BRITAIN.
as official figures. A printer's error has placed two
asterisks (*) in the text of this page of the Commissioners'
Report, and has omitted the reference at the foot of the
page to which one of the^n should apply. A brief examination would have shewn that the figures referred to were
those in Mr. Goff's official Report on the Pribyloff Islands sistcong.,
for 1890. The figures given by the Commissioners are |»00s08'ifo1^6
indentical with those of the Report in question. On
examining the figures ft will, however, be found that an
error in addition has been made in the Congressional document referred to; the total number of skins derived from
Northeast Point in 1890 should read 6,592, instead of
5,007. This difference has, however, no bearing on the
subject under discussion.
In respect to the question of the driving of seals in 1879 Pages 78, ti
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 Reports of Mr. H. W. Elliott. In
his Report bearing date 1880, Mr. Elliott, speaking of
Zapadnie rookery and the hauling-gronnds in its vicinity,
ade plal
and.   Op.Cit.,
which are all very close to the villag
102        Respecting Polavina 1
with them.
Mr. Elliott investigated the
and revisited the islands in 187'
the islands in 1890, he states
had been extended to Zapadui
1879, as quoted by the British
During all his stays upon i
Islands, Mr. Elliott was speci
e Unite<
capa*
for tl
official Reports wei
But the United
Case, published, fo
Max'Heilbronner,
Company, relating
various rookeries,
ing the statements
be that the Se<
says in the same Report:
nple at Zapadnie, no "hollus-   Op. Cit., p. 56.
t since 1872, though it is one of
sian times a pet sealing-ground
ircumstances in 1872-74, ABriti5^. Cas?-
When he again revisited iii?prart rrr.   '
lat he found that driving ^Sw^m-
and Polavina rookeries in 57-59.
I visits to the Pribyloff
y engaged in an official
nditions of seal life there
missioners were thus fully
ttements made by him in
in the Appendix to their Appendix, vol.
le, certain Tables by Mr.^P^117-127'
the Alaska Commercial
These
quoted
uiation in this case than the Go
lent officials, but ARGUMENT  OP  GREAT  BRITAIN.
it is significant that the official annual Reports of the Government are not here referred to.   In these Tables Polavin a
is designated " Half-way Point," 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
i statesseals teken in each in every year, but the number of
>P™iix, recorded "drives" may be taken as an index of the increas-
.117-127. -ng extenfc 0f driviUg from these places in later years.   The
number of drives as now stated by the United States is as
follows:
103                                 Tear.
Sotith-west
Bay (including
Zapadnie).
Half-way Point
(Polavina).
1871
1
5
10
12
8
8
t
0
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,
*. e., to explain away the alleged deficiency in number of
killable seals which occurred in 1879.   -Mr. Mclntyre says:
>a    In order that the selection should be made from as large a number
;i 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 187$ or 18S0 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.
if    Professor 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.
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, uifany occurred," it was directly due to pelagic
104     sealing.   This admission confirms the statement of
the British Commissioners, to the effect that the
"quota" to be taken on the Pribyloff Islands had become ARGUMENT  OP  GREAT  BRITAIN.
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 overdriving 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 way been
settled.
"Pelagic Sealing."
It appears to be assumed by the United States, in deal-
ing 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 Russian regime, appears to have still a very c
firm hold; while 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 Report 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. Further, 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 w
quoted by the British Commissioners as "interested." It63
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 present the facts, they have
not assumed as indubitably correct all the statements made
to them.
105 It is next stated in the United States Counter-
Case that the "three propositions," forming the
"apology" 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' Report, 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' Report under the chapter on pelagic
sealing is as follows:
(a.) Origin and Development. 88 ARGUMENT  OF  GREAT BRITAIN.
(b.) Methods.
(c.) Proportion of Seals lost.
(d.) Composition of Catch.
(e.) Future 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 1 here is,
in fact, no justification. Part of the evidence printed by
the British Commissioners is characterized as—
so-called "evidence," alleged to have been obtained from Indian
hunters, .... and in which there is a careful avoidance of
names of informants.
Page 8i. But oh the next page, the statement by the same Com
missioners respecting the possible existence of self-interest
in some of the witnesses examined by them, is en-
106     deavoured to be employed as a means of minimizing
the importance of that 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
British Com-referring to the first part of their Report, it will be found
'"»- that they fully recognized this fact.   They write:
t, para. 23.
It may be observed further, that in obtaining evidence from persons
of experience or knowledge of the subject, we adopted, in general,
the informal plan of free interviews a.nd 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:
>s    Although the testimony gathered by us on this and other points
5- was not given under oath, its value, iu our judgment, is not iu  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 ARGUMENT  OF  GREAT  BRITAIN.
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
107 to the manner in which a few words, 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
be evident that these men know more on the subject than any others. p'
This statement is employed in the following manner in
the Counter-Case of the United States:
The second class of testimony presented to sustain the position of the
Reporfis obtained from sworn statements of Canadian sealers, which c
the Commissioners admit are not " entirely untinctured by motives of p
On the next page we find the evidence cited by the
British Commissioners further characterized as admittedly
imtrustworihy.
Referring 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
ed, and the kind
statements, though 1
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 Pribyloff
Islands have resulted in the existence of a large sur-
108     plus of females, is based on various assumptions,
and is difficult to follow, 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 pro
portion 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' Report (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. 90 ARGUMENT  OF  GREAT BRITAIN.
Pages*. The further statement made by the British Commission
ers, 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 Report, 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
British Coon- ia the British Counter-Case.   This possible proportion is
andposi, p*iu?.0' much lower than that given in the statements of sealers
quoted by the British Commissioners, which statements
refer to the past few years only.
ibid., P. 251 et    in addition, in the Counter-Case presented by the British
,eq' 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.
Pages82,83.       As to the nature of the "proof" offered in the Case of
the United States respecting the number of female skins
contained in the pelagic catch, remarks have already been
te?caish C°i98maae *n *neBritish Counter-Case such as to show that this
etseq.  '   '      is entirely inconclusive and untrustworthy.
To corroborate the assertions made in the Case of the
United States, Captain Hooper, Mi Malonavonski, Mr.
Grebnitsky, and Messrs. 0. W. Martin and Sons are now
further adiluced.
109 The United States revenue cutter " Corwin," 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.
co^n'ttr-c**'*8 ■"■* wil1 further be observed, on turning to the Table pre-
Appendi",pa2i7'. pared by Captain Hooper, that nearly half (nineteen) oi the
seals taken were obtained within 20 miles of the Pribyloff
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.
Page 83. 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.
ibid., P. 374. 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 ARGUMENT  OF  GREAT  BRITAIN. 91
received 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 referred to re- Respiting
specting the sex of a lot of 1,028 skins supposed by them tionSVithnnth°e
to have been taken at sea, and received from Petropaulov- let&ftuhc^ul'
ski. It is stated that these were part of the 2,700 skins tor-case,.App'S'.
seized by Russian cruizers on the Asiatic side of the Pacific, t nd^ui? t8d
and upon which Messrs. Malonavonski and Grebnitsky |**tes case, p.
. based their statements. Messrs. Martin and Sons, how- British conn-
ever, give the percentage of females at 83.76; of males,terCase'P-308-
1.66; and doubtful, 14.58, though M. Malonavonski   „ „. „
110 had affirmed that an expert found no difficulty in sep-    age   '
aratiug the 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 Francisco in 1892.
It will subsequently be shown that the statements and rjSet,<App6ndir
depositions of this witness are wholly untrustworthy. 'P°
Reviewing the evidence brought forward on the part of Page si.
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 mayreasonably be supposed,likewiseinterested
in decrying all sealing at sea.
lt 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 ^at^riti^com.
one of the most important objects of any regulations which port, para. so.
may be proposed is that of eliminating the last-mentioned
► element from the pelagic catch.
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
111 if the sexes included in them had been correctly determined, and the subject may rightly be dismissed here.
* 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 percentaga
occurring uniformly throughout the whole bulk. As a matter of fact,
there are'20 per cent, of the catch which are too large to 1)6 the skins
of females. The figure above given is based on a recalculation admitting this correction. 92 ARGUMENT  OF  GREAT  BRITAIN.
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 com-    The statement here attributed by the United States to
p^rt^pSs \zz fcne British Commissioners was not, however, made by them.
648.' ' They have stated that the spring catch was more destruc
tive 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.
British Com-    The circumstance that practically no gravid females are
porSt,10paras. 645- taken by pelagic sealers in Behring Sea is characterized as
64BritishCoun-an "assumption" of the British Commissioners, though it
ter-case,Ap-rests on ample evidence.
ppmi4^2o7o1' I rPlie 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 Counter-Case, will be dis- :
cussed in connection with the more detailed treatment of,
this subject found in following pages of the Counter-Case
of the United States.
Page 85. 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
British Conn, gestation of the fur-seal as nearly twelve months,  full
25il257S,ei45?'198' twelve months is meant; that, for instance, eleven.
112 months would 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" 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. 649 of their Report. But in the
immediately preceding paragraphs of the Report, proof has
British co«n- been adduced to this effect, and further proof is brought
219! ase'pp'    ' forward and discussed in the Counter Case of Great Brit-
ibid., Appen-ain and its Appendices to the same effect, and to the
22,X23To1' "' pp' 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, ARGUMENT  OF   GREAT  BRITAIN. 9i
if not in all cases.   The evidence of Captain Hooper,
referred to in this connection by the United States (on the  united state
strength of the forty-one seals killed by him), in showing 90nnt0i:Ca»e
that a considerable proportion of seals in milk killed were   ppentta,p-21
200 miles from the Pribyloff 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,   British c om
and tends to substantiate the remarks made by the British "„'« p^jif
Commisssioners, and those in the Counter-Case of Great   Britlsh coii
Britain, on this subject. Im0*86'pp'21
On this and following pages of the United States Counter- Page se.
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 primd facie evidence of the fact they endeavour to
disprove.
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 Commission-
113     ers is intended.   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."
The explauation given, in para. 346 of the British Commissioners' Report 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 United State
pup's were in sufficient abundance to attract their attention, and they G^% Ai'Peudij
are, I believe, under the impression that they first discovered them. 'p'
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. Paul Island, is (except in regard to
date) even more definite on this point.   In a deposition   it>id.,p.ioi.
furnished by him, and included in the Appendix to the
United States Case, he says:
One day
during the
atter part of
Augus
tor
fore pa
rt of Se
pte
uber
last (exact
date forgot
;en), Colonel
Josep
lM
, and mysel
", in company
with
the
Sir George
Baden-Pov,
ell and Dr. D
seal rooke
ries of that
island, know
lasT
arriving t
iiere our att
ention was a
number of
dead seal pi
ips, whose car
lay
scattere
ely ARGUMENT OF  GrtEAT BRITAIN.
the breeding-ground or saud beach bordering the rookery proper, and
extending into the border of the rookery itself. The strange sight
dmuch surmise at the time as to the probable cause of it.
Mr. Barnes then states that some days afterwards
page 86.        114     he went with Mr. Fowler to Polavina rookery, where
he found similar conditions with respect to mortality
of young to prevail.   He adds:
United States This condition of the rookeries in this regard was for some time a
Case, Appendix, common topic of conversation in the village by all parties, including
vol. ii, p. 102.       the more intelligent ones among the natives, &e.
Page 87.' The evidence-referred to on this page of  Aie 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.
Pages ss, 89. Much stress is here laid on the discovery of two passages
in previous Reports, in which H. H. Mclntyre and J. H.
Moulton have made general statements to the effect that
killingfemalesatsearesultedin 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:
a-    As a matter of fact, the explanation referred to is dis-
s" cussed in some detail, and is found to be untenable by
reason of the date of the mortality, and on other rational
and fully explained grounds.
Respecting the causes of death of young suggested as
probable by the British Commissioners:
115 (a.) This is described in the United States Counter-
Case as "driving and killing 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 ARGUMENT  OF  GREAT  BRITAIN. 95
one of the rookeries (Tolstoi) on and about which dead
pups were specially observed by the British Commissioners
(iu 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 united states
the United States Case. It is, however, in the placeCase,p-216-
cited, merely stated that no sickness had' been previously
observed among the seals on the Pribyloff 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  pageoo.
by the United States that no evidence is given by the Brit-   British'com -
ish Commissioners under this head is incorrect.   The Com- port,1 paras. 331-
missioners quote statements from Bryant (Allen's Mono-333-
graph) and  Baron Nordeuskjold 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.   British coon-
(d.) Raids.—The possibility of the occurrence of raids^^Pj1**-
is not directly denied by the United States, though     ag68   '
116     statements are made for the purpose of minimizing
their probability.   It is 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 of dead   British Com.
pups were discovered upon two rookeries only, both on St.^t'pISi mb"
Paul Islaud, as explained by the British Commissioners.    347.'
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 crew British conn-
describe at length a raid on St. George Island, of which.^c*80^ App™;
nothing was known at the time it was made. i82,'i8*.'
One of the crew of the "Borealis" gives an account of ihid.,P.i83.
the raid of that vessel on Zapadnie Rookery, St. Paul
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. 96 ARGUMENT  OF  GREAT  BRITAIN.
united states    Colonel Murray, in an affidavit, refers to the two first-
Ippnendix,Cpa379; mentioned raids as if the people on the islands had been
+   n"lhi™«n'coguizailt of tnem at the time' aud as if one vessel nad
"""I'been at once seized, and the other but a short time after-
182-184.
See also
rnited wards, but a reference to the passages cited will show that
 j, Ap- the raids mentioned only became known to the authorities,
pWis, vol. i, p. judirectiy, months after their occurrence,
page 9i. The bodies of pups examined by Dr. Ackerly were, as he
British com-admitted, too much decomposed for a correct autopsy,
missioners' Be-They were, further, those of pups which had died in Sep-
port, paras. 352, telIll)er 1891 when n0 sealing-vessels remained in Behring
Sea.
ibid., paras. The body of a pup found dead by the British Commis-
353,354. sioners was examined by Dr. Giinther.   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.
united states    Though it was at the request of Mr. Stanley-Brown that
ToUi,p.pi»endlx' Dr. Ackerly's examination of the dead pups was made in
1891—and he was the Treasury Agent in charge of the
Pribyloff Islands in 1892, and admits that in that
117     year the number of dead 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
Co^terdca\tet'p unusual mortality in 1892 by an entirely novel  expla-
388™ r      '    nation, 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.      the lot
i- but as dead pups were reported to have been found in large
l\ numbers on another rookery on St. Paul in 1891, and Mr.
Macoun reports as many on Polavina 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- ARGUMENT   OF   GREAT  BRITAIN. 97
ground, which must be passed over by all seals going to amy
other part of it— *     h        *
lie 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.
118 The statements as to a great decrease in the num-   P    91
ber of dead pups in 1892, as compared with 1891,   British' coun-
made by United States, are in direct conflict with the 'Twd86' ippe'n
observations of Mr. Macoun, and are contradicted also by^. ™i.i,P.i46.
the photographs taken in 1892 when compared with those
of 1891.
Mr. Stanley-Brown is quoted on this page of the United  united states
States Counter-Case as saying: counter-case,
Dead pups were as conspicuous by their infrequency in 1892 as by
This gentleman, however, left the Pribyloff Islands on
the 14th August, 1892.
Dead pups were first observed to be numerous and pho-   British conn-
tographed on Tolstoi by Mr. Macoun 19th August; though aS,0™! ifpue'
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 number of united states
dead pups on this rookery was "beyond the normal."   HeC™nter-Ca8e- p-
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, says:
I went over the rookeries carefully looking for dead pups.   The   rbid., p. 378.
largest number on any rookerv 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
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 practical page92.
absence of dead pups on St. George in 1892 coincides with British Conn
Mr. Macoun's observations. The same circumstance was ter-case,.ApPen-
particularly observed in the case of the similar mortality dlx-voLl' v-m-
in 1891. And such mortality is referred to in none of the ter'case p 2i3.n'
affidavits in Appendix to United States Case which refer Brltlsh Com.
to St. George Island in that year. This circumstance, in missioners' b,o-
fact, strongly supports the belief that the mortality in ££* *«»■m et
neither year could have been due to the killing of mothers
at sea.
B s, pt x 7 ARGUMENT  OF   GREAT  BRITAIN.
119 Professor Evermann's statement, next quoted in
the United States Counter-Case, as to the number
i- of dead pups on Polavina rookery, refers to a visit made by
J" him to that rookery early in the season (22nd July), in com-
pany with Mr. Macoun.   His statement of number seen at
that time practically agrees with that given by Mr. Macoun,
who says—
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.
Mr. Macoun, however, further says that later in the season there were nearly or quite as many dead pups on Polavina 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 Polavina than were on Tolstoi in 1891.
ss Professor Evermann made but this one visit to Polavina
»• (22nd July). He visited Tolstoi rookery the following day
(23rd July), and finally left St. Paul 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,
[J though pelagic sealing had then for the first time been prac-
8. tised to a considerable extent in the vicinity of these
islands.
120 It is next stated in the United States Counter-
Case that—
the destructives
in the North Pai
catches.
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'
Report. 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 ARGUMENT  OF  GREAT  BRITAIN.
annual averages given by the Commissioners, none of these
figures are correct.   The following corrected Tables arec
therefore presented to take the place of those given in the-4
United States Counter-Case:
Tables of Catches.
SPRING AND COAST CATCHES.
Vessels.
of Skins.
Ve
ssel.
493
X
1889	
              22
12,371
3
vera^orthreeye
-rs..|
Totals and a
586
4.3
BEHRING SEA
Tear.
Number   Nnmbpr
Vessels.   of Skins
Vnsd. \vSvv-
1889
16       15,497
23       18,165
908            16.1
-    Totals and averages for three years.
83       62,550
753 |           12.5
121        But when it is attempted to deduce an average   Pase
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 Fuca
in the winter and early spring would not in themselves be Unit.
remunerative. They are made because no other occupation A°pe?„
offers for the sealing-vessels, while a certain advantage is 246,247
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' Report illustrates this very
clearly. The circumstances are further explained in para.
583, and in para. 132 of the same Report, 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 "destruetiveness" 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   ^a«e
for rebuttal is: 100 ARGUMENT  OF  GREAT  BRITAIN.
"3. That the waste of seal life resulting from pelagic
is insignificant."
Pages 94,95.       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.
British com- The British Commissioners explain that they have been at
port,ppe82,6i4*' pains to collect and examine all the statements upon which
a theory of great losses at sea have been based up to the
date at which their Report was written.   They have summarized these in para. 614 of their Report, 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.
Page 95.        122        In proceeding to set out the testimony of persons
who have actually engaged in pelagic sealing, the
British com- Commissioners point out that the interest of such persons
port^p'Sas. eiilis a factor to be allowed for; but they also point out that
626- the statements are given over the signatures of those mak
ing them, in a formal way, and are to be 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—
A reference to the paragraphs of the Commissioners'
Report thus alluded to by the United States will show how
entirely incorrect the assertion as to "inexperience" is.
Page 98, 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—
an endeavour was then made to " elucidate the question," &e.
The statement made is as follows:
British Com-    It has been endeavoured, however, still further to elucidate the qnes-
missioners' He tion here considered by tabulating all the well-authenticated state-
port, para. 627.    ment8 referring to the actual number of fur-seals shot, and the
proportion lost.
Again, the white hunters do not—
affirm that they lose but 4 per cent, of the seals they kill.
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 tabu-
123     lated represent nearly 10,000 seals, and no criterion ARGUMENT  OF  GREAT  BRITAIN. 101
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 te^cas^A00"11'
Counter-Case. dix, vol', a, pp!
It is here further stated in the United States Counter-*'6'6-
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 whites, which is
. in direct contradiction of the statements quoted in the Report, &c.
The suggestion as to the reason why the Table entitled
p Indian Hunters " is not averaged is wholly 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,
Petit, and others, who say that Indians lose less than 1 per
cent, while white hunters los.e about 5 per cent., are quoted;
but on referring to the affidavits made by these gentlemen,   British  case,
it will be seen that the loss by Indians mentioned by them, 4ppe° united
refers to seals killed with the spear, and such losses are not states No. 2
properly comparable with those resulting from the use of ffi' JonS
the gun.   The Table of losses by Indians presented by the sJoners-Keport,
British Commissioners shows their loss when using shot-  ppen. 'p-   '
guns.
Attention is then called by the United States, on the  ^»ge»7.
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
124     by sinking before recovery, when killed, or whether
such as 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   VniU)i stateg
United States, to the effect that 66 per cent, of all seals case, p. we.
killed are lost by sinking before recovery, the element of
uncertainty thus introduced it 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 ^ritish^conn.
taken to separate the two sources of loss above alluded to, aix, vold, p. e.
and in eliminating the loss due to the escape of wounded 102 ARGUMENT  OF  GREAT BRITAIN.
seals, that resulting from sinking alone becomes reduced
(on a much larger number of seals) to about 3.1 per cent.
see remarks in    A further reference is then made by the United States
caseSp la]™161" to the omission by the British Commissioners of any sta-
'       '      tistics respecting the loss of 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 Pribyloff Islands is next
criticized.   It is said:
Page 98. The notion that the carcass of every seal killed on the islands is
searched for encysted bullets is sufficiently absurd, but it seems to be'
assumed in the reasoning of the Commissioners.
British Com-    It will, however, be found, on referring to this allusion
portTpara.8^6' by the Commissioners, that allowance was made for the
causes referred to by the United States.
British Conn-    In later statements published in connection with the
ter-case, pp. 192, •gj.^jgjj Counter-Case, care has been taken to obtain all
information possible on the subject of seals shot and
wounded, and which escape; and though, as above noted,
dix'voi aPPpp"^ *s a SUDJefe* n°t susceptible of accurate numerical treat-
ii-i.3.   '   '    ' ment, the number so lost is found to be exceedingly small.
British conn-    still further, as stated in the British Counter-Case, it is
ase,p.    .  n^ ]inowTl ^.Qa^ 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.
united states 125        Mr. Townsend, who was attached to the steamer
Appendix?"pp! " Corwin" during the summer of 1892, volunteered
394,210. ' ' 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.
ibid.,p.395. ^ 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.
se™d" p'208 et    An analysis of Captain Hooper's Report, and the Table
accompanying it, shows that between the 27th July and
the 10th August, when one of the seal-hunters carried by
Ccfun to^'caV^tue " Corwin " was in Unalaska, and the other was unwell,
Appendix, vol. i', 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
re?rcase, Appen1-0De day's experience as a seal-hunter.   Between the 10th
dix, voi.i'i, P. 134. 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."   Five other seals were
taken during this time, but by whom is not stated, presumably by Mr. Townsend or the " quartermaster," and one ARGUMENT  OF  GREAT  BRITAIN.
was lost by sinking.   Captain Hooper then says: "C
total loss by sinking and wounding was 36 per cent."   I
"Our
._ _3 per cent." But
m 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' Conn- United, st
ter-Case to the sealing operations carried on by the United ippendi^p.
States ship "Rush" 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   Pas6"-
United States here sum up by denying—(1) that the percentage of female seals in the pelagic catch is not large;
(2) that pelagic sealing in Behring Sea is not as
126     destructive to seal life as in the North Pacific; and
(3) that the waste of life resulting from pelagic sealing is insignificant.
"Second."
"Matters upon which the Report belies to establish Conclusions advanced therein, and to formulate the Regulations recommended, which
matters have not been dealt with in the Case
of thk United States."
"Habits of the Fur-seals."
"1. That the Alaskan Seal-herd has a definite winter habitat.n
The title above quoted, given to this section of the
United States Counter-Case, which is stated to be in discussion of a proposition conveyed in the Report 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*6
admitted as an appropriate name for the fur-seals of the
eastern part of the North Pacific.
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 substituted 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 light of evidence obtained by these Commissioners and that afforded by additional facts set forth iu 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 "compilations 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. Men- 104 ARGUMENT OF  GREAT BRITAIN.
denhall, Superintendent of the United States' Coast and.
Geodetic Survey, this is purely formal and is attached
Pa eioo        127     as  a matter 0I" routine to maps issued from the
ag     ' 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 Commissoners differs widely. It is explained and
adopted by them in their Report 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.
r-age 101. 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 "position," and is discussed befolte
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—
general.
British Conn- As to this proposition, it is only necessary to refer to the
er- ase, p. 152. interesting statement on this subject made by Dr. Merriam,
one of the United States Commissioners, writing as a naturalist; and it is confidently affirmed that no unprejudiced
naturalist w411 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 Professor
vemb6r"S'89.N° -A-ngell. 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 technically employed by naturalists,
it will be found that the most trustworthy and eminent
authorities are united in defining the habitat of a
128     migratory animal as including the whole of the area
over 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 spe-
British com-cifically detailed.   A reference to the British Commis-
port'^as. 175^ sioners' Report will show that they have given, in what is
i87. 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 ARGUMENT OF  GREAT  BRITAIN. 105
informants are named, and the detailed statements of some
of them are included in the Appendix to the Report. 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 Report, and characterized there as a
" noteworthy and interesting fact."
The further statement that the Commissioners do not
anywhere state—
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,
is broadly incorrect, as a reference to the Report will show.   British com-
As the line drawn on the new migration-chart now offered p^r\f ^aras, m-
by the United States to represent the southern limit of the iso.'
range of full-grown males is not supported by any evidence,     age 102"
it appears unnecessary to follow the argument based on
this, and on the erroneous statement just referred
129     to; but it may be pointed out, that even on the incor-   page 102.
rect assumption made, i. e., that full-grown bulls are
seldom seen south of Baranoff Island, and that the "winter home," referred to .by the 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
Pribyloff 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  Pages 102,103.
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'
Report.   An examination of this map and of the Report   British com-
will, however, show that it has been fully recognized, and ™\si™«8^*£-
was considered and particularly mentioned by the Commis- aud' paras. '582;
sioners.   It was very clearly not the purpose of the Com-596-
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 106 ARGUMENT  OF  GREAT  BRITAIN.
obtained by them enabled them to do, the principal resorts
of the fur-seal at various seasons, and the main routes cov-
British conn- ei ed during its migration.   Further evidence since obtained
ter-Case, Appen- tends fully to confirm these main facts as represented in
43-i39°' i pp' the migration-map of the British Commissioners.
united states    it will further be remembered, that in the Case of the
case, P. 129.      Tjnited 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 Pro-
dixb'v^iipPPo6n'fessor Allen was about to arrive on this subject, have
British com-themselves independently recorded their belief that the fur- _
mortionaras wo"seals llotea as breeding on the Californian coast could not
por, par       , ^^j have taken part in the main migration.
Page 104. 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 Petit have followed
the seals "along" the British Columbian coast, has
Pageio4.       130     nothing to do with the subject under discussion, for it
is fully understood and explained in the British Commissioners' Report 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 Report, and the range
of position of the herd is much further south and west than appears
on the Commissioners' chart of migration,
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 afoot-note to this
page of the United States Counter-Case, and it will be
found on consulting Captain Hooper's Report, in the Appendix, that wherever he speaks of actual observations,
his statements are in accord with those of the British Commissioners.   He thus writes:
United States But a small part of the entire herd goes to the coasts of California
Annendix on and.0r6gon- Many seals reach the coast further north, some of them
232, 370.   ' coming out through the 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 "Rush," irom 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. " ARGUMENT  OF  GJBEAT  BRITAIN. 107
Captain Hooper does not state whether the voyage
referred to was made outside or inside Vancouver
131 and the Queen Charlotte Islands, but in either case   Pas° ">*■
his observations accord perfectly with those depended
on by the British Commissioners.
He further states, in two places, that the arrival (or c^%* cTf6*
appearance) of seals upon the coast is directly related to App^ndL, aPSp
that of the coming of the smelts, herring, and ulachan. 23lritis'h com
This statement may be compared with those made in themi8Si0Der3' R»
British Commissioners' Report, and in the British Counter- P&f 22Paras'209
Case, with which it fully accords. te^c**811 °0UID
As the statements made by Captain Hooper appear to  r ase'p"152'
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  united state
to note that Captain Hooper in 1892 left Unalaska on the App"ndii,CapSp
10th November, and arrived in San Francisco some time 22s, 233.
before the 21st November, when his Report was made.   On
the passage he saw but two seals.
Captain Ferguson is, however, also quoted to express his Pa§6 105-
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. From the evidence
printed in the British Counter-Case, it is very probable that ^c**811 Co?£
Captain Ferguson may be correct in his conjecture that ai38. |PP'
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 Pacific. 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
132 is not directed to all the indications of the map; but
it is confidently maintained that no 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 Stales on the Pribyloff 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 Power 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 ARGUMENT  OF  GREAT  BRITAIN.
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
"Ranger" 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 collected by Captain
8. Hooper in the Aleutian Islands, while engaged in investigating the range of the fur-seal, though these would be of
material interest, have not been produced by the United i
"2. That the Alaskan Seal-herd has changed its habits as a
result of disturbance on the breeding-islands and of pelagic  .
sealing."
)6. 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.
133 In dealing with the subject described in the heading above quoted, which nearly corresponds with
that discussed by the British Commissioners under their
chapter, "(O.) 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 Table of catches per man and boat given on p. 74 of
the Commissioners' Report, of the degree 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
^p°Eme;of "stagey" seals at sea, which is referred to in another
a.~28i. ' part of the British Commissioners' Report.
The Table just referred to, constitutes only a part of the
evidence showing that no decrease in seals has been
observed at sea in late years. In paras. 403-405 of the
British Commissioners' Report, 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. ARGUMENT  OF  GREAT  BRITAIN. 1
On both these subjects much additional evidence is now British o
available, and this is entirely confirmatory of the generalaTa^Appen
statements made by the Commissioners. vo1- "-pp- *
In respect to the Table, the complaint is made that it*3-188'
includes but five years—1887-91. 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,
134     so far as they exist, for the whole period of pelagic  *"g«>ioe.
sealing, are given in the Appendix to the Report, 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 in 1885 is  Bagew.
not known, it was naturally impossible to present the aver-   British c
age number of seals per boat taken in that year, while in poX°Appen
1886 several of the sealing-vessels were seized in Behring p- 209-
Sea, and as there was no record of the number of sealsv
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 into in the Pageios.
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 are shown in the British Commissioners' Table to missioners-'
have transhipped their skins at Sand Point, but to have port, pomade 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 Point, 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 Flattery, return to Victoria to
refit, and there discharge their skins. These vessels continue sealing along the British Columbia coast, and that ARGUMENT  OF  GREAT  BRITAIN.
part of their catch taken on this portion of the coast should
also be included under theheading " spring catch " or "lower
coast" catch in the Table referred to. It is thus evi-
135     dent that no proximately accurate separation can be
made of the "coast" and "spring" catches, and that
any Table prepared for the purposi
ki
lde
i take
outh
3 has been done iu the Table given b
claimed for the years 1889,1890, and 18£
to show how misleading the Table prin
States Case is, the years 1886,1887, ai
been included in the Table.
The explanation offered for the inclns:
of the "coast catch" in the Table prese
States  Counter-Case (p. 411) is that <
illed
3 part
nited
9 the
Va
The Br:
this sti
Isla
It is thus evide
m the "coast" pi
91,
jwha
il8
the
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 vears:
136         Year.
z
sels.
Total
Catch.
Coast
Catoh.
per
ofBoats
oTclS.
1887 '.
16
20
24,344
20,266
24,329
11,344
709
555
123
16.8
1890 .
43
toil
482
327
63! 4
The statement is made on this page of the United
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 independenl ARGUMENT  OF  GREAT BRITAIN. Ill
On reading the paragraph of the British Commissioners'
Report referred to (para. 219), it will be found that the
Commissioneis' statement is not intended to apply to all
the seals in Behring Sea, and fuither that the concluding
expression is not that employed above, buf^- p^lST8 siB0
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' Report, 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 Commissioners' Report will show.* Additional facts,
with the same meaning, have subsequently been observed British conn-
by Mr. Macoun. a5x,Cvoi!'i,ApPPiS"
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
137     Department of Canada for analysis are not printed   Pas6 w»-
in full in the Report, but synopses of the results   British com-
obtained by such analysis are given on the face of the maps p0lst,10Maps iii
to which they refer.  If the United States seriously entertain ***IV-
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 Report. 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"  Pases 106.107-
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 ^rftish conn-
their Report.   More complete evidence will be found on a£, voi.'ii, p.e«
this point in the statements appended to the Britishet "i-
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
*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 Report, p. 141. } ARGUMENT  OF  GREAT  BRITAIN.
itish com- "stagey" condition is supposed by the British Commission-
para8^.6'ers 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
itish com- "stagey" season, then no seals should be found at seadur-
i^j8'28^e"ing that season.   The "stagey" season begins about the
.     '    '   middle of August and lasts for some six weeks.   Thus,
.rtt*p 46.s"s according to the argument advanced by the United States,
nyoarnath rf no seals should be found at sea from the middle of
hlme'rican 138     August up to and after the 15th September.   This
iipeds,"p. jS; h0Wever, wholly negatived by the known facts
ges io6,107. relating to pelagic sealing.
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
•s counter1 are taken at sea.   Affidavits on this subject are produced
, Appendix! from Messrs. C. Behlow, W. Preiss, and W. E. Martin.
57,376,384.  ]yjessrg_ Behlow and. Preiss 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.
go 109. The second section (b) 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:
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' Report, that the statement here made is
not theirs, but one embodied for the purposes of attack in
the United States Counter-Case itself.
loners^ p™'    ^e Commissioners believe the freedom from disturbance
paras. 3i, and attack to be the principal or ruling cause, but not
ftish°°coun-tne sole cause> °f the resort of seals to any particular place
iase,p.i46.  at the breeding season.   The subject is, moreover, further
treated in the British Counter-Case,
'ifter case8    ** is not> however,in the Counter-Case of the United
45-148.     ' 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
139     to the south of the Aleutian Islands.   Reference is
made to some of the statements on this subject con- ARGUMENT OF  GREAT BRITAIN. 11
tained in the Report of the British Commissioners, and  British ooi
it is then stated that the Commissioners have failed to port™™ «
authenticate these.   This alleged " failure" must of course *?■ 5&6M-' s
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 teScS?a™
British Columbian and Alaskan coasts to the south of the^^i.pp.ii
Aleutian Islands, go far to reinforce the already strong136'
body of evidence on this point adduced by the British
Commissioners.
Attention is then, in the United States Counter-Case,   £as° m>-
directed to the statement made by the British Commis- c™nterSc*
sioners, on the basis of information gained by them on the Appendix, p. k
Commander Islands and at Petropavlovsky, as to the formation or attempted fofmation of new rookeries at various
places on the Asiatic coast.   Mr. Malonavonski is quoted
as having visited one such reported rookery on the Kamts-
chatka coast, and as having found the animals there to be
sea-lions and not fur-seals.   Upon this single inconclusive
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.
Mr. Grrebnitzky 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  ibid., p. 363.
from this gentleman, for the purpose of counteracting his
statements asquoted in the British Commissioners'Report,   ibid.,p.362.
he has not in this document contradicted his specific refer- mSsioners^E1
ence to the formation of a new fur-seal .rookery on the port,para. 519.
Kamtschatka coast.
The great importance evidently attached by the United
States to the denial of the evidence showing that tW 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 com-
140 plete details respecting the existence of such breeding-places (other than the Pribyloff 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 Islands, and
that, even if constantly disturbed by man while on the rookeries they
would seek a new habitation.
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
Pribyloff 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 Pribyloff 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
b s, pt x 8 114 ARGUMENT  OF  GREAT BRITAIN.
some proprietary right in the seals them selves, it is a wholly
misleading one.   What " habitation," as distinguished from
" home," may imply is not explained.
Page 111. The reference next made on this page of the United
te^case11 Appe^ States Counter-Case to Robben Island and its rookeries,
dix,voi.'ii,pp.89, renders it appropriate to point out that in the very years
113' in 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 Robben Island, but the presumption is in favour of that
belief,
ibid., pp. 34,35. jn 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 Rocks, Raikoke Island, and Shed-noi Island of the
Kurile group, Bittern Rocks 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.
141 Occasion is next taken on this page of the United
States Counter-Case, to contradict or modify the
evidence of one witness out of three quoted in para. 422
of the British Commissioners' Report, in which it is stated
that, concurrently with the beginning of the United States
control of the Pribyloff 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.
Counter3-ci'sT ^ematter has been considered to be of so great impor-
Appendix,pa4i3'.tance by the United States, that Professor 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
mis!£oner8?Ke':il} 1868> was confined in its effect to the next year. The
nort^Diagramdiagram given by the Commissioners, in fact shows that
 °°sothe greatly increased Indian catches along the British
Columbian coast actually occurred in 1870 and 1871. APPENDIX TO ARGUMENT.
Remarks on the United States Evidence.
> Any 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 Pribyloff Islands under the United States Government control,
and who were the authors of official Reports and other writings on the
condition of the islands; but that such earlier and public official
Reports 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 Reports and writings:
» -st™-
Reports, Evidence, or published Writings, for-
Where Reports
referred to in
United States
Case.
Date of
to Priby-
loff
Islands.
Ch B   ant
Sen., 41st>Cong., 2nd Sess., Ex.Doo. No. 32; H.R.,
41st Cong., 3rd Sess., Ex. Doc. No. 122; H. E.,
42nd Cong., 2nd Sess., Ex. Doc. No. 20; H. P..,
44th Cong., 1st Sess., Ex. Doc. No. 83; "Monograph of North American Pinnipeds," p. 381 et
H. S.','41st Cong., 3rd Sess., Ex. Doc. No. 122, p. 5;
H. E., Ex. Doc, 44th Cong., 1st Sess., No. 83;
H. E., 50th Cong., 2nd Sess., Eep. No. 3883, p. 1.
1877
Stephen N. Bnynitsky.
■«;
H.H. Mclntyre	
Sen., 41st Cong., 2nd Sess., Ex. Doc. No. 36; H. R.,
50th Cong., 2nd Sess., Rep. No. 3883, p. 116.
Jacob H. Moulton	
Joseph Murray	
S.R.Nettleton	
H.R., 50tn Cong., 2nd Sess., Rep. No. 3883, p. 250..
Sen., 51st Cong., 2nd Sess., Ex. Doc. No. 49	
1884
1M91
 -'	
1881
Milton Barnes	
Henry A. Glidden	
Ch.J.Goff	
Louis Kimmel	
T.F.Ryan	
'fi'ii"50th Cong"2nd Ses8"."Eep;ifo."8888," p. 17....
Sen., 51st Cong., 2nd Sess., Ex. Doc. No. 49; letter
vol. i, pp. 84, 85.'
H. B., 42nuCong., 2nd Sess., Ex. Doc. No. 20, p. 2;
H. R., 44th Cong., 1st Sess., Ex. Doc No. 83.
 1885
1890
1876
1881
George Wardman	
1885 116
ARGUMENT  OF  GREAT BRITAIN.
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 Pribyloff 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
Reports, as the following few examples will show:
Stephen 23". Buynitsky.-
Pribyloffs:
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. R., 50th Congress,
2nd Session, Report No. 3883, p. 12.)
H. H. Mclntyre.—As to the movements of
The fact is that the bachelor seals may       Yet the:
be fouud to-day upon a certain rookery,    defined ai
instances, have been counted two or three    thev alwa
times.—(H. R., 50th Congress, 2nd  S
sion, Report No. 3883, p. 116.)
i to the existence of fish near the
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.)
while on the islands:
> seals') habits are so well
varying that it is an easy
line whether they ii
Y always occupy the same portions <
;ain beaches, and simply expand c
tract the boundaries of the rookerw
As to the scarcity of bulls:
There are at present (1888), in my opin- ', While I was loci
ion, too few bull seals to keep the rook- islands there was at
eries up to their best condition.—(H. R., number of adult ma'
50th Congress, 2nd Session, Report No. essary to fertilize th
When we are left only exactly the nam-    time when there wei
ber of bulls we need, and a few even pf    on  the  rookeries v
these are killed; it completely upsets our    obtain female consc
calculations, with the result of leaving    Case, vol. ii, p. 45.)
too few of this class of animals to secure
the full productiveness of the rookeries.—
(H. R., 50th Congress, 2nd Session, Report
No. 3883, p. 130.)
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. R., 50th Congress, 2nd
Session, Report No. 3883, p. 26.)
J. H. Moulton.—As to the increas
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. R., 50th Congress, 2nd Session,Report No. 3883, p. 255.)
Charles A. Goff.—As to driving:
Raids c
We closed the seaso
86 per cent, [of the s
which proves to eve
the rookeries by marauders
aid 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.)
e of seals on islands:
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.)
o oalled), but the numbei s ARGUMENT  OP  GREAT BRITAIN.
117
. that we were redriving the yearlings,    injured is
and, considering the number of skins    no  appret        -jt-^^  »««»..  u»
obtained, that it was impossible to secure    through destroying the virility of the
the number allowed by the lease; that    male.—(United  States Case, Appendix,
we were  merely torturing  the  young    vol. ii, p. 113.)
seals, injuring the future lite 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.)
146
It ii
As to causes of decrease:
>vident that the many preying
~i seal life, the killing of the
I believe that the sole cause o
decrease is pelagic sealing, which,
reliable information, I understand t(
ncreased greatly since 1884 or 1885.-
seals in the Pacific Ocean along the Aleutian Islands, and as they come through     0_ ,  „ „ sgss
the passes to the Behring Sea, by pirates (United States Case, Appendi
in these waters, and the indiscriminate p. 112.)
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.)
W.B. Taylor.—As to raids:
These vessels will take occasion to hang
rand the islands, and when there
heavy fog to  go to the rookeries very
often As it is to-day, these
vessels come and kill 5,000, 10,000, and
15,000 seals every year—(H. R., 50th Congress, 2nd Session, Report No. 3883, p. 54.)
George Wardman.—As to increase
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.l77.)
i number of s
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 the sa me numbers annually f—A. About.
I think the breeding seals on the rookeries come in about the same numbers.—
(H. R., 50th Congress, 2nd Session, Report
Charles Bryant.—As
The females go into the
when the pups a:
(Senate, 41st Co'
Doc. No. 32, p. Is
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.)
to the date of cows leaving their pups:
The pup is nursed by its mother from
its birth as long as it remains on 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.)
. weeks old.—
2nd Session, Ex. ARGUMENT  OP   GREAT  BRITAIN.
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 offish.—(" Monograph of North American Pinnipeds," p.
387.)
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 the 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 pnrchase 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. I 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:
The fur-seals resort to the Pribyloff
Providing the conditions were the same
Islands during the summer months for
on the islands the year round as they are
the sole purpose of reproduction.   Those
sharing in these duties necessarily remain
in the summer, and providing the food
supply was sufficient in the immediate
on or near the shore until the young are
vicinity of the islands, I think the seals
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.)
and only leave them by reason of lack of
food and  inclement weather.—(United
States Case, Appendix, vol. ii, p. 5.)
svs:
As to date of fertilization of c
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:
It is probable that the females of this
age (2 years) are fertilized by the bulls,
and leave the islands in the fall pregnant.—(United States Case, Appendix,
vol. ii, p. 6.)
sidei
sof SI
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. R., 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 Btock 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 I 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. R., 44th Congress, 1st Session, Ex.
Doc. No, 83, p. 178.)
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.) ARGUMENT  OP  GREAT  BRITAIN.
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 Reports 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 R. Tingle
are the more important.
The absence of all reference to the writings or opinions of Mr.
Mr. H. W. Elliott forms a particularly noticeable omission.Hott-
From 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 Pribyloff 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 4*th
winter of 1872-73 a Bill was pending before Congress, framed by Mr. Se||-
Boutwell, providing for the establishment of four Treasury Agents on p'
the Seal Islands. Professor Baird, of the Smithsonian Institute,
148 was very desirous that 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 me. 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 I 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. Richardson and my
-friends here a great desire to go to the coast of Asia to visit the
Russian Seal Islands in order to complete and extend my work begun
on our own islands. Mr. Richardson said that he had no authority to
send me; that I could go only by authority of Congress. Accordingly
I 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 "Reliance" 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 Francisco, and submitted our Reports to
Secretary Bristow. A few days after mine was submitted, Lieutenant
Maynard submitted his Report, the contents of* which I knew nothing
of until lately, when it was sent to Congress, in obedience to an order
of the House.   .   .   . 120 ARGUMENT  OP  GREAT BRITAIN.
5ist Cong., 2nd It should be added that as late as 1890 this gentleman
sess., h. it 7903. a.g.,^ visited and investigated the breeding resorts on the
Pribyloff Islands as the trusted Agent of the United
States, and again under the mandate of a special Act of
Congress, but that the Report 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 Reports
and writings on the subject of seal life:
1. Report on the Pribyloff group or Seal Islands of Alaska.—(Washington Government Printing Office, 1873.)
2. Report to Secretary of the Treasury concerning the waste of seal
oil, and the "natives "of the Pribyloff Islands, and the brewing of
quass.—(H. R., 44th Congress, 1st Session, Ex. Doc. No. 83, pp. 103
and 104.)
3. Report 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. "The Seal Islands of Alaska."—(Washington Government Printing Office, 1881.)
6. Report on the Seal Islands of Alaska.—(Washington Government
Printing Office, 1884.)
7. " Our Arctic Province."
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 Reports of
Agents appointed by the United States to control the
Pribyloff 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 Reports 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 Report, made in pursuance to a special Act of
Congress, should be suppressed.
Mr.A.w.Lav-    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.W.
Lavender."   These are very numerous, some being
149     taken at Sitka, others at Washington, others at
Kadiak, Nicholas Bay, Dixon Entrance, Victoria,
San Francisco, and Lynn Canal.
united states    On reference to the declarations it will be found that this
vof'iiApp!n24i' gentleman purports to have attested declarations at these
24ii>id n 332    'various Pieces all on the same day.   Thus, on the 14th
ihidi pp. 400, 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. ARGUMENT  OP  GREAT BRITAIN.
Other examples may be found, as to the 26th April, at
pp. 257, 357, and 306; 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, ap- Mr. Jo
pears to have been able to attest affidavits in two places atMarray>
once. For instance, on the 13th April he attested the declaration of Isaac Leonard at Kadiak, and on the same day
the declaration of E. W. Littlejohn at San Francisco, 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 T?"> M<
Indians who inhabit Neah Bay and district appear in the Indi*nfl-
United States Appendix. None of these 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
it will 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 P. 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 P. 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 decla- B^^i'bt
rations by one Charles J. Behlow as to accurate examinations purporting to be made by him of certain cargoes 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 2 ARGUMENT  OP  GREAT  BRITAIN.
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 Report on them will be found
on p. 112, vol. ii, British Counter-Case, Appendix. This
Report 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,
nited states The various statisticalTables used throughout the United
es' States Case and Counter-Case contain many regrettable
errors, which will at the proper time be pointed out.   It is
sufficient here, as an example of these errors, to
in ter-Case1160     draw attention to the now admitted serious inaccu-
)endix,voi.ii', racies 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.
mtradietory In a great number of cases deponents giving evidence
orations, 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. Fresh 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: ARGUMENT  OF   GREAT BRITAIN.
Statements in Depositions taken
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 c
ight (
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,
I 339.)
As to number of seals lost:
It takes anywhere from one to twenty
I told hin
about three
(British Coi
p. 167.)
[the United States Agent]
out of five were females.—
iter-Case, Appendix, vol. ii,
a the a
I think i
Appendix,;
;e to s<
seal, and
about three out of five
—(United States Case,
L, 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 employed 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 I was in, 5
were lost by sinking; this, 142 were
taken, and 3 were lost by sinking. 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.)
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:
Of the seals that were caught off the I consider half the seals
coast,   fully   90   out  of every 100 had schooner   "E.   B.   Marvir
young pups in them.   .   .    .   [In Behring sealing-vessel he was ever .
Sea] most all of them were females that time I was aboard of her
had given birth to their young on the and a large proportion of these fenial
islands.—(United States Case, Appendix, seals were   barren.—(British   Counter
vol. ii, p. 322.) Case, Appendix, vol. ii, p. 181.)
William Short.—As to proportion of females:
night by the
[the   only
.] during the
s got
When cruizing along the   coast our
principal catch was female seals in pup.    —
Fully 90 per cent, of seals obtained    (British Counter-Case, Appendix, vol. ii,
by'us in Bebring Sea were cows in milk.—    p. 182.)
(United States Case, Appendix, vol. ii,
p. 348.)
151
George Dishow.—As to number of females:
A large proportion of all the seals taken Sometimes I got n
are females in pup.—(United States Case, males, and sometime!
Appendix, fM P- 323.) -le. ^-g^
half.—(British Counter-Case, Appendix,
vol. ii, p. 57.)
ales than fe-
females than
»xo  together, I
about half  and ARGUMENT  OP  GREAT  BRITAIN.
As to nursi
Most of the st
lales.    H
3 in Behring Sea:
Appei
from the islands, t
(United States C
p. 323.)
As to close season:
I think a closed season she
tablished for breeding seals f
January to the loth August, ii
Pacific Ocean and Behring Ses
States Case, Appendix, vol. ii
Case, Appendi
3re  [in Behring Sea]
-(Un
I told him [Uni
thought the Sea c
about end of July
in.—(British Count
vol. ii, p. 57.)
Niels Bonde.—As to proportion of females:
>uld say that about 60 per cent, on
ast were females, and about 50 per
females in Behring Sea.—(British
er-Case, Appendix, vol. ii, p. 94.)
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:
A 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 s
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 Flattery,
. . . . 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 sealing voyage,
"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.)
James Robert Jamieson.—As to number of seals lost:
The ordinary white hunter will, on an       I think the average hi
average, lose over half that he kills and    one-third the seals shot i
wounds.—(United  States Case, Appen-    over one sea.l   in twnn
clix, vol. ii. p. 331.)
aissed half of those
nded a few, which
bw.—(British Coun-
, if at all—(Brit
e females wei
Case, Appendix,
152        As to proportion of females and pregnancy:
long the coast, I think        Not o-v
of those we caught     caught o
In hunting
about 80 pe:
were females, and most of them   ..
carrying their young.—(United States
Case, Appendix, vol. ii, p. 330.)
i forty of the female
e with pup inside.—(British Coun-1
e, Appendix, vol. ii,p. 180.) ARGUMENT  OP
GREAT  BRITAIN.                             125
Herbert Shelley Bevington.—As
to prohibition of pelagic sealing:
the continual  supply1 of" fur-seal' skinj
catchT^alfup^on. * *""""'*
and  regular   in supply™ a  abwSutely
I am of opinion that the North-west
necessary to the maintenance of this industry	
He has no hesitation in saving that the
best way to accomplish that object would
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, how-
and I think the trade would object; to ite
disappearance.   Its total suppression, in
my opinion, would tend to create a monopoly, and would place the whole busi-
time being owning the islands, and this"
Case, Appendix, voLii,p.249?)
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 oaught
by each vessel should be   specified .-
(United States Case, Appendix, vol. ii,
Herbert Shelley Bevington.—As
That the differences between the three
to intermingling:
they reach the market the skins of each    less marked manner resembled the other
class come separately and are not found    class, but I consider the buBi can be dis-
mingled with   those  belonging to  the    tingnished.—(British Counter-Case, Ap-
other classes.—(United States Case, Ap-    pendix, vol. ii, p. 249.)
. pendix,vol.ii,p.55i.)
Leon Revillon, member of the firm of Re>illon Freres, of Paris.—As
to prohibition of pelagic sealing:
We firmly believe that if'the slaughter       5. Q. The next point, M. Revillon, is as
of the North-west coast fur-seals is not    to the last paragraph of your deposition,
stopped or regulated, the Alaska fur-seals    of which the marginal note reads: "If
fiir -^ealf 1Cwill ^ dfs'annear. 'H — I United    meant to convey!—A. No; I do notthink
States Case, Appendix, vol. ii, p. 590.)
it does.   I did not intend to convey that
6. Q. Would not the total suppression
of all pelagic sealing have the effect of
anabsolute monopoly of the business in
this cl ass of seals t—A. This might be so;
LfX^&wSS?b*i*rSSJ4,S ARGUMENT  OP  GREAT  BRITAIN.
H. Poland.—As to intermingling:
That the three classes of skins above
mentioned [Alaska, Copper, and Northwest]  are   easily   distinguishable
153     from  each   other by  any   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 this
• firm, and would himself have no difficulty
in distinguishing the skin of the Copper    also noticed in  the Alaska catch that
Island catch from the skin of the Alaska    there are in some particular years skins
and North-west catch.—(United States    which are undistinguishable from Cop-
Case, Appendix, vol. ii, p. 571.) per Island skins.—(British Counter-Case,
Appendix, vol. ii, p. 250.)
William Charles Blatspiel Stamp.—As to intermingling:
I admit that amongst the Copper Island
catch there is a certain percentage of
skins which are for the most part undistinguishable from the 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 of
e of these would be less dense.   I have
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 they can be understood by any per-
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
i. certain percentage of skins which w
a who has no practical knowledge of   facsimiles of Copper Island skins, and ii
the same way, inspecting consignments
of Copper Island skins, I have seen skins
which had I seen them elsewhere, Ishould
have classed as Alaskas, and also a certain number of the intermediate degrees
of similarity.—(British Counter-Case,
Appendix, vol. ii, p. 245.)
to prohibition of pelagic
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 slifht
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.)
William Charles Blatspiel Stamp
sealing:
That the continued existence of the fur- I am not in favour of the suppression of
seal business is dependent, in deponent's the North-west catch. In my opinion it
judgment, upon the preservation of the wouldbeneitherjustnorpracticable. It
seal herds frequenting the North Pacific wouldnot be just, because I consider that
region, and is also a most important ele- the Canadians have a right'to catch the
ment in the industry, that the supply of seals frequenting the sea adjoining their
irw ™™;r,<r ir>+.n i\,c ^or-v^ „o„t, 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. *
That some Regulations are necessary
for the preservation of the seal herds frequenting the Northern Pacific region.—
(United States Case, Appendix, vol. ii, ARGUMENT  OP  GREAT  BRITAIN.
Emile Hertz, member of the firm of Emile Hertz and Co., Paris.-
to intermingling:   •
That the said firm can distinguish very
readily the source of production of the
skins when the latter are in their un-
dressedstate.—(United States Appendix,
vol. ii, p. 588.)
Norman Hodgson.—As to sorting
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 seal-
ing-schooner "Henrietta," which skins,
according to log and sealing-book of
154 said vessel, were taken in Bering 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.
(Signed) C. L. Hoopee,
Notary Public, District of Alaska.
—(United States Counter-Case, p. 369.)
As to seals sinking:
about 60 or 65 per cent, of all fur-seals
shot in the season.—(United States Case,
Appendix ii, p. 367.)
Charles Campbell:
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.)
Clat-ka-koi.—As to hunting on a
He does not hunt seal in schooners.
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 theconsignments
of this latter sort skins resembling the
Alaska kind, but I believe it to be impos-
•sible to affirm absolutely that these doubtful skins belong to one or other of these
two localities.—(British Counter-Case,
Appendix, vol. ii, p. 242.)
male from female skins:
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 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 wish ed 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 toll, 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.)
Lose very few seals by sinking; from 5
to 10 per cent, will cover my total loss in
th at 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-Qlase,
Appendix, vol. ii, p. 77.)
oast:
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. 128
ARGUMENT  OF  GREAT  BRITAIN.
herring ii
hurriedly
killed.—(
lited States Case, p. 305.)
I told him [United States Agent] Ihad
seen seals inside of Barclay Sound, and
had 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:
I told l
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.
I told him [United States Agent] that
>ur tribe and the Opichissets manned
thirty canoes to hunt seals from the shore
this last season. He never asked me how
iy skins the whole tribe had got, but
r 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, and I
aid about 40 hunting off the coast in a
schooner I did not tell hini
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 in 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.
To his knowledge, no seals ever c
inside Barclay Sound, and that he n
caught any inside, and, moreover, he and
his friends never heard of any entering
these waters.
155 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, ii
all, 500 skins The fifty mei
who went out from this village joinet
schooners, two in number, and the seals
were caught about 20 miles to soi
and westward of Cape Flattery. Of the
number caught, 300 were caught and
killed by the natives of this villa
(United States Case, pp. 306,307.)
Imihap.—As to hunting on coast:
Certifies as to evidence given by Ehenchesut to United States being true.—    c
(United States Case, p. 308.)
Ohileta.—As to hunting on coast.
Certifies as to evidence given by Ehenchesut being true.—(United States Cas
p. 308.)
[See testimony of Ehenchesut above.
Certifies to evidence given by Ehei
chesut to Great Britain being true.-
(British Counter-Case, Appendix, vol. i
p. 156.)
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
Rocks."—(British Counter-Case, Appendix, vol. ii, p. 145.) ARGUMENT  OP  GREAT  BRITAIN.
John Margathe (Margotich).—As to seals in Barcla
Barclay Sound, and a
the coast at a distan
miles.   They are fou
lally found off the
from 5 to 15 islai
l clear water,    ever
129
He is also agent for five seating-vessels Never said I was
owned in Victoria.—(United States Case, vessels, because 11
pp. 308, 309.) (British Counter-(
p. 154.)
Wackenunesch.—As to seals in Barclay Sound:
States that seals do not come in close I was asked [by
to shore in this locality [Barclay Sound], many questions, a
Seals are caught off the coast at from 5 many seals in the
to 20 miles.   Formerly Indians hunted coast this year, bn
q for food, but nowadays white men were plenty.   Sail
em for thei
ainishing ii
ne-half as many as last. In his
the seals will soon be extermi-
nd in three years there will be no
laling.—(United States Case, p.
Indians formerly hunted the seals for
ir food, but now they hunted them for
ir skins. White man asked me how
a; I thought it would be before there
6 Charlie Hayuks.—As to hunting on coast:
Certifies to truth of what Wackenu-       A year ago last sp
sch said.—(United States'Case, p. 312.)     took over 1,000 seali
Wffliam 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,
myself, and personally k
whatever about the loss th:
of seals that are „shot, no;
knowledge personaUy
caught.—(British Con
186.)
whei
whether the
i they are
William Hermann.—As to loss hunting:
One seal secured to two lost.—(United       I would not lose more than 6 seals
States Case, Appendix, vol. ii, p. 445.) 100 that. I would hit.—(British Counl
Case, Appendix, voL u, p. 118.)
B S, PT X 9 ARGUMENT  OF   GREAT  BRITAIN.
G. Miner.—As to loss hunting:
33 per cent, of the seals shot with the
shot-gun are lost.—(United States Case,
Appendix, vol. ii, p. 466.)
As to proportion of females:
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.)
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.)
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:
Frank Moreau.-
3 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:
he loss from sinkage through being
ed or mortally wounded would not be
a-ter than 8 per cent., which would
er the whole loss.—(British Counter-
e, 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.-
I think
to loss hunting:
out of        I I
i the average I got
y luiee killed, but some of my nam-
iid not do as well.—(United States
i, Appendix, vol. ii, p. 409.)
I 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
"ish Counter-Case, Appendix,
8.)
As to decrease of seals:
were not nearly sc
they were in 1877.
lk it possible for seals to exist for
fth of time if the present slaughter
-(United States Case, Appen-
p. 409.)
I do
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.) ARGUMENT  OP  GREAT BRITAIN. 131
*   As to proportion of females:
85 per cent, of my catch of seals along       About 60 per cent. I think would be
the coast of the North Pacific Ocean were    about the average run of females, and it
females.—(United States Case, Appendix,    would run about the same in Behring
vol. ii, p. 409.) Sea.—(British Counter-Case, Appendix,
vol. ii, p. 139.)
It is unnecessary to give any further examples, although if this should
be 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.  SEA. ARBITRATION.
INDEX TO BRITISH ARGUMENT.
Alaska-
Cession of	
United States Statutes dealing with	
Aleutian Islands.   Passes through	
Argentine Republic.   Seal Fishery Regulations.
T>art     I. First 4 points of ArHole VI.
"     II. Point'-' *-"-'- t
"   m. Regu
XV. Dams
Article VI-
II.   Point 5 of Article VI	
m.   Regulations	
"    XV.   Damages and compensation	
Propositions maintained by Her Majesty's Government in	
"• ' emeof	
VI—
 iclusions established by arguments on	
Propositions maintained by Her Majesty's Government on Point £
Article VII of TreL.„
Origin of	
Regulations contemplated under	
Australian Pearl Fisheries legislation	
Bed of the sea sometimes regarded as territory..
Behring Sea—
lot be made a close se
■locked	
No^and-lc-^
Part of the Pacific	
Regulations limited to eastern part of	
Behring Strait.   Width of.	
British Columbia.   Winter hoine 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 Fishery Regnlatioi
Canada.   Fishery Act of 1886	
Cape of Good Hope.   Seal fishery legislation	
Cases cited—
Reg.». Keyn	
Copeu.Doherty!	
Jeffreys v. Boosey  	
Blainre Sawers.........	
Macleod v. Agent General for New South Wales	
"Carolena."   Seizure of	
Caspian Sea.   Seal fisheries in	
Cession of Alaska—
Rights acquired by United States	
TT.3+...1-S<£fa»  SUn£,feui    Hoolino-   with    	
e seal fishery legislation	
m of United States-
Different forms in which it Is preset
To protection apart from property..
imbian pearl fisheries....	
United States claim for	
160      Contentions of—
GreatBritain	
United States Governnfc
Conventions. Legislation by..
Coral fisheries	 ARGUMENT  OP  GREAT  BRITAIN.
Index to British argument—Continued.
Damages-
British olaim for	
Dawson, Judge.   Decision oft in eases'of"" Thornton"" and'vDolpliin"'.*... L
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	
Exolusive rights of United States are lost when seals are on high sea	
Falkland Islands.   Seal fishery legislation	
Fur-seals are	
laws of Great Britain and United States as to, identical	
Fishery Conventions.   Argumen ta 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	
Cannot be classified as domestic	
Food of, derive/from high aeaaY.YY..Y.Y.YY.Y.Y.Y.Y.Y..Y.Y.YY.Y..Y.Y.Y.
Is pelagic in habit	
Not provided with food by man	
Undoubtedly farce natures	
Great Britain.   Contentions of	
Greenhow includes Behring Sea in Pacific	
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	
United States Argument based on ,
Intermingling of seals—
Between St. Paul and St. George Islands	
In North Paciflo	
International law—
Cannot create new principles	
Derived from practice of nations	
Sources of	
Irish oyster fisheries legislation	
Italian coral fisheries	
"James G. Swan."   Case of the	
Japan seal fisheries legislation	
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 Argument derived from,
legal principles.   Examination of.	
"lelouis."   Case of.	
''lisiere " as distinguished from north-west coast	
161    lobos Islands.   Sealfishery	
low-watermark.   Limitof territory	
Malice not alleged against pelagio sealers	
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 North Pacifi.
Newfoundland seal fishery legislation	 ARGUMENT  OP  GREAT BRITAIN.
Index to British argument—Continued.
Mis-
•y legislation
nited States Case i
Extended to Behring Strait	
Includes whole north-west coast of N
Limited meaning placed on, by Unite<
Norwegian whale fisheries	
Notice issued by United States in 1845	
"Onward."   Seizure of	
Pacific Ocean—
Commonly used to inolnde Behring Si
Inch
Conditions
Examples
Right of, c
Pribyloff Islands. Descripti
Property and possession of i
Property, claim of, by Unite*
ie Act, li
ler Majesty's <
raised by Article.VI stated..
a violation of possession rights of United Si
ment addressed to question of.	
ealfisheries-
jgentine Republic	
Cape of Good Hope.
Mr. Wharton's proposal for.
Must be just to all concerned
Position of United States G<
Should be binding on aU nat
rell as pelagio sealing..
Revised Statutes of Units
Rights claimed by United Stati
Rights of United St-*- ■
rights asserted by United Stati 136 ARGUMENT  OP  GREAT  BRITAIN.
Index to British argument—Continued.
Urug^^fnSef^Sn-          '                  "
21,22
48
29 J    i*Yt 

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