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British Columbia Historical Books Collection
Fur seal arbitration
Bering Sea Tribunal of Arbitration
"Final report of the agent of the United States; protocols of the proceedings of the Tribunal; award and declaration; opinions of Mr. Justice Harlan and Senator Morgan" -- First page "([United States] 53d Cong., 2d sess. Senate. Ex. doc. 177, pts. 1-16)" -- Lowther, B. J., & Laing, M. (1968). A bibliography of British Columbia: Laying the foundations, 1849-1899. Victoria, BC: University of Victoria, p. 126.
86, 228, 129 pages : tables ; 24 cm
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FUR SEAL ARBITRATION. PROCEEDINGS of the Tribunal of Arbitration, CONVENED AT PARIS UNDER THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED AT WASHINGTON FEBRUARY 29,1892, DETERMINATION OF QUESTIONS BETWEEN THE TWO GOVERNMENTS CONCERNING THE JURISDICTIONAL RIGHTS OF THE UNITED STATES in the WATERS OF BERING SEA, VOLUME I, WASHINGTON: GOYJSKNMENT PRINTING OFFICE, 1895, FUR SEAL ARBITRATION. FINAL REPORT OF THE AGENT OF THE UNITED STATES; PROTOCOLS OF THE PROCEEDINGS OF THE TRIBUNAL; AWARD AND DECLARATION; OPINIONS OF MR. JUSTICE HARLAN AND SENATOR MORGAN. FINAL REPORT OF THE AGENT OF THE UNITED STATES. Agency of the United States, Paris, August 10,1803. Honorable W. Q. Gresham, Secretary of State, Washington, J). 0. Sir: As agent of the United States, appointed under the treaty of February 29,1892, providing for the submission to arbitration of the questions which had arisen between the United States and Great Britain respecting the far seals of the Pribilof Islands, I now have the honor to transmit to you the following report of the proceedings and results of the arbitration: When I entered upon my duties as agent, in May, 1892, it was found that no steps had up to that time been taken to collect evidence in authentic form to support*the claims put forward by the United States, and which were, by the treaty of February 29,1892, to be submitted to the Tribunal of Arbitration. I conceived it to be my duty under the treaty, in the preparation of the case of the United States, to embrace in that documeut a presentation of all the questions of law and of fact which were by the treaty submitted to arbitration, and to support the claims of the United States in respect thereto by all the evidence in the possession or within the reach of the Government. I therefore proceeded with as much promptness and thoroughness as the time and means at my command allowed to collect all the evidence which was pertinent and proper to lay before the Tribunal of Arbitration, tending to establish the position assumed by the United States respecting the five points set forth in Article VI of the treaty and embracing the facts necessary to a determination of the regulations referred to in Article VII. The printed case of the United States, accompanied by the documents, official correspondence, and other evidence relied upon in support thereof, was delivered to the agent of Great Britain and to the arbitrators between the 1st and 6th of September, 1892, or within the time fixed by the treaty; and the printed case of Great Britain was in like manner delivered to me by the agent of that Government. When the printed case of Great Britain was examined it was found to contain no evidence whatever touching the nature and habits of the seals, the consideration of which was necessary to the determination of the main questions submitted to the Tribunal, which were embraced 5 6 FINAL REPORT OF THE AGENT OF THE UNITED STATES. in the fifth point of Article VI, concerning the right of protection or property asserted by the United States in the seals inhabiting the Pribilof Islands, and in Article VII, concerning concurrent regulations. By direction of the President, the Secretary of State addressed a note to the British representative in Washington, under date of September 27,1892, protesting against this omission in the printed case of Great Britain, as a failure to comply with the requirement of the treaty. Attention was called to the fact that it was manifestly contemplated by that compact that both parties should simultaneously submit to the arbitrators and to each other their propositions, their claims, and their evidence upon all points in dispute; that it was well known to the British Government that the decision of the two questions above referred to must depend upon the evidence produced concerning the nature and habits of the fur seal, and the metbods of capture and killing, which are consistent with the preservation of the species; that only one opportunity was afforded each party to submit evidence upon these important questions, and that was to be availed of in the original case, except so far as evidence in rebuttal might be legitimate in tbe counter case; that to reserve the evidence,which Great Britain might choose to submit on these matters to the counter case would be to afford to the United States no opportunity whatever to meet it by any rebutting, explanatory, or impeaching testimony; and that the United States could not assent to results so grossly unjust and prejudicial, and so contrary to the spirit and terms of the treaty. The Secretary of State expressed the earnest desire of the . President that the arbitration should proceed, but only according to the treaty, the object of which was to provide a fair trial; and that he entertained the greatest confidence that the British Government would correct the errors which had been made by its representatives in charge of its case To this representation the Secretary for Foreign Affairs of Great Britain responded that the fifth point of Article VI, respecting the right of protection and of property in the seals, in the opinion of Her Britannic Majesty's Government, depended upon questions of law, and not upon the habits of seals and the incidents of seal life; that the concurrent regulations referred to in Article VII were not to be taken up for consideration by the Tribunal, except in the contingency of a decision upon the five points in Article VI unfavorable to the claim of the United States, and so that the subject would be left in such a position that the concurrence of Great Britain should be necessary for the establishment of proper regulations; and that it would have been inconsistent, illogical, and improper to have introduced into the British case matter which, in the opinion of his Government, could only be legitimately used when the question of concurrent regulations was under consideration. But the Government of the United States having expressed a different view, Her Majesty's Government, the Secretary FINAL REPORT OF THE AGENT OF THE UNITED STATES. for Foreign Affairs stated, being desirous to facilitate the progress of the arbitration, would furnish at once to the Government of the United States and to the arbitrators the report of the British Commissioners appointed under Article IX of the treaty, which might be treated as a part of the case of Great Britain. The Secretary of State, in reply to the British Secretary for Foreign Affairs, concurred with him in the view that the fifth point of Article VI, respecting the right of protection or property in the seals, was a question of law; but he insisted that the precise questions of law could not be known and not therefore determined until the facts out of which they arose were known, and that the facts concerning the nature and habits of fur seals were in the highest degree important for a proper determination of the question embraced in the fifth point. He dissented from the opinion expressed that the submission of evidence was dependent as to time upon any contingency; but he accepted the offer to deliver the report of the British Commissioners as a part of the case of Great Britain, assuming that it contained substantially all the matter upon which that Government would rely to support its contentions in respect to the nature and habits of the fur seals, and reserving the right to protest against and oppose the submission to the arbitrators of any matter which might be inserted in the British counter case not relevant, by way of reply, to the case of the United States. On the 30th of September, 1892, I received notice from the agent of- Great Britain that, in accordance with the provisions of Article IV of the Treaty of Arbitration, the Government of Great Britain would require an additional period of sixty days within which to deliver its counter case. On the 15th of November, 1892, the,British minister in Washington delivered to me printed copies of the report of the British Commissioners as tendered to the Secretary for Foreign Affairs. This report was found to contain a statement and discussion of the nature and habits of the fur seals, of the present condition of the Pribilof seal herd, and of the methods and effects of the killing of seals both in the water and on the land. The report was also accompanied by various appendices on these subjects. In accordance with the provisions of the treaty, the printed counter case of the United States, with accompanying documents, correspondence, and evidence, was delivered on the 3d of February, 1893, to the British agent and to the arbitrators. This counter case had been prepared in accordance with the terms of the treaty, and was in strict reply to the j>rinted case of the British Government. The counter case of Great Britain was delivered to me within the time required by the treaty; but when examined it was found to contain a large body of evidence which could in no proper sense be regarded as in reply to the case of the Tinted States, and which, under the terms of the treaty, should have been presented in the 8 FINAL REPORT OF THE AGENT OF THE UNITED STATES. original case of Great Britain. Its submission at the time and in the form adopted by the British Government deprived the United States of any opportunity to meet it by means of rebutting, explanatory, or impeaching testimony. But while it was regarded by the President and by the counsel of the United States as a wholly unjustifiable proceeding on the part of Great Britain,, it was deemed best to allow the arbitration to proceed, and at the proper time to bring the subject to the attention of the Tribunal. The first session of the Tribunal of Arbitration was held in Paris, in accordance with the terms of the treaty, on February 23, 1893, but, by agreement of the two Governments, it was of an informal character and an adjournment for one month was had without the transaction of any business. On reassembling in Paris, March 23, 1893, the printed argument of each of the parties was laid before the Tribunal. A recess was then taken to April 4, when the counsel for Great Britain submitted a motion that the agent of the United States be called upon to produce the report of Henry W. Elliott, made in 1890, to the Government of the United States. The report of Mr. Elliott had never been published by the Government and had not been used nor alluded to in the case of the United States; but during the joint conference of the Commissioners of the two Governments in Washington in February, 1893, it had, at the request of the British Commissioners, been laid before them for such use as they saw fit to make of it. The counsel for the United States denied that the British Government was entitled under the treaty to an order of the Tribunal for the production of the document, but, waiving their right of objection and not conceding that either party had the right to introduce any further evidence whatever, they offered to lay a copy of the report in question before the Tribunal, upon condition that if it be used in evidence it should be open to the use of both parties equally. The report of Mr. Elliott was therefore produced, and it was printed by the British agent. During the recess following the adjournment of March 23 the agent of Great Britain sent to each of the arbitrators and to the agent of the United States printed copies of a | Supplementary fieport of the British Commissioners Appointed to Inquire into Seal Life in Bering Sea." At the session of the Tribunal on April 4 I presented a motion that this document be dismissed from consideration, on the ground that it wan submitted at a time and in a manner not allowed by the treaty. This motion was supported by the counsel for the United States in arguments at some length, in the course of which they'animadverted upon the course pursued by Great Britain in withholding from its case evidence as to facts" material to the determination of the questions submitted to arbitration and in inserting that evidence in its counter case, by which means the United States was placed at a great disadvantage. While counsel would have been justified by the treaty and the rules of FINAL REPORT OF THE AGENT OF THE UNITED STATE8. 9 judicial procedure in asking the Tribunal to correct the injustice by a rejection of this evidence, counsel stated that the United States was content to allow the arbitration to proceed upon the case and counter case of each party as presented, but that the wrong already committed should not be aggravated by the introduction of further testimony as proposed by means of the supplementary report. After argument by counsel for Great Britain the Tribunal decided that the report should not be received as evidence. It is not deemed necessary to set forth in detail the claims of the two parties as prescribed in the Treaty of Arbitration or the issues joined before the Tribunal. These are fully stated in the case, counter case, and printed argument of each Government which accompany this report. It is sufficient to note that three subjects were submitted to the Tribunal for its consideration and decision! The first of these related to the Russian claim of exclusive jurisdiction in Bering Sea; the second to the right of the United States to protection or property in the fur seals of the Pribilof Islands, and the third to the concurrent regulations neeessaryfor the proper protection and preservation of these seals. The oral argument on these questions provided for in Article V of the treaty began on the 12th of April. By arrangement of counsel, it was agreed that the United States should open and close the argument, Mr. Carter and Mr. Coudert speaking for the United States, followed by the attorney-general of .England, Sir Richard E. Webster, and Mr. Robinson for Great Britain, and Mr. Phelps for the United States, closing the argument. The discussion extended until July 8, with a recess of one week, the Tribunal holding sessions of four hours during four days of each week. Early in the preparation of the case of the United States the conclusion was reached that it would be difficult to sustain the claims which had been put forward by the United States in the diplomatic correspondence as to the exclusive jurisdiction exercised by Russia over the waters of Bering Sea previous to the cession of Alaska. Counsel for .the United States made earnest efforts in support, as far as possible, of the position assumed by our Government in the diplomatic correspondence, but the decision of the Tribunal on the first four points of Article VI was not unexpected. On the fifth point of Article VI, as to the right of protection or property in the fur seals of the Pribilof Islands, counsel for the United States felt themselves upon solid ground of law and of fact. The assertion, indeed, of a right of property in seals which spent half the year in remote regions of the seas was ?udeed a novel one, but novelty itself is no objection to a proposition, and they felt entirely confident of their ability to show that according to the universal laws which underlie the institution of property the fur seals must be deemed to be the property of the United States. 10 FINAL REPORT OF THE AGENT OF THE UNITED STATES. The case of the United States had established the following facts: That the fur seals which were the subject of this arbitration were begotten, born, and reared on the Pribilof Islands, owned by the United States; that they made these islands their home and had, so far as it is known, always done so; that they spent a large part of each year on these islands; that when they left them on their annual migration it was with the fixed intention to return to them, which they did with unvarying regularity, never resorting' to any other land; that they were domestic in their habits and voluntarily placed themselves when on the islands within the control of man; that the existence of the race depended upon the care, industry, and forbearance practiced by the United States toward them, and that but for the protection given them by the United States the race would be destroyed; that the United States alone could take the increase of the seal herd without diminishing the stock, since it could make the necessary discrimination as to sex and age when taking the seals on the islands for commercial purposes; and that the taking of the seals in the sea was necessarily without discrimination as to sex, was wasteful, and would result in destroying the race. Upon these facts the counsel for the United States contended that, as the seals could not possibly be preserved except by according a right of property in them to the United States, the law ought to and did recognize such right of property, and, consequently, the right of protection claimed by our Government. Their proposition 'was, substantially, that wherever any useful thing is dependent for its existence upon the care and industry of man, the men who exercise such care and industry have a right of property in such thing. The counsel of the United States presented these views to the Tribunal at length, with great ability, persistency, and force, and I speak with assurance when I say that at the end of weeks of discussion on both sides their position was unshaken. So far from the British counsel refuting their arguments on this branch of the case, it may be said that they made no effort to refute the above proposition, and tacitly, if not openly, admitting that it ought to be the law, insisted that it was necessary to show that the seals had been distinctly recognized as property before the Tribunal could hold them to be such. The adverse decision of the Tribunal does not, it must be confessed, seem to confirm this view, but its action is susceptible of explanation without any reflection upon the impartiality of the neutral arbitrators. I am pleased to state that they are gentlemen of ability and of the highest standing in their respective countries, and J have no doubt they were inspired by a most conscientious desire to discharge their difficult and somewhat complex duties upon a fair and just basis. But they were confronted with a question novel in its facts and with a claim on the part of the United States which to them seemed in conflict with the accepted doctrine of the freedom of the seas. Further, it is now apparent that it was unwise to have coupled the question of the right of FINAL REPORT OF THE AGENT OF THE UNITED STATES. 11 protection or property with the matter of concurrent regulations necessary for the preservation of the seals. The decision and the protocols lead to the conclusion that the neutral arbitrators looked to the regulations as the best method of adjusting the differences which had arisen between the two litigant nations, and that the arguments of counsel for the United States on the right of protection and property did not, as a consequence,have the weight which the arbitrators would have attached to them if that had been the only question referred for decision. It is to be inferred that they conceived it just and practicable to decide the fifth point Against the United States, and yet attain the main object of the treaty, the preservation of the seals, by the adoption of stringent regulations as to pelagic sealing. Their mistake was not apparent until they had decided the fifth point and came to consider the subject of regulations. Having reached a conclusion in favor of the right of pelagic sealing, it became necessary, in their well-meant effort to reach a compromise between the conflicting interests, to frame such regulations as would, on the one hand, allow pelagic sealing to be carried on with profit, and, on the other hand, not seriously impair the seal herd. This insoluble problem doubtless occasioned them long and anxious deliberations and greatly delayed the final decision. The protocols show that the Tribunal was brought face to face with this problem. When Mr. Justice Harlan submitted a resolution to the effect that the purpose of Article VII of the treaty was to secure the proper protection and preservation of the seals, and that in the framing of regulations no extent of pelagic sealing should be allowed which would seriously endanger the accomplishment of that end, he and Senator Morgan recorded the only votes in its favor, the other arbitrators declining to vote or giving reasons why they could not assent to the declaration. The regulations as finally framed and promulgated are the result of an honest and conscientious effort on the part of the neutral arbitrators to do all that they conceived possible and necessary for the protection and preservation of the seal herd consistent with their decision on the fifth point. These'regulations go much further than the provisions which our Government has proposed in the past, but it is to be observed that later investigations have revealed. perils to which the seals are exposed not then known. It is to be hoped that the regulations when put in operation will realize the best expectations of the Tribunal. Much depends upon the manner in which they are enforced. It is not to be doubted that both Governments, in deference to the expressed directions of the Tribunal and to their own obligations, will adopt all necessary legislation and rules to give them full force and effect. If the recommendation made by the Tribunal for a complete cessation of taking seals both on land and at sea for a few years be adopted, I shall look for satisfactory results from the operation of the regulations. I transmit herewith the original award of the Tribunal of Arbitration and the original protocols of the sessions of the Tribunal. 12 FINAL REPORT OP THE AGENT OF THE UNITED STATES. I lake pleasure in recognizing the hearty manner in which I have been seconded by the counsel for the United States and all other persons associated with me in the preparation of the case and in my labors before the Tribunal. It only remains for me to make acknowledgment of the cordial reception and great hospitality extended by the French Government to the Tribunal of Arbitration and to all the representatives and officials of the United States connected with it. Commodious and-elegant apartments in the Ministry of Foreign Affairs were set apart for the use of the Tribunal, and every provision freely afforded for the dispatch of its business and for the comfort of all persons associated with it. Our .Government has, thereby, been placed under a new debt of gratitude for French hospitality and friendship. I am, sir, very respectfully, your obedient servant, John W. Foster. PROTOCOLS OF THE SEVERAL SESSIONS OF THE TRIBUNAL. PROTOCOL I.i MEETING OF FEBRUARY 23, 1893. The Tribunal assembled at Paris, at the French Ministry for Foreign Affairs. The arbitrators present were: The Honorable John M. Harlan, Justice of the Supreme Court of the United States, one of the arbitrators named by the United States; His Excellency Baron Alphouse de Courcel, French Senator, the arbitrator named by France; The Right Honorable Lord Hannen, Lord of Appeal, one of the arbitrators named by Great Britain; Who, having assured themselves that their respective powers were in good and valid form, Baron de Courcel was invited by his colleagues to take the chair as president for the present meeting. There were present at the meeting: Mr. William Williams, special agent and associate counsel for the United States; the Hon. Charles H. Tupper, as agent of Her Britannic Majesty. Messrs. Williams and Tupper laid before the Tribunal of Arbitration the commissions empowering them to act before the Tribunal. There were also present at the meeting as counsel for Her Britannic Majesty's Government: Sir Charles Russell, Q. C, M. P., Her Britannic Majesty's Attorney- General; Sir Richard Webster, Q. C, M. P., And Mr. Christopher Robinson, Q. C. The president invited Mr. Henri Feer, formerly a consul-general of France, to draw up the protocol of this meeting, with the assistance of Messrs. Williams and Tupper. Mr. Williams, acting for the Government of the United States, asked that the Tribunal adjourn till the L'3d of March.' 14 PROTOCOLS. Mr. Tapper, in the name of the British Government, supported the request of Mr. Williams. Sir Charles Russell, the leading counsel for Great Britain, stated that the counsel, though previously aware of the request which would be made, thought it right to attend the first meeting, out of respect for the Tribunal of Arbitration. The Tribunal of Arbitration acceded to the request made in the name of the two parties, and agreed to adjourn to the 23d of March. The question of the publication of the cases and counter cases having been mentioned, the arbitrators stated that it was not a subject for their consideration. In regard to the publication of the protocol of this meeting, the arbitrators present, finding themselves in insufficient number to give a decision which would bind the Tribunal of Arbitration for the future, announced that the protocol of the meeting of the 23d of February should be kept secret until further orders. The Tribunal of Arbitration adjourned till March 23. So done in Paris, the 23d of February, 1893, .and have signed: The President: ALPH. DE C0UR«EL. The Special Jgent for Ike United States: WILLIAM WILLIAMS. The Aycnl for Great Britain: CHARLES H. TUPPER. The Secretary : H. FEER. Translation certified to be accurate: A. Bailly-Blanchard, ) H. CUNYNGHAME, Co-Secretaries. PROTOCOL n. MEETING OF MARCH 23, 1893. The Tribunal assembled at Paris, as had been agreed, at the French Ministry for Foreign Affairs. There were present the seven members of the Tribunal of Arbitration: The Honorable John M. Harlan, Justice of the Supreme Court of the United States, And the Honorable John T. Morgan, Senator of the United States, the arbitrators named by the United States; His Excellency the Barou Alphonse de Courcel, Senator of France, the arbitrator named by France; The Right Honorable Lord Hannen, Lord of Appeal, And Sir John Thompson, Minister of Justice for the Dominion of Canada, the arbitrators named by Great Britain; His Excellency the Marqnis E. Visconti Venosta, Seuator of Italy, the arbitrator named by Italy; PROTOCOLS. 15 And His Excellency Mr. Gregers Gram, the arbitrator named by Sweden and Norway; The Honorable John W. Foster and the Honorable Charles H. Tupper, Minister of Marine and Fisheries for the Dominion of Canada, were present at the meeting as agents for the Governments of the United States and Great Britain. The members of the Tribunal of Arbitration assured themselves that their respective powers were in due and valid form. Lord Hannen, one of the arbitrators named by Great Britain, rose to propose that His Excellency the Baron de Courcel, the arbitrator named by France, should be requested by his colleagues to assume the presidency of the Tribunal. The Honorable John M. Harlan, one of the arbitrators named by tiie United States, supported the proposal of Lord Hannen. The other members of the Tribunal of Arbitration having agreed to the proposal, Baron de Courcel took the chair as president and delivered the following address: Gentlemen: Tou have been pleased to exercise in my favor that courteous usage which, in proceedings of an international character, confers the presidency upon the representative of the country in which the meeting is held. The Governments of Great Britain and the United States of America have determined to end the long-standing dispute concerning the Bering fisheries by a friendly arbitration, and in choosing Paris for the seat of it they have paid a distinguished compliment to France and to her capital city. I venture to say that both are worthy of it. Nowhere, be sure, would you have found yourselves surrounded by a more sincere and warm sympathy with the great and good work which you are charged to carry out. Through all the shocks and trials which the hard necessity of events inflicts upon mankind France has remained steadfast to ideals. Every generous conception moves and captivates her. She has a passion for the cause of human ^progress. And what aim can be more ideal, what progress more noble and worthy of attainment than the gradual disappearance from among the people of the earth of a recourse to brute force. This is the aim of procedure by arbitration, and each new recourse to it brings us nearer to that end by furnishing another proof of the actual possibility of that which, even yesterday, seemed but a dream. Some years ago, by the peaceful authority of a decision which two proud.and powerful nations had previously agreed to accept, the arbitrators assembled at Geneva put a happy end to a dispute which it seemed at one time could only terminate in war. The Geneva arbitration was an epoch in international relations. It may be said to have revived the old law of nations, and opened to it a new eta with a boundless prospect of beneficent consequences, 16 PROTOCOLS. The two nations which submitted to the Geneva verdict, in spite of the sacrifices which at first it seemed to involve, have evidently not in the long run repented of their appeal to moral force, for to-day they renew that appeal by common consent, in analogous circumstances. It is true that the cause that is to be pleaded before us is not one which apparently would let loose the scourge of war, but short of war how many evils are caused to nations by lasting coldness and by the persistence of bitter sentiments. Like individuals, nations owe a duty to charity, and when yielding to pride they fail to obey the laws of Providence they inflict upon themselves many sufferings. If arbitrations had no other effect than to preserve them from this peril, they would be an incalculable blessing and service to the brotherhood of humanity. Your presence in this room, gentlemen, is the most eloquent evidence of the value which attaches to your expected decision. England, from all time so rich in eminent jurists, America and Canada, who hand down in their turn and in a new world a tradition whose ancestral origin may, perhaps, be sought in our old Norman soil, have delegated men whose knowledge and rare penetration Wave been applied in the highest and most delicate functions in the magistracy, or in the discussions of political assemblies whose prudence was renowned. Beside them I see a politician, a wise heir of the illustrious Cavour, whose premature and voluntary retreat from European diplomacy has been the subject of deep regret. Another of our colleagues from North Scandinavia, whose reputation has preceded him, has occupied one of the highest positions which could be conferred upon him by the just confidence of the sovereign of two twin kingdoms, each equally jealous of its individuality, At your bar, to represent the two great powers who have confided their cause to you, appear politicians of the first order. One of them only lately guided the foreign relations of the great American Republic. They are assisted by counsel accustomed to occupy the fron t rank, either at the bar or in the government of their country, and whom the admiration of their countrymen on each side of the Atlantic hails as princes of eloquence. It is an honor sufficient to dignify an entire life to be asked to sit with men like these, and the responsibility of presiding among them would be overwhelming if he whom his colleagues have charged with this duty could not count on their unvarying and indulgent support, May divine Providence, on whom depends all human action, give us the strength and inspire us with the wisdom necessary to fulfill our difficult mission, and thus to advance a stage nearer to the realization of the words of consolation and hope of Him who has said " Blessed are the peacemakers, for they shall inherit the earth,"- PROTOCOLS. 17 Gentlemen, I trust that I represent your wishes in proposing to you I to break tip our present meeting, in order to convey our respects to the President of the French Republic, together with an expression of our gratitude for the hospitality which we are receiving from France. On the proposal of the president, Mr. A. Imbert, a minister plenipotentiary of France, was named secretary to the Tribunal of Arbitration. Baron de Courcel then invited the English and American arbitrators to name for their respective nationalities a secretary to be associated with the secretary of the Tribunal. It was agreed that this appointment should be made at the next meeting. The Tribunal fixed the days and hours of its meetings. In conformity with the stipulations of the treaty of Washington of the 29th of February, 1892, the agents of the Governments of the United States and Great Britain laid before the Tribunal the printed . arguments of their respective Governments. The agent of the United States having intimated that, owing to an oversight in printing, there was an omission in the appeudices of authorities cited in the argument of the United States, he was authorized to present at a later date, as an appendix to the argument, a supplement containing the citations omitted, with the reserve of the right on the part of the British Government to present a reply to the citations should they deem it to be necessary. The agents of the respective Governments stated that they had agreed to arrange for taking shorthand reports of the daily proceedings. It was announced that the proceedings were now public, and admission to the discussions would be upon the presentation of cards of admission, to be issued by the secretary of the Tribunal. The Tribunal of Arbitration adjourned till the 4th of April next. Done at Paris, the 23d of March, 1893, and signed: The President. Tlie Agent for the.United States. The Agent for Great Britain: The Secretary Translation certified to be accurate: A. Bailly-Blanohard. ) Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. H. Cunynghame, b s—vol i 2 Co-Secretaries. 18 PROTOCOLS. PROTOCOL III. MEETING OF TUESDAY, APRIL 4, 1893. At 11.45 the Tribunal assembled, all the arbitrators being present. The president announced that the Tribunal had decided to appoint Mr. A. Bailly-Blanchard and Mr. Cunynghame as co-secretaires with M. Imbert. Also, M. le Chevalier Bajnotti, M. Henri Feer, and M. le Vicomte de Manneville as assistant secretaries. The president announced that the Tribunal was ready to hear any motion by either of the parties. Sir Charles Russell then spoke, and at the close of his speech he submitted the following motion: That tlie agent of the United States be called upon to produce the original or a certified copy of the report made by Henry W. Elliott on the subject of fur seals pursuant to act of Congress of 1890. Sir Richard Webster supported the motion. The Honorable E. J. Phelps replied, and submitted the following answer to the motion: The United States Government denies that Her Britannic Majesty's Government is entitled under the provisions of the treaty to any order by the Tribunal for the production of the document specified in the motion, as a matter of right. The United States Government, however, is willing to waive (so far as it is concerned) its right of objection, and to furnish to the agent of Her Majesty's Government a copy of the document referred to, for such use as evidence as the Tribuual may deem proper to allow; Not conceding, however, in so doing that either party at this or any subsequent stage of the proceedings has a right to introduce any further evidence whatever, upon any subject whatever connected with the controversy. And further stipulating that if the document referred to in this motion shall be used in evidence at all it shall be open to the use of both parties equally in all its points. Mr. James C. Carter followed in support of the answer. The court adjourned for a short'time. On reassembling, the president said: The Tribunal directs that the above-named document be regarded as before the Tribunal, to be made such use of as the Tribunal thinks fit. The agent for the United States then read the following motions: 1". The agent of theUnited States desires to bring to the attention of the Tribunal of Arbitration the fact that he lias been informed by the agent of Her Britannic Majesty, in a note dated March 25 ultimo, that he has sent to each of the members of the Tribunal copies in duplicate of a "Supplementary Report of the British Commissioners Appointed to Inraire into Seal Life in Bering Sea." The agent of the United States, in view of this information, moves this Honorable Tribunal that the document referred to be dismissed from consideration and be returned to Her Majesty's agent, on the ground that it is submitted at a time and in a manner not allowed by the treaty. 2"d. The agent of the United States moves this Honorable Tribunal to dismiss from the arbitration so much of ^^^^^Sef %b© Government of Groat Britain as relates PROTOCOLS. 19 to the sum stated upon page 315 of the Counter Case of said Government to have been .incurred on account of expenses in connection with proceedings before the Supremo Court of the Unitod States; And, also, to dismiss from the arbitration the claim and request of the same Government, mentioned on said page 315, that the arbitrators find what catch or catches might have been taken by pelagic sealers in Bering Sea without undue diminution of the seal herd during the pendency of this Arbitration; And, further, to dismiss from the Arbitration the claim of the same Government, mentioned on the said page 315, to show payments by it to the Canadian owners of sealing vessels; And that all proofs or evidence -relating to the foregoing claims or matters, or either of them, be stricken from the British Counter Case, and in particular those found on pages 215 to 229, inclusive, of Volume II of the Appendix to said Counter Case. The ground of the foregoing motion or motions is that the claims and matters aforesaid are, and each of them is, presented for the first time in the Counter Case of the Government of Great Britain, and that they are not, nor is either of them, pertinent or relevant by way of reply to the Case of the United States or to anything contained therein, except so far as the same may tend to support claims for damages distinctly made in the original case of the Government of Great Britain, and that so far as they come under that head the matters are irregular as being cumulative only. The president having remarked that the motions should be considered separately and that the discussion upon the second motion brought forward by the United States should be postponed to a subsequent period of the proceedings, the Honorable E. J. Phelps addressed the court in support of the first motion relative to the supplementary report of the British Commissioners. At 4~gk m.the Tribunal adjourned to the next day at 11.30. Done at Paris, the 4th of April, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent fev Ch'eat Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. BAILLX-BLANCHARD, ) ~ a„„..w„„.,;„„ " > Co-Secretaries. H. Cunynghame, ) PROTOCOL IV. MEETING OF WEDNESDAY, APRIL 5, 1S93. At 11.45 a. m. the Tribunal assembled, all the arbitrators being present. The Honorable E. J. Phelps continued his speech of the previous day and concluded his argument. Mr. James C. Carter announced that he had no additional remarks to offer. 20 PROTOCOLS. Sir Charles Russell opposed the motion under discussion on the following grounds: That the supplementary report of the British Commissioners, dated the 31st January, 1893, is presented solely with reference to the question of regulations, and, under the provisions of the Treaty of Arbitration of February 29, 18U2, is properly presented to the Tribunal, and so should be considered by them in the event of their being called upon to determine, pursuant to Article VII, what, if any, concurrent regulations are necessary. The Tribunal adjourned for a short time. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30. So done at Paris, the 5th of April, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) /7„ ct„„,.„-»„„.,;„„ ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL V. •MEETING OF THURSDAY, APRIL 6, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his speech of the x>revious day and concluded his argument. Sir Richard Webster said that he had nothing to add to Sir Charles Russell's remarks. Mr. James C. Carter replied in support of the motion made on behalf of the United .States. At 1.30 the Tribunal adjourned for a short time. On reassembling, Mr. James C. Carter continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 6th of April, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME. Co-Secretaries. PROTOCOLS. 21 PROTOCOL VI. MEETING OF FREDA! assembled at 11.40 a. m April 7, 1893. all the arbitrators being The Tribunal , present. The Honorable E. J. Phelps called the attention of the Tribunal to certain errors in the shorthand notes. The president stated that the only official minutes which were specially under the authority of the Tribunal were the protocols; the responsibility of the shorthand notes rested exclusively with the agents of the two Governments. Mr. James 0. Carter then continued his argument on behalf of the United States. At 1.30 the Tribunal adjourned for a short time. On reassembling, Mr. Carter continued and concluded his argument. The counsel on both sides then exchanged, with the sanction of the president, some supplementary explanations on points relevant to the arguments which had previously taken place. The Honorble E. J. Phelps having afterwards applied to have the second motion considered, the Tribunal declared that it would announce its intentions on this subject at the next meeting. At 3.50 p. m. the Tribunal adjourned to Tuesday for a private meeting, the x>ublic meeting being postponed to Wednesday, April 12,1893. Done at Paris, the-7th of April, 1893, and signed: The President: The Agent for the United States : The Agent for Great Britain: The Secretary: Translation certified to be accurate: A. Bailly-Blanc'iiard, ) n a * ■ jews ' > Co-Secretaries. H. CUNYNGHAME, ) Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. PROTOCOL VIT. MEETING OF "WEDNESDAY, APRIL 12, 1893. The Tribunal assembled at 11.40 a. m., all the arbitrators being present. The president then read the decision of the Tribunal with reference to the " Supplementary Report of the British Bering Sea Commissioners, " dated January 31,1893, the admissibility of which was the subject of the debates which took place at the previous meetings. The terms of this decision are as follows: It is ordered that the document entitled a " Supplementary Report of the British Bering Sea Commissioners," dated January 31st, 1893, and signed by George Baden 22 PROTOCOLS. Powell and George M. Dawson, and delivered to the individual arbitrators by the agent of Her Britannic Majesty on the 25th day of March, 1893. and which contains a criticism of, or argument upon, the evidence in the documents and papers previously delivered to the arbitrators, be not now received, with liberty, however, reserved to counsel to adopt such document, dated January 31st, 1893, as part of their oral argument if they deem proper. The question as to the admissibility of the documents, or any of them, constituting the appendices attached to said document of January 31st, 1893, is reserved for further consideration, without prejudice to the right of couusel on either side to discuss that question, or the contents of the appendices, in the course of the oral arguments. The president then read a second decision of the Tribunal. This decision, which relates to the application of the Honorable E. J. Phelps, presented at the close of the preceding meeting, and having reference to the consideration of the second motion of the United States, is worded in these terms: It is ordered that the argument and consideration of the motion made by the United States of America, on the 4th day of April, 1893, to strike out certain parts of the counter case and proofs of the Government of Great Britain, be postponed until such time as may be hereafter indicated by the Tribunal. The president then expressed the desire of the Tribunal not to spend time in discussions on procedure, but to enter as soon as possible upon the main question. He accordingly invited the counsel.to address themselves immediately to the matter at issue. Sir Charles Russell indicated the order in which it had been agreed the counsel would present their arguments, and his statement was confirmed by Mr. James C. Carter. The president declared that the Tribunal would approve of the mode of proceeding agreed upon by the counsel, but he requested them to be kind enough, as far as possible, in the arrangement of their arguments, to keep separate the discussion on the matters relating to right and those relating to the regulations which might eventually be proposed. Mr. James C. Carter, after thanking France for her hospitable reception, began his argument in behalf of the United States. At 1.30 the Tribunal adjourned for a short time. On reassembling, Mr. James C. Carter continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30. Done at Paris, the 12th of April, 1893, and signed: The President The Agent for the United States '/lie Agent for Great Britain The Secretary Translation certified to be accurate: A. Bailly-Blanchard, ) „ „ , . „ „ . ' > Vo-secretaries. H. CUNYNGHAME, ) Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. PROTOCOLS. 23 PROTOCOL VIII. MEETING OF THURSDAY, APRIL 13, 1893. The Tribunal assembled at 11.40 a. m., all the arbitrators beiuf present. Mr. James C. Carter resumed his argument. At 1.30 the Tribunal adjourned for a short time. On reassembling, Mr. James C. Carter continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 13th of April, 1893, and signed: The President: ALPH. DE COURCEL, The Agent for the United Slates: JOHN W. FOSTER, The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n 0 * •„„ ,_, „ ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL IX. MEETING OF FRIDAY, APRIL 14, 1893. The Tribunal assembled at 11.40 a. m., all the arbitrators being present. Mr. James O. Carter resumed his argument. At 1 o'clock the Tribunal adjourned for a short time. On reassembling, Mr. James C. Carter continued his argument. At 4 p. m. the Tribunal adjourned to Tuesday, April 18, at 11.30 a. m. Done at Paris, the 14th of April, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. ' 27(6 Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ 0 . ■ „ „' ' } Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL 2. MEETING OF TUESDAY, APRIL 18, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The president, at the opening of the meeting, referring to a few remarks which he had made at the end of the preceding sitting, 24 PROTOCOLS announced that, if in the course of the arguments, the arbitrators were led to make observations or to address questions to counsel, these observations or questions must not be considered as expressing any opinion on the part of the arbritrator who makes them, and still less as binding the country to which he belongs. They are simply, so far as the Tribunal is concerned, the means of obtaining from the representatives of the parties a more complete elucidation of the points under discussion. Upon the invitation of the president, Mr. James C. Carter then continued his argument. At 1.30 the Tribunal took a recess. On the reassembling of the Tribunal, Mr. Carter resumed his argument. At 4 p. in. the Tribunal adjourned to the next day at 11.30 a. m. ~ Done at Paris, the 18th of April, 1893, and signed: The President The Agent for the United States. The Agent for Great Britain The President. Translation certified to be accurate: Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. A. Bailly-Blanchard, ) H. CUNYNGHAME, [ Go-Secretaries. PROTOCOL XL MEETING OF WEDNESDAY, APRIL 19, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present, Mr. James C. Carter resumed his argument. At 1.30 the Tribunal took a recess. On the reassembling, Mr. Carter continued his argument. At 4 p. m. the Tribunal adjourned till the next day at 11.30 a. m. Done at Paris, the 19th of April, 1893, and signed: The President: ALPH. DE COURCEL. Tlie Agent for the United Slates: JOHN W. FOSTER. The'Agent for Great Britain: CHARLES' H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME, > Co-Sec. ecretaries. PROTOCOLS. 25 PROTOCOL XE MEETING OF THURSDAY, APRIL 20, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The agent for the United States caused to be delivered to the Tribunal a collection of "Citations from the writings of jurists and economists, as an appendix to the argument of the United States." Mr. James 0. Carter resumed his argument of the preceding day. At 1.30 the Tribunal took a recess. On reassembling, Mr. Carter continued his argument. At 4 p. in. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 20th of April, 1893, and signed: Thi President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. T UPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) H. CUNYNGHAME, ) Co-Secretaries. PROTOCOL XTII. MEETING OF FRIDAY, APRIL 21, 1893. Tin1 Tribunal assembled at 11.30, all the arbitrators being present. Mr. James C. Carter resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Mr. Carter continued his argument. At 4 p. m. the Tribunal adjourned till Tuesday, April 25th, at 11.30. Done at Paris, the 21st of April, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified €o be accurate: A. Bailly-Blanchard, ) E. CUNYNGHAME, ) Co-Secretaries. PROTOCOL XTV. MEETING OF TUESDAY, APRIL 25, 1S93. The Tribunal assembled at 11.30 a. in., all the arbitrators being present with the exception of Lord Hannen, confined to his house by illness. 26 PROTOCOL'S. Sir Richard Webster rose and stated that any decision of the Tribunal as to a suspension of its labors during the time necessary to insure the complete recovery of Lord Hannen would be in accordance with the wishes of the counsel of the British Government. The Honorable E. J. Phelps expressed himself to the same effect in the name of the counsel of the Government of the United States. The president then announced that the Tribunal had decided to adjourn until Tuesday, May 2nd, at 11.30 a. m. Done at Paris, the 25th of April, 1893, and signed: The President The Agent for the United States The Agent for Great Britain. The Secretary Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME, Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. Co-Secretaries. PROTOCOL XV. MEETING OF TUESDAY, MAY 2, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. James C. Carter resumed and concluded his argument on the matters relating to right. As he was proceeding to deal with the question of regulations, Sir Charles Russell observed that the counsel of Great Britain would in the discussion keep absolutely separate matters relating to right and those relating to regulations. The president recalled the fact that the Tribunal had decided, without prejudging the question of right, to give to counsel on each side, who had agreed upon this point, full liberty to arrange their arguments in snch manner as they thought most convenient, but always, as far as possible, so as to keep the questions of right distinct from the regulations, and added that the Tribunal took note that both parties had decided to defer to this desire. At 1.30 the Tribunal took a recess. On reassembling, Mr. Carter finished his argument. At 3.30 p. m. the Tribunal adjourned till the next day at 11.30 a. m. Done at Paris, the 2nd of May, 1893, and signed: The President The Agent for the United St-ates Tlie Agent for Great Britain The Secretary Translation certified to be accurate: A. Bailly-Blanchard H. CUNYNGHAME, Alph. de Courcel. John W. Foster. Charles H. Tupper. A. Imbert. ' > Co-Secretaries. protocols. 27 PROTOCOL XVI. MEETING OF WEDNESDAY, MAY 3, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable John W. Foster announced that in a very short time he expected to be able to deliver to the members of the Tribunal a shorthand report, revised and corrected, of Mr. James O. Carter's argument, as concluded the previous day. Upon the invitation of the president, Mr. Frederick' R. Coudert then began his argument. At 1.30 the Tribunal took a recess. On reassembbng, Mr, Coudert continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 3rd of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Stales: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ 0 . ■ ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XVII. MEETING OF THURSDAY, MAY 4, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. Frederick R. Coudert resumed his argument of the preceding day. At 1.30 the Tribunal took a recess. On reassembling, Mr. Coudert continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 4th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. BaiLLy-Blanchard, ) nn J§BHHB ' > Co-Secretaries. H. CUNYNGHAME, ) 28 PROTOCOLS. PROTOCOL XVIII. MEETING OF FRIDAY, MAY 5, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. Frederick R. Coudert resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Mr. Coudert continued his argument. At 4 p. m. the Tribunal adjourned until Tuesday, May 9th, at 11.C0 a.m. Done at Paris, the 5th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME, ' > Co-Secretaries. PROTOCOL XIX. MEETING OF TUESDAY, MAY 9, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. Frederick R. Coudert resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Mr. Coudert concluded his argument. The Honorable Edward J. Phelps rose to inform the Tribunal, before the counsel of Great Britain commenced their argument, that in his reply he would rely upon all the authorities and points referred to between pages 130 and 190 of the printed argument of the United States. The president said that the Tribunal would take note of the Honorable Edward J. Phelps's declaration. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 9th of May, 1893, and signed: The PresidentJ ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ a . . „ „ ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOLS. 29 PROTOCOL XX. MEETING OF WEDNESDAY, MAY 10, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The agent of the United States caused to be delivered to the members of the Tribunal a shorthand report, revised and corrected, of Mr. James C. Carter's argument. Upon the invitation of the president, Sir Charles Russell began his argument for Great Britain. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 10th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n „ , . „ „ ' > Co-Secretaries. H. CUNYNGHAME, PROTOCOL XXI. MEETING OF THURSDAY, MAY 11, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell, in continuing his argument, announced that on a future day he would rubmit on the part of Great Britain a list of the findings of facts which the Tribunal was requested to make under Section VIII of the Treaty of Arbitration. The president remarked that these questions would be considered by the Tribunal, with full liberty for Sir Charles Russell to deal with the matter as he thought proper. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. The Tribunal adjourned at 4 p. m. till 11.30 the next day. Done at Paris, the 11th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) 0o_SeeretaHes. H. CUNYNGHAME, ) 30 PROTOCOLS. PROTOCOL XXII. MEETING OF FRIDAY, MAY 12, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being- present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned until Tuesday, May 16, at 11.30 a. m. Done at Paris, the 12th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME, ' > Go-Secretaries. PROTOCOL XXIII. MEETING OF TUESDAY, MAY 10, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators bcinj present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned til! 11.30 a. m. the next day. Done at Paris, the 16th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TOPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) .-, „ I . „ „ ' / Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XXIV. MEETING OF WEDNESDAY, MAY 17, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his argument. At 1,30 the Tribunal took a recess. PROTOCOLS. 31 On reassembling, Sir Charles Russell continued his argument. At 3.40 p. m. the Tribunal adjourned until Tuesday, May 23rd, 1893, at 11.30 a, m. Done at Paris, the 17th of May, 1893, and signed: The President: ASPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n „ , . | „ _. ' } Co-Secretaries. H. CUNYNGHAME, PROTOCOL XXV. MEETING OF TUESDAY, MAY 23, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators boinj present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 23rd of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate-. A. Bailly-Blanchard, ) „ a j • „ _ ' > Co-Secretaries. H. CUNYNGHAME, PROTOCOL XXVI. MEETING OF WEDNESDAY, MAY 24, 1S93. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. 32 PROTOCOLS. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. ra. Done at Paris, the 24th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ „ . • „ as ' > Co-Secretaries. H. CUNYNGHAME, J PROTOCOL XXVII. MEETING OF THURSDAY, MAY 25, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 25th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: The Agent for Gi'eat Britain: The Secretary: Translation certified to be accurate: A. Bailly-Blanchard, > „ „ . . js-^-ii ' > Co-Secretaries. H. CUNYNGHAME, ) John W. Foster. Charles H. Tupper. A. Imbert. PROTOCOL XXVIII. MEETING OF FRIDAY, MAY 26, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned until Tuesday, May 30th, at 11.30 a. m. Done at Paris, the 26th of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. ■ The Secretary: A. IMBERT, Translation certified to be accurate: A. Bailly-Blanchard, ) H. CUNYNGHAME, Co- Secretaries. PROTOCOLS. 33 PROTOCOL XXIX. MEETING OF TUESDAY, MAY 30, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators beinj present. Sir Charles Russell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 30th of May, 1893, aud signed: The President. The Agent for the United States The Agent for Great Britain. The Secretary: Translation certified, to be accurate: A. Bailly-Blanchard. H. CUNYNGHAME, Alph. de Courcel. John W. Foster. Charles. H. Tupper. A. Imbert. Co-Secretaries. PROTOCOL XXX. MEETING OF WEDNESDAY, MAY 31, 1893. The Tribunal assembled at 11.30 a. in., all the arbitrators being present. Sir Charles Russell, in continuation of his argument, presented to the Tribunal the following paper: The British Government having submitted'to the arbitrators certain questions of fact as involved in the claims for damage set forth in the schedule to. the British case, pages 1 to 60, inclusive, ask for the following findings thereon, namely: 1. That the several searches and seizures, whether of ships or goods, and the several arrests of masters and crews, respectively, mentioned in the said schedule, were made by the authority of the United States Government. 2. That they were made in non-territorial waters. 3. That the several searches, seizures, condemnations, and confiscations, whether of ships or goods, and the several arrests, fines, and imprisonments, were for alleged breaches of municipal laws of the United States, which alleged breaches were wholly committed on the high seas outside the territorial waters of the United States. 4. That the several orders mentioned in the said schedule, whereby ships were prevented from pursuing their voyages, were given on the high seas outside territorial waters, under the authority of the United States Government and in execution of the municipal laws of the United States; and b s—VOL I 3 PROTOCOLS. That the said several searches, seizures, condemnations, confiscations, fines, imprisonments, and orders were not made, imposed, or given under any claim or assertion of right or jurisdiction, except such as is submitted to the decision of the arbitrators by the questions in Article VI of the Treaty of Arbitration. Sir Charles Russell further announced that Great Britain would not ask the Tribunal for any finding for damages upon and under article 5 of the convention or modus vivendi of April 18,1892. The Honorable Edward J. Phelps announced that the United States would not, on its behalf, ask the Tribunal for any finding for damages upon and under article 5 of the convention or modus vivendi of April Sir Charles Russell then concluded his argument. Sir Richard Webster then commenced his argument on behalf of Great Britain. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 31st of May, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent foi- Great Britain: CHARLES H. TUPPER. Tlie Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) CUNYNGHAME, Co-Secretaries. PROTOCOL XXXI. MEETING OF THURSDAY, JUNE 1, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Richard Webster resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 1st of Jun'e, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: J-OHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. BatllV-Blanchard, ) ,-, „ , . „. _ ■ > to-Secretaries. H. CUNYNGHAME, ) PROTOCOLS. 35 PROTOCOL XXXII. MEETING OF FRIDAY, JUNE 2, 1893. The Tribunal assembled at 11.30, all the arbitrators being present. Sir Richard Webster resinned his argument, ^.t 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. I At 4 p. m. the Tribunal adjourned until Tuesday, June 6th, at 11.30 a. in. Done at Paris, the 2nd of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified tp bo accurate: A. Bailly-Blanchard, ) H. CUNYNGHAME Co-Secretaries. PROTOCOL XXXILL MEETING OF TUESDAY, JUNE 6, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. H. E. M. Gram, the arbitrator designated by Sweden and Norway, read the following statement: The Appendix Volume I to the United States ease gives the text of the law and regulations relating to the protection of whales on the coast of Finnm&rken. It was my intention later on to explain to my colleagues these laws and regulations in supplying some information about tho natural conditions of Norway and Sweden which have necessitated the establishment of special rules concerning the territorial waters, aud to state at the same time my opinion as to whether those rules'and their subject-matter may be considered as having any bearing upon the present case. As, liowover, in the latest sittings reference has repeatedly been made to the Norwegian legislation concerning this matter, I think it might be of some use at the present juncture to give a very brief relation of the leading features of those rules. The peculiarity of the Norwegian law quoted by the oounsel for the United States consists in its providing for a close season for the whaling. As to its stipulations about inner and territorial waters, such stipulations are simply applications to a special cose of the general principles laid down in the Norwegian legislation con- corning the gulfs and the waters washing the coasts. A glance on the map will be sufficient to show the great number of gulfs or fiords and their importance for the inhabitants of Norway. Some of these fiords have a considerable development, stretching themselves far into the country and being at their mouth very wide. Nevertheless, they have been from time immemorial considered as inner waters, and this principle has always been maintained, oven as against foreign subjects. More than twenty years ago a foreign Government once complained that a vessel of their nationality had been prevented from fishing in one of the largest fiords of 36 PROTOCOLS. Norway, in the northern part of the country. The fishing carried on in that neigh-, borhood during the first four months of every year is of extraordinary importance to the country, some 30,000 people gathering there from south and north, in order to earn their living. A Government inspection controls the fishing going on in the waters of the fiord, sheltered by a ran-je of islands against the violence of the sea. The appearance in the33 waters of a foreign vessel pretending to take its share of the fishing was an unheard, of occurrence, and in the ensuing diplomatic correspondence the exclusive right of Norwegian subjects to this industry was energeti tally insisted upon as founded in immemorial practice. Besides, Norway and Sweden have never recognized the three miles limit as the confines of their territorial waters. They have neither concluded nor acceded to any j treaty consecrating that rule. By their municipal laws the limit has generally been fixed at 1 geographical mile, or one-fifteenth part of a degree of latitude, or 4 marine miles, no narrower limit having ever been adopted. In i'act, in regard to this question of the fishing rights, so important to both of the United Kingdoms, the said limits have in many instances been found to be even too narrow. As to this question and others therewith connected, I beg to refer to the communications presented by the Norwegian and Swedish members in the sittings of the Institut de Droit International in 1891 and 1892. I wish also to refer, concerning the subject which I have now very briefly treated, to the proceedings of the conference of Hague, in 1882 (Martens. Noueeau, Recueil general, IP serie, Volume IX), containing tho reasons why Sweden and Norway have not adhered to the treaty of Hague. The president requested that counsel on both sides would bear in mind the observations of H. E. M. Gram, in case they found it necessary to cite the example of the waters of Norway, but thought it his duty to remind them that the question of the definition of territorial waters was not submitted to the arbitrators, and that it was not tho intention of the Tribunal to express any opinion with respect to that definition. Sir Richard Webster then resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, .Sir Richard Webster continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 0th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, } H. CUNYNGHAME. $ Co-Secretaries. PROTOCOL XXXIV. MEETING OF WEDNESDAY, JUNE 7, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators bein present. Sir Richard Webster resumed and concluded his argument. Mr. Christopher Robinson then began his argument. PROTOCOLS. 37 At 1.30 the Tribunal took a recess. On reassembling, Mr. Robinson continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11 o'clock. Done at Paris, the 7th of June, 1893, and signed: The President: ALPH. DE COURCEL. T7ic Agent for the United Slates: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n 0 . ■ _ _ ' > Go-Secretaries. H. CUNYNGHAME, ) PROTOCOL XXXV. MEETING OF THURSDAY, JUNE 8, 1893. The Tribunal assembled in the council chamber at 11 o'clock, all the arbitrators being present. The public sitting commenced at 12 noon. Mr. Christopher Robinson continued and finished his address. The United States agent then read the following statement: The Government of the United States, in the event that the determination of the High Tribunal of certain questions described in the seventh article of the treaty as '■'the foregoing questions as to the exclusive jurisdiction of the United States" should, as mentioned in said seventh article, "leave the subject in such a condition that the concurrence of Great Britain is necessary to the establishment of regula- tionsfor the proper protection and preservation of the fur seal in, or habitually resorting to, Bering Sea," submits that the following regulations are necessary and that the same should extend over the waters hereinafter in that behalf mentioned: First. No citizen or subject of the United States or Great Britain shall in any manner kill, capture, ox pursue anywhere upon the seas, within the limits and boundaries next hereinafter prescribed for the operation of this regulation, any of the animals commonly called fnr seals. Second. The foregoing regulation shall apply to and extend over all those waters, outside the jurisdictional limits of the above-mentioned nations of the North Pacific Ocean or Bering Sea which are north of the thirty-fifth parallel of north latitude and east of the one hundred and eightieth meridian of longitude west from Greenwich: Provided, however, That it shall not apply to such pursuit and capture of said seals as may be carried on by Indians dwelling on the coasts of the territory either of Great Britain or the United States for their own personal use with spears in open canoes or boats not .transported by, or used in connection with, other vessels, and propelled wholly by paddles, and manned by not more than two men each, in the way anciently practiced by such Indians. Th ird. Any ship, vessel, boat, or other craft (other than the canoes or boats mentioned and described in the last foregoing paragraph) belonging to the citizens or subjects of either of the nations aforesaid which may be found actually engaged in the killing, pursuit, or capture of said seals, or prosecuting a voyage for that purpose with in the waters above bounded and described, may, with, her tackle, apparel, furniture, provisions, and any seal skins on board, be captured and made prize of by any public armed vessel of either of the nations aforesaid; and, in ease of any such c.-ipture, 38 PROTOCOLS. may bo taken into any port of tho nation to which the capturing vessel belongs and be condemned by proceedings in any court of competent jurisdiction, which proceedings shall be conducted so far as may be in accordance with the course and practice of courts of admiralty when sitting as prize courts. The Agent of the United States also read the following statement: Substitute proposed by the Government of the United States for findings of facts submitted by the Government of Great Britain : 1. That the several searches and seizures, whether of ships or goods, and the several arrests of masters and crews, respectively mentioned in the said schedule, wero made by the authority of the United States Government. Which and how many of the vessels mentioned in said schedule were in whole or in part the actual property of British subjects, and which and how many where in whole or in part the actual property of American subjects, is a fact not passed upou by this Tribunal. Nor is the value of said vessels or contents, oreither of them, determined. 2. That the seizures aforesaid wero made upon the sea more than ten miles from any shore. 3. That the said several searches and seizures of vessels were made by public armed vessels of the United States, the commanders of which had, the several times when they were made, from the Executive Department of the Government of the United States, instructions, a copy of one of which is annexed hereto, marked "A," and that the others were, in all substantial respects, the same; that in all the instances in which proceedings were had in the district courts of the United States resulting in condemnation, such proceedings were begun by tho filing of libels, a copy of one of which is annexed hereto, marked "B," and that Ihe libels in the other proceedings were in all substantial respects the same; that the alleged acts or offenses for which said several searches and seizures were made were in each .case done or committed upon the seas more than ten miles from any shore; and that in each case in which sentence of condemnation was had, except in those cases when the vessel was released after condemnation, the capture was adopted by the Govern ment of the United States. That the said fines and imprisonments were for alleged .breaches of the municipal laws of the United States, which alleged breaches were wholly committed upon the seas more than ten miles from any shore. 4. That the several orders.mentioned iu said schedule warning vessels to leave Bering Sea wore made by public armed vessels of the United .States, the commauders of which had, at the several times when they were given, like instructions as. mentioned in finding 3, above proposed, and that the vessels so warned were engaged in sealing or prosecuting voyages for that purpose. 5. That the said soveral searches, seizures, condemnations, confiscations, fines, imprisonments, and orders were not made, imposed, or giveu under any claim or assertion of right or jurisdiction except such as is submitted to the decision of the arbitrators by the questions in Article VI of the Treaty of Arbitration. 6. That the district courts of the United States in which any proceedings were had or taken for the purpose of condemning any vessel seized as mentioned in the schedule to the case of Great Britain, pages 1 to 60, inclusive, had all the jurisdiction and power of courts of admiralty, including the prize jurisdiction. Annex A. [See British counter case, Appendix, V< Treasury Department. Ofi !■] fice of the Secretary, Washington, April SI, 18S6. Sir: Referring to Department letter of this date, directing you to proceed with the revenue steamer Bear, under your command, to the seal islands, etc., you are hereby clothed with full power to enforce the law contained in the provisious of section 1956 of the United States Revised Statutes, and directed to seize all vessels PROTOCOLS. 39 and arrest and deliver to the proper authorities any or all persons "whom yon may detect violating the law referred to, after due notice shall have been given. Yon will also seize any liquors or firearms attempted to he introduced into the country without proper permit, under the provisions of section 1955 of the Revised Statutes, and the proclamation of the President dated 4th February, 1870. Respectfully, yours, (Signed) C. S. Fairchild, Acting Secretary, Capt. "M. A. Healy, Commanding Revenue Steamer Sear, San Francisco, California. Annex B. [See British case, Appendix, Vol. Ill, XX. S. No. 2, 3890, p. 65.] IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA. AUGUST SPECIAL TERM, 1886. To the Honorable Lafayette Dawson, Judge of said District Court: The libel of information of M. D. Ball, attorney for the United States for the District of Alaska, who prosecutes on behalf of said United States, and being present here in court in his proper person, in the name and on behalf of the said United States, against the schooner Thornton, her tackle, apparel, boats, cargo, and furniture, and against all persons intervening for their interest therein, in a cause of forfeiture, alleges and informs as follows: That Charles A. Abbey, an officer in the Revenue-Marine Service of the United States, and on special duty in the waters in the District of Alaska, heretofore, to wit, on the 1st day of August, 1886, within the limits of Alaska Territory, and in the waters thereof, and within the civil and judicial District of Alaska, to wit, within the waters of that portion of Bering Sea belonging to the said district, on waters navigable from the sea by vessel, of 10 or more tons burden, seized the ship or vessel commonly called a schooner, the Thornton, her tackle, apparel, boats, cargo, and f urniture, being the property of some person or persons to the said attorney unknown, as forfeited to the United States, for the following causes: That the said vessel or schooner was found engaged in killing fur-seal within the limits of Alaska Territory, and in the waters thereof, in violation of section 1956 of the Revised Statutes of the United States. And the said attorney saith that all and singular the premises are and were true, and within the admiralty and maritime jurisdiction of this court, and that by reason thereof, and by force of the Statutes of tho United States in such cases made and provided, the aforementioned and described schooner or vessel, being a vessel of over 20 tons burden, her tackle, apparel, boats, cargo and furniture, became and are forfeited to the use of the said United States, and that said schooner is now within the district aforesaid. Wherefore the said attorney prays ihe usual process and monition of this honorable court.issue in this behalf, and that all persons interested in the beforementioned and described schooner or vessel may be cited in general and special to answer the premises, and all due proceedings being had, that the said schooner or vessel, her tackle, apparel, boats, cargo and furniture may, for the cause aforesaid, and others appearing, be condemned by the definite sentence and decree of this honorable court as forfeited to the^pse of the said United States, according to the form of tlie statute of the said United States in such cases made and provided. (Signed) M. D. Ball, United States District Attorney for the District of Alaska. 40 PROTOCOLS. At 1.30 the Tribunal took a recess. On reassembling, Sir Cbarles Eussell began his argument on behalf of the Government of Great Britain on the question of regulations as contemplated by Article VII of the Treaty of Arbitration. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 8th of June, 1S93, and signed: The President: ALPH. DE OOURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. BAILLY-BLANCHARD, V ^^ H. CUNYNGHAME, ) ■etaries. PROTOCOL XXXVI. MEETING OF FRIDAY, JUNE 9, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles Russell resumed his argument of the previous day. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribunal adjourned until Tuesday, June 13th, at 11.30 a. m. Done at Paris, the 9th of June, 1893, and signed: Tlie President: ALPH. DE'COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) /> 0 ^ • „. 1 ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XXXVII. MEETING OF TUESDAY, JUNE 13, 1893. The Tribunal assembled at 11.30 a. ro., all the arbitrators being present. Sir Charles Russell resumed and concluded his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster began his argument on behalf of Great Britain on the question of regulations. PROTOCOLS. . 41 At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. in. Done at Paris, the 13th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be aceurate: A. Bailly-Blanchard, , Co-Secretaries. H. CUNYNGHAME, PROTOCOL XXXVIII. MEETING OF WEDNESDAY, JUNE 14, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Richard Webster resumed Ms argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 14th of June, 1893, and signed: The President: ALPH. DE COURCEL. Tlie Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ „ . . „ , ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XXXIX. MEETING OF THURSDAY, JUNE 15, 1893. The Tribunal assembled at 11.30 a. in.| all the arbitrators being present. Sir Richard Webster resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11 a. m. Done at Paris, the loth of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ; ^ ,, . . _, _ ' > Co-Secretaries. H. CUNYNGHAME, 42 PROTOCOLS. PROTOCOL XL. ' MEETING OF FRIDAY, JUNE 16, 1893. The Tribunal assembled at 11 o'clock, all the arbitrators being present. Sir Richard Webster resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster continued his argument. The president, in adjourning, announced that during the temporary absence of Mr. Gunynghame, the Tribunal authorized Mr. Henry Hannen. barrister at law, to perform his duties. At 3.30 p. m. the Tribunal adjourned until Tuesday, June 20th, at 11.30 a. m. Done at Paris, the 16th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) .-, c, , ' } Co-Secretaries. E. CUNYNGHAME, PROTOCOL XLI. MEETING OF TUESDAY, JUNE 20, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Richard Webster continued his argument. The agent of Her Britannic Majesty laid before the Tribunal a scheme of regulations worded as follows: REGULATIONS. 1. All vessels engaging in pelagic sealing shall bo required to obtain licenses at one or other of the following ports: Victoria, in the Province of British Columbia. Vancouver, in the Province of British 'Columbia. Port Townsend, in Washington Territory, in the United States. San Francisco, in the State of California, in the United States. 2. Such licenses shall only be granted to sailing vessels. 3. A zone of 20miles around the Pribilof Islands shall be established, within •which no seal hunting shall be permitted at any time. 4. A close season, from the 15th of September to the 1st of July, shall be established, during which no pelagic sealing shall be perm i I ted in Bering Sea.' 5. No rifles or nets shall be used in pelagic sealing. 6. All sealing vessels shall be required to carry a distinguishing flag. 7. The masters in charge of sealing vessels shall keep accurate logs as to the times and places of sealing, the number and sex of the seals captured, and shall enter an.abstract thereof in their official logs. 8. Licenses shall be subject to forfeiture for breach of above regulations. PROTOCOLS. 43 At 1.30 the Tribunal took a recess. On reassembling, Sir Richard Webster resumed and concluded his argument. The agent of Her Britannic Majesty then presented to the Tribunal the following paper, which, by agreement with the agent of the United States, was submitted as a substitute for the papers heretofore presented as to findings of facts: 1'INDrNGS OF FACT PROPOSED BY THIS AGENT OF GREAT BRITAIN AND AGREED TO • AS PROVED BT THE AGENT FOR THE UNITED STATES, AND SUBMITTED TO THE TRIBUNAL OF ARBITRATION FOR ITS CONSIDERATION. 1. That the several searches and seizures, whether of ships or goods, and the several arrests of masters and crews, respectively mentioned in the schedule to the . British case, pages 1 to 60, inclusive, were made by the authority of the United States Government. The questions as to the value of the said vessols or their contents, or either of them, and the question as to whether the vessels mentioned in the schedule to the British case, or any of them, wero wholly or in part the actual property of citizens of the United States, have been withdrawn from and have not been considered by the Tribunal, it being understood that it is open to the United States to raise these questions, or any of them, if they think fit, in any future negotiations as to the liability of the United States Government to pay the amounts mentioned in the schedule, to the British case. 2. That the seizures aforesaid, with the exception of the Pathfinder, seized at Neah Bay, were made in Bering Sea at the distances from shore mentioned in the schedule annexed hereto, marked "C." 3. That the said several searches and seizures of vessels were made by public armed vessels of the United States, the commanders of which had, at the several times when they were made, from the Executive Department of the Government of the United States, instructions, a copy of oue of which is annexed hereto, marked "A," and that the others were, in all substantial respects, the same: that in all the instances in which proceedings were had in the district courts of the United States resulting in condemnation, such proceedings were begun by the filing of libels, a copy of one of which is annexed hereto, marked "B," and that the libels in the other proceedings were in all substantial respects the same: that the alleged acts or offenses for which . said several searches and seizures were made were in each case done or committed in Bering Sea at the distances from shore aforesaid: and that in each case in which sentence of condemnation was passed, except in those cases when the vessels were released after condemnation, the seizure was adopted by the Government of the United States.: and in those cases in which the vessels were released the seizure was . made by the authority of the United States. That the said fines 'arid imprisonments were for alleged breaches of the municipal laws of the United States, which alleged breaches were wholly committed in Bering Sea at the distances from the shore . aforesaid. 4. That the several orders mentioned in the schedule annexed hereto and marked " C," warning vessels to leave or not to enter Bering Sea, were made by public armed vessels of the United States, the commanders of which had, at the several times when they were given, like instructions as mentioned in finding 3, above proposed, and that the vessels so warned were engaged in sealing or prosecuting voyages for that purpose, and that such action was adopted by the Government of the United States. 5. That the district courts of the United States in which any proceedings wore had or taken for the purpose of condemning any vessel seized as mentioned in the schedule to the case of Great Britain, pages 1 to 60, inclusive, had all the jurisdiction 44 PROTOCOLS. and powers of courts of admiralty, including tho prize jurisdiction, but that in each case the sentence pronounced by the court was based upon the grounds set forth in the libel. Annexes A and B. (For the text of these annexes see Protocol XXXV, Annexes A and B to the findings of fact submitted by the agent of the United States.) Annex C. The following table shows the names of the British sealing vessels seized or warned by United States revenue cruisers, 1886-90, and the approximate distance from land when seized. The distances assigned in the cases of the Garolena, Thornton, and Onward are on the authority of United States Naval Commander Abbey (see Fiftieth Congress, second session, Senate Executive Document, No. 106/ pp. 20, 30,40). The distances assigned in the cases of the Anna Beck, W. P. Sayward, Dolphin, and Grace are on the authority of Captain Shepard, U. S. R. M. (Blue Book, United States, No. 2, 1890, pp. 80-82. See Appendix, Vol. III.) Carolcna. Thornton Onward.. Favorite. Anna Beck W. P. Sayward. Dolphin Grace Alfred Adams. - Ada Triumph Juanita Pathfinder Triumph Date of seizure. Appro iniiitc distance frc id when seized. Aug Aug Aug Aug 1,1886 1,1886 2,1886 2,1886 July 2,1887 July 9„1887 July 12,1887 July 17,1887 Aug. 10,1887 Aug. 25,1887 aine position as 75 miles 70 miles 115miles •- Warned by Corwin in about i Onward. 66 miles 59 miles 40 miles 96 miles 62 miles 15 miles Aug. 4,1887 I Warned by Eush not to enter Bering Sea. July 31,1889 66 miles July 29,1889 50 miles July 11,1889 | Ordered out of Bering Sea by Hush. (?) As tc position when warned. Black Diamond July 11,1889 | 35 milos Lily Aug. 6,18891 66miles Ariel July 30,1889 Ordered out of Bering Sea by Eush. Kate Aug. 13,1889' do Minnie I July 15,1889 65 miles Pathfinder Mar. 27,1890 Seized in Neah Bay (1) United States vessel making seizure. Corwin. Corwin. Corwin. Eush. Eush. Eush. Eush. Eush. Bear. Eush. Eush. Eush. Eush. Eush. Eush. Corwin. (1} Neah Bay is in the State of Washington, and the Pathfinder was seized there on charges made' against her in Bering Sea iu the previous year. She was released two days later. Mr. Christopher Robinson then began his argument on the question of regulations. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 20th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Stales: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: Co-Secretary: A. BAILLY-BLANCHARD. Acting Co-Secretary: HENRY A. HANNEN. PROTOCOLS. 45 PROTOCOL XLII. MEETING OF WEDNESDAY, JUNE 21, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Richard Webster produced and proposed to read to the Tribunal certain documents recently presented to the Parliament of Great Britain containing correspondence between Great Britaiu and Russia on the subject of the seizure of British vessels by Russian cruisers in the Bering Sea. Mr. Carter objected to these documents being regarded as before the. Tribunal. The president, after consultation with his colleagues, announced that the Tribunal would permit the documents to be read, but reserved to itself for further consideration the question of their admissibility as evidence. Sir Richard Webster then read an extract from the documents in question. Mr. Christopher Robinson then resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Mr. Robinson continued and concluded his argument. At 3.50 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 21st of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Slates: JOHN W_ FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: Co-Secretary: A. BATLLY-BLANOHARD. Acting Co-Secretary: HENRY A. HANNEN. PROTOCOL XLIH. MEETING OF THURSDAY, JUNE 22, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps began his argument on behalf of the United States. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. 46 PROTOCOLS. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 22nd of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: Co-Secretary: A. BATLLY-BlANCHARD. Acting Co-Secretary: HENRY A. HANNEN. PROTOCOL XLIV. MEETING OF FRIDAY, JUNE 23, 189 The Tribunal assembled at 11.30 a. m., all the arbitrators being* present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. At 4 p. m. the Tribunal adjourned until Tuesday, June 27th, at 11.30 a. m. Done at Paris, the 23rd of June, 1S93, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: Co-Secretary: A. BAILLY-BLANCHARD. Acting^Co-Secretary: HENRY A. HANNEN. PROTOCOL XLV. MEETING OF TUESDAY, JUNE 27, 1893. .The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his, argument. PROTOCOLS. 47 At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. in. Done at Paris, the 27th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for tiff United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TuPPER. The Secretary: A. LttBERT. Translation certified to be accurate: Co-Secretary: A. BAILLY-BLANCHARD. Acting Co-Secretary: HENRY A. HANNEN. PROTOCOL XLVI. MEETING OF WEDNESDAY, JUNE 28, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. H. Cunynghame resumed his duties of Co-Secretary, which had been fulfilled temporarily by Mr. Henry Hannen. The Honorable Edward J. Phelps continued his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. I'helps continued his argument. At 4 p. m. the Tribunal ladjourned to the next day at 11.30 a. m. Done at Paris, the'28th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ „ , ■ „ ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XLVn. MEETING OF THURSDAY, JUNE 29, 1893. The Tribunal assembled at 11.30 a. ni., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. 48 PROTOCOLS. At 4 p. m. the Tribunal adjourned until Monday, July 3rd, at 11.30 a. m. Done at Paris, the 29th of June, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) .-. e„ ifej-.-'k ' > Co-Secretaries. H. CUNYNGHAME, 5 PROTOCOL XLVIII. MEETING OF MONDAY, JULY 3, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. At 4 p. m. the Tribunal adjourned to the. next day at 11.30 a. m. Done at Paris, the 3rd of July, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Slates: JOHN W. FOSTER. The Agent for Great Britain : CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n 0 . ■ „ ,, 7 > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL XLIX. MEETING OF TUESDAY, JULY 4, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. PROTOCOLS. 49 At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 4th of July, 1893, and signed: The-President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ a . . „ ,, ' > Go-Secretaries. H. CUNYNGHAME, ) PROTOCOL L. MEETING OF WEDNESDAY, JULY 5, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. • The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 5th of July, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Slates: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n e . ' } Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL LI. MEETING OF THURSDAY, JULY 6, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 6th of July, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPEE. J he Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, j Co.Secretaries. H. CUNYNGHAME, B S—VOL I 4 50 PROTOCOLS. PROTOCOL LII. MEETING OF FRIDAY, JULY 7, 1893. The Tribunal assembled at 11.30 a. in., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a receSs. On reassembling, the Honorable Edward J. Phelps continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 2 p. m. Done at Paris, the 7th of July, 1893, and signed: T7ie President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FoSTKR. The Agent for Great Britain: CHARLES H. TUPPER. The Secrelury: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) n 0 Ig . -"■• ■ M Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL LIII. MEETING OF SATURDAY, JULY 8, 1893. The Tribunal assembled at 2 p. m., all the arbitrators being present. The Honorable Edward J. Phelps continued and concluded his argument. Sir Charles Russell, in the name of his colleagues, thanked the members of the Tribunal for the kind attention with which they hsicL.. followed the lengthy debates. He also thanked the secretary, cos.ecre- taries, and assistant secretaries of the Tribunal, as well as the private secretaries of the arbitrators for their obliging and.useful assistance. The Honorable Edward J. Phelps indorsed the remarks of Sir Ohiirles Russell in the name of counsel for the Government of the United States. He referred, on behalf of all his colleagues, to the ability and courtesy with which the president had directed the discussions, and he renewed the expression of their gratitude for the hosrii- talily of France. The presideut thereupon announced that the Tribunal would take the case under consideration. Sir Charles Russell and the Honorable Edward J. Phelps expressed their desire that in case the Tribunal, during its deliberations, should find it necessary to obtain from counsel any further information, the request for such information and the answer thereto should be in writing. PROTOCOLS. 51 The president replied that the Tribunal would takenote of the request as far as rjossible, without however surrendering the right given it by the treaty of requiring all such information, whether oral, written, or printed, as it might deem useful. The agent of Her Britannic Majesty announced that the agent of the United States aud he would remain iu Paris at the disposition of the Tribunal. At 4 p. m. the Tribunal adjourned. Done at Paris, the 8th of July, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United Stales: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) „ 0 . . „ _, ' > Co-Secretaries. H. CUNYNGHAME, ) PROTOCOL LIV. MEETINGS FROM JULY 10 TO AUGUST 14, 1893. The Tribunal of Arbitration assembled with closed doors, all the arbitrators being present, on Monday, July 10th, 1893, and deliberated during successive meetings until Monday, August 14th, inclusive, upon the questions submitted to its decision. During these deliberations Lord Hannen presented the following motion: That the award of this Tribunal be given in the form following: Whereas by a treaty between the United States of America and Great Britain signed at Washington February 29th, 1892, the ratifications of which by the Governments of the two countries were exchanged at London on May the 7th, 1892, it was, amongst other things, agreed and concluded, that the questions which had arisen between the Government of the United States of America and the Government of Her Britanuic Majesty concerning the jurisdictional rights of the United States in the waters of Bering Sea, and concerning also the preservation of the fur-seal in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters, should be submitted to a Tribunal of Arbitration to be composed of seven arbitrators, who should be appointed in the following manner, that is to say, two should be named by the President of the United States; two should be named by Her Britannic Majesty; His Excellency the President of the French Republic should be jointly requested by the high contracting parties to mime one; His Majesty the King of Italy should 52 : PROTOCOLS. be so requested to name one; His Majesty the King of Sweden and Norway should be so requested to name one; the seven arbitrators to be so named should be jurists of distinguished reputation in their respective countries, and the selecting powers should be requested to choose, if possible, jurists who are acquainted with the English language; And whereas it was further agreed by Article II of the said treaty that the arbitrators should meet at Paris within twenty days after the delivery of the counter-case mentioned in Article IV, and should proceed impartially and carefully to examine and decide the questions which had been or should be laid before them as in the said treaty provided on the part of the Governments of the United States and of Her Britannic Majesty respectively, and that all questions considered by the Tribunal including the final decision should be determined by a majority of all the arbitrators; And whereas by Article VI of the said treaty, it was further provided as follows: In deciding tlie matters submitted to the said arbitrators, it is agreed that the following five points shall bo submitted to them in order that theii award shall embrace a distinct decision upon each of said five points, to wit: 1. What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries thorein did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Bering Sea included in the phrase Pacific Ocean as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after said treaty ? 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary in the treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that treaty ? 5. Has the United States any right, and if so what right, of protection or property in the fur-seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary 3-milo limit? And whereas by Article VII of the said treaty it was further agreed as follows: If the determination of the foregoing questions as to the exclusive jurisdiction of the United Statesshall leave the subject in such, position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur seal in or habitually resorting to the Bering Sea the arbitrators shall then determine what concurrent regulations, outside the jurisdictional limits of the respective Governments, are necessary, and over what waters such regulations should extend; The high contracting parties furthermore agree to cooperate in securing the adhesion of other powers to such regulations. And whereas by Article VIII of the said treaty, after reciting that the high contracting parties had found themselves unable to agree upon a reference which should include the question of the liability of each PROTOCOLS. 53 for the injuries alleged to have been sustained by the other or by its citizens in connection with the claims presented and urged by it, and that "they were solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions," the high contracting parties agreed that "either of them might submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon, the facts found to be the subject of further negotiation"; And whereas the President of the United States of America named the Honorable John M. Harlan, Justice of the Supreme Court of the United States, and the Honorable John T. Morgan, Senator of the United States, to be two of the said arbitrators, and Her Britannic Majesty named the Right Honorable Lord Hannen and Sir John Thompson, Minister of Justice and Attorney-General for Canada, to be two of the said arbitrators, and His Excellency the President of the French Republic named the Baron Alphonse de Courcel, Senator, Ambassador of -France, to be one of the said arbitrators, and His Majesty the King of Italy named the Marquis Emilio Visconti Venosta, former Minister of Foreign Affairs and Senator of the Kingdom of Italy, to be one of the said arbitrators, and His Majesty the King of Sweden and Norway named Mr. Gregers Gram, Minister of State, to be one of the said arbitrators ; And whereas We, the said Arbitrators, so named and appointed, having taken upon ourselves the burden of the said arbitration, and having duly met at Paris, proceeded impartially and carefully to examine and decide all the questions submitted to us, the said arbitrators, under the said treaty or laid before us as provided in the said treaty on the part of the Governments of Her Britannic Majesty and the United States, respectively: Now We, the said Arbitrators, having impartially and carefully examined the said questions, do in like manner, by this our award, decide and determine the said questions in manner following, that is to say, we decide and determine as to the five points mentioned in Article VI as to which our Award is to embrace a distinct decision npon each of them: As to the first of the said five points, We, the said Arbitrators, do decide and determine - . As to the second of the said five points, We, the said Arbitrators, do decide and determine As to the third of the said five points, We, the said Arbitrators, do decide and determine As to the fourth of the said five points, We, the said Arbitrators, do decide and determine As to the fifth of the said five points, We, the said Arbitrators, do decide and determine 54 PROTOCOLS. And whereas the aforesaid determination of the foregoing questions as to the exclusive jurisdiction of the United States mentioned in Article VI leaves the subject in such a position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Bering Sea, We, the said Arbitrators, do thereupon determine that the following concurrent regulations outside the jurisdictional limits of the respective Governments are necessary and that they should extend over the waters hereinafter mentioned: that is to say And whereas the Government of Her Britannic Majesty did submit to the Tribunal of Arbitration under Article VIII of the said treaty certain questions of fact involved in the claims referred to in the said Article VIII and did also submit to us, the said Tribunal, a statement of the said facts, as follows; that is to say We, the said Arbitrators, do decide and determine And whereas each and every question whicb has been considered by the Tribunal has been determined by a majority of all the arbitrators: Now we do declare this to be the final decision and award in writing of this Tribunal, in accordance with the treaty. Made in duplicate at Paris and signed by us the day , in the year 1893. After an exchange of views between the Arbitrators, it was agreed that the form prepared by Lord Hannen be adopted as a basis for the wording of the award. The preamble of this form having been unanimously voted, without modification, the arbitrators passed to the consideration of the five points mentioned in Article VI of the treaty of February 29th, 1892. As to the first point, relating to the rights exercised or claimed by Russia in Bering Sea, the arbitrators recognize that a distinction must be made between different periods. After some discussion as to the events which preceded the ukase of 1821, it was decided that these might be left aside as not being material to the decision of the questions submitted to the Tribunal. In consequence, Baron de Courcel presented the following project of decision: By the ukase of 1821, Russia claimed jurisdiction in tho sea now known as the Bering's Sea, to the oxtent of 100 Italian miles from the coasts :mil islands belonging to her, but, in the courso of the negotiations which led to the conclusion of the treaties of 1824 with the United States and of 1825 with Great Britain, Russia admitted that her jurisdiction in tho said sea should be restricted to the reach of cannon shot from shore, and it appears that, from that time up to tho time of the cession of Alaska to tho United States, Russia never assorted in fact or exercised any exclusive jurisdiction in Bering's Sea or any oxclusivo rights in the seal fisheries therein beyond the ordinary limit of territorial waters. This was adopted by a majority composed of Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti PROTOCOLS. 55 Venosta and Mr: Gregers Gram. Senator Morgan voted against it, reserving unto himself to propose an amendment, when the second point would have been considered. As to the second of the said five points mentioned in Article VI, the following decision was adopted by a majority composed of the Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram: Great Britain did not recognize or concede any claim, upon the part of Russia, to exclusive jurisdiction as to the seal fisheries in Bering Sea.,' outside of ordinary territorial waters. Senator Morgan voted against and presented the following motion as a substitute for the decisions as to the two first points: 1. From the time that Russia first discovered and occupied Bering Sea and the coasts and islands thereof, until she ceded a portion thereof to the United States, she claimed the seal fisheries in Bering Sea and exercised, exclusively, the right to the usufruct, and to own the product of such seal fisheries, and to protect tho same against being interfered with, in those waters, by tho people of any other country; and also the exclusive jurisdiction that was found necessary for those purposes; and, also, the exclusive jurisdiction to regulate the hunting of fur-seals in those waters; and to grant the right of hunting them, to her own subjects. 2. The attitude of Russia towards the fur-seal fisheries in Bering Sea, as described . above, being known to Great Britain, sho acquiesced in tho same without objection. This motion was negatived by all the arbitrators except Senator Morgan. As to the third of the said five points mentioned in Article VI, it was agreed that the two questions therein contained should be considered separately. On the first of these questions the following decision was unanimously adopted: The body of water now known as tho Bering Sea was included in tho phrase "Pacific Ocean" as used in tho treaty of 1825 between Great Britain and Russia. On the second of these questions the following decision was adopted by a majority composed of Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, Senator Morgan voting in the negative: No oxclusive rights of jurisdiction in Bering Sea and no exclusive rights as to seal fisheries therein, were held or exercised by Russia outside of ordinary territorial waters after tho treaty of 1825. Baron de Courcel remarked that, in adhering to the decision which had just been adopted, his intention is to state the position held by Russia in the Bering Sea only in as far as it has been presented for the consideration of the Tribunal of Arbitration by the two Governments who have constituted tho said Tribunal, and-that he by no means intends to prejudge the appreciation made by Russia herself, as that power has not been heard by the Tribunal, nor placed in such a situation as to make her views known to the same. _ 56 PROTOCOLS. As to the fourth of the said five points mentioned in Article VI, the following decision was proposed by Lord Hannen: . That all tho rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea cast of the water boundary in tho treaty between the United States and Russia of the 30th March, 1867, did pass unimpaired to the United States under the. said treaty. • This proposition was unanimously adopted. As to the fifth of the said five points mentioned in Article VI, the following decision was proposed by Lord Hannen: The United States has not any right of protection or property in'the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary 3-mile limit. This proposition was adopted by a majority, composed of Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan and Senator Morgan voted in the negative, and stated that, in their opinion, the United States owned the herd of seals which frequented the islands of the United States in Bering Sea, and were entitled to employ for their protection, when found outside the ordinary 3-mile limit, the same means that an individual mightlegallyemploy for the protection of his property. They also stated that in their opinion, independently of any right of property in the fur-seals themselves, the United States, as the owner and proprietor of the industry conducted on the Pribilof Islands, and which industry consisted in taking fur-seals on those islands for commercial purposes, had the right to protect these animals' against being taken in the open waters of Bering Sea and the North Pacific Ocean outside of territorial waters, by any method, such as pelagic sealing, which would necessarily exterminate the race. Senator Morgan thereupon submitted the following motion: I propose to amend the proposed award and decree by inserting, after the words not any, the word special, and at the end of tho proposed award and decree, the following words: "beyond the rights that all nations have under the international law, in respect of sclf-prdleclion and self-defense." So that the entire award, as to point five in Article VI of the treaty, would read as follows, viz: As to the fifth of the said points, we, beiiig a majority of the said arbitrators, do decide and determine that the United Slates has not any special right of protection or properly in the fur seals frequenting the islands of the United Stales in Bering Sea, when such seals are found outside the ordinary 3-mile limit, l/eyond the rights that all nations hare, under the international law, in respect of self-protection and self-defense. Mr. Justice Harlan and Senator Morgan voted in favor of this amendment^ stating than as their views, as above set forth, upon the question of property and protection, were not accepted by the majority, they would prefer the answer to tho fifth point to be in the words indicated by the last amendment proposed by Senator Morgan, rather than in the words approved by the majority. Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram voted against the proposed amendment. PROTOCOLS. 57 Baron de Courcel abstained from voting. In consequence the amendment proposed by Senator Morgan was rejected. Mr. Gregers Gram here expressed the desire that it be well understood that the Tribunal, in answering as it has done the foregonig questions, did not propose to decide what are, according to the principles of international law, the ordinary limits of territorial waters. The arbitrators concur that they do not feel themselves called on to decide what, according to the principles of international law, are the ordinary limits of territorial waters. Those limits have been assumed for the purposes of the award to be 3 miles from the coast, in accordance with the wording of the fifth question of Article VI of the treaty. Senator Morgan here asked that the following motion be taken into consideration: I moTse that tho Tribunal of Arbitration proceed in such order as may be proper, before a final award is made in the case, to consider and declare the rights of the citizens and subjects of either country as regards the taking of fur-seal in or resorting to tho waters of Boring Sea. This inquiry and decision includes the entire herd that resorts, habitually, in the summer and autumn, to the islands of St. Paul and St. George, in Bering Sea. The answers given to the five points stated in Article VI of the treaty do not, in my judgment, answer the question above stated, which tho treaty provides shall he submitted to tho Tribunal of Arbitration; and an award that does not specificaUy answer that question can not be "a full, perfect, and final settlement of all the questions referred to tho arbitration.*' I would proceed to point out the grounds and reasons on which I base this motion, but I am aware that, in the opinions delivered by a majority of the arbitrators, they consider either that this question is not required by the treaty to be specifically answered or that it has been answered, in effect, by a decision of a majority of the Tribunal upon the fifth point stated in Article VI of the treaty, under which the Tri- bunal is acting. This motion gave rise to a debate. Mr. Justice Harlan and Senator Morgan voted for its adoption. Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, constituting a majority of the arbitrators, considered that the answers to all the questions referred to in Article I of the said treaty are to be found in the decisions which have been rendered upon the five points mentioned in Article VI, and voted against this motion. In consequence, the motion was rejected. The arbitrators, having reached this point of their deliberations, concurred in holding that the decisions rendered by them on the questions as to the exclusive jurisdiction of the United States, mentioned in Article VI of the treaty, "leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Bering Sea." )8 PROTOCOLS. Iii consequence they decided to pass to the consideration of the concurrent regulations called for by Article VII of the treaty. Mr. Justice Harlan presented the following draft of resolution: llesoUcd, That tho purpose of Article VII of the treaty is to secure, in any and all events, tho proper protection and preservation of the herd of seals frequenting the Pribilof Ishinds; and in tho framing of regulations, under the treaty, no extent of pelagic sealing should be allowed which will seriously endanger the accomplishment of that cud. Senator Morgan and Sir. Justice Harlan voted for the adoption of this resolution. Lord Hannen and Mr. Gregers Gram declared that they abstained from voting because they found the proposition submitted to be of too abstract a character. Sir John Thompson declined to vote on the following, among other grounds: "That the treaty does not give power to the Tribunal to make the provisions which may be necessary in any awl nil events for the preservation of the seals, notably as to the preservation of the seals on their breeding grounds." Marquis Visconti Venosta voted against the proposition. He remarked that, in order to secure the preservation of the fur-seals, the regulations ought to provide a system of enactments applicable to the whole area, where, on land as well as at sea, is developed the life of the seals resorting to Bering Sea, and to be equally accepted by all nations the citizens of which might compete in pelagic sealing. Such regulations, however, would go beyond the powers of the Tribunal as defined by the treaty. The responsibility of the arbitrator-; as to the result of their labors was necessarily bounded by the limits of their mandate; they might simply prescribe such measures as they would judge consistent with the circumstances and with the decisions which they might have taken on the questions of right, and express the wish that these regulations receive their necessary complement within the limits of the territorial jurisdiction of the two conn tries, and that they become the object of an understanding with the other nations. Baron de Courcel voted against the proposition, because he looked upon if, as did Lord Hitmen and Mr. Gregers Gram, as being too abstract, and also, because in his opinion, the treaty, when it prescribed the establishment of regulations for the proper protection and preservation of the fur-seals, intended that given circumstances should be taken into account; his view was that the preservation of this species of animals should be regulated, not in the absolute interest of the species, but in the interest of the human industries of which it is the object, without the Tribunal having to distinguish between the nature of these different industries, whether they be exercised on laud or whether they be engaged upon at sea, and without it having to favor one to the detriment of the other. PROTOCOLS. 59 In consequence, the resolution offered by Mr. Justice Harlan was rejected. Mr. Justice Harlan then presented the following motion: This Tribunal has power, and it is its duty, under the treaty, to prescribe such concurrent regulations, covering the water's, outside the jurisdictional limits of the two countries, of both Bering Sea and -the North Pacific Ocean, traversed by the fur-seals in, or habitually resorting to, Bering Sea, as may be found necessary for the proper protection and preservation of such seals, even if such regulations, when sanctioned by legislation of the two Governments, should, by reason of their express provisions, or by their practical operation, result in preventing the hunting and taking of these seals during the seasons when the condition of said waters admits of fur-seals being taken by pelagic sealers. Senator Morgan and Mr. Justice Harlan voted in favor of this motion. Lord Hannen declined to vote on the ground, amongst others, that the arbitrators are not called on to vote on abstract questions apart from the facts as to which their decision is to be given. Sir John Thompson declined to vote, for the following, among other, reasons: That the views of the several arbitrators on this and other abstract questions relating to regulations have been better expressed during the deliberations of the past weeks than in the form of the present resolution. Mr. Gram abstained from voting on the ground that the resolution proposed will have for him no practical value, as his vote on regulations will not in any way be affected by such question. Marquis Visconti Venosta likewise abstained from voting. He believed that the treaty, in its Article VII, had in view the restriction and not the prohibition of the exercise of the right of pelagic sealing on the high sea. He was disposed to vote for efficacious measures in order to prevent what might be essentially destructive for the species in this fishing. But after having recognized the right, he did not feel authorized, by the interpretation of the treaty, to suppress it practically, either by an absolute prohibition or by measures which would be equivalent thereto. Baron de Courcel might agree to the principle expressed in the motion, but declined to vote upon it as being purely abstract. The motion was in consequence not adopted. The Tribunal then proceeded to the drafting of the text of the concurrent regulations which it was charged to determine by virtue of Article VII of the treaty. Mr. Justice Harlan submitted the following draft, of -which Senator Morgan expressed his approval: Article 1. No citizen or subject of the United States or Great Britain shall in any manuer kill, capture, or pursue anywhere upon the seas, within the limits and boundaries next hereinafter prescribed for the operation of this regulation, any of tho animals commonly called fur-seals. Art. 2. The foregoing regulation shall apply to and extend over aU those waters, outside the jurisdictional limits of the above-mentioned nations, of the North Pacific 60 PROTOCOLS. Ocean and Bering Sea which are north of the thirty-fifth parallel of north latitude and east of the one hundred and eightieth meridian of longitude from Greenwich. Art. 3. Every vessel or person offending against these regulations may be seized and detained by the naval or duly commissioned officers of either the United States or Great Britain, but they shall be handed over as soon as practicable to the authorities of the nation to which they respectively belong, who alone shall have jurisdiction to try the offense and impose penalties for the same. The witnesses and proof necessary to establish the offense or to disprove the same found on the vessel shall also he sent with them. Art. 4. Every person guilty of violating these regulations shall, for each offense, be fined not less than $200 nor more than $1,000, or imprisoned not more than six months, or both; and vessels, their tackle, apparel, furniture, and cargo found engaged in violating these regulations shaU be forfeited and condomned. Sir John Thompson submitted the following draft: Article 1. No sealing except by licenses, which are to be issued at two United States and two Canadian ports on the Pacific Coast. Those licenses to be granted only to sailing vessels, and not to be granted earlier than a date that would correspond with the 1st of May in the latitude of Victoria, B. C. Art. 2. Each vessel carrying such license to use a distinctive flag and to keep a* record in the official log of the number of seals killed or wounded, and the locality in which the hunting takes place, from day to day, all such entries to be filed with tho collectors of customs on the return of the vessels. Art. 3. The use of rifles and nets in seal fishing is prohibited. Art. 4. The killing of seals to be prohibited within a zone of 30 miles from the Pribilof Islands, and within a zone of 10 miles around the Aleutian Islands. Art. 5. The killing of seals to be prohibited in Bering Sea (cast of the line of demarcation adopted in the treaty of cession from Russia to the United States) before tho 1st of July and after the 1st of October in each year. Art. 6. The foregoing regulations shall be brought into force from and after a day to be agreed upon by Great Britain and the United States, ajid shall continue iu operation for .ten years from the above day; and, unless Great Britain or the United States shall, twelve months before the expiration of the said poriod of ten years, give notice of intention to terminate their operation, shall continue in force one year longer, and so on from year to year. Senator Morgan submitted the following paper: I adhere to the position taken by the United States, that pelagic sealing should be prohibited north of 35 degrees north latitude, and in order to made no interference with any question that may concern the substantial interest of Russia east of 180 degrees longitude from Greenwich. I believe that this'is the only really effective method of protecting and preserving these seals; but, if the Tribunal shall prefer the plan of protection and preservation that has for its basis a close season, I respectfully insist that the use of firearms and explosives in such hunting should be prohibited under effective penalties, as well for the necessary protection and preservation of the seals as for the protection of human life and the preservation of peace; for joint hunting, or the hunting in a common right and in the same waters, of these valuable animals will produce conflicts and bloodshed, and may rosult in international conflict once the use of firearms is sanctioned by the laws that are to be enacted by these two Governments to carry the award of the Tribunal into effect. There is no possible restraint or limit that can be placed on their destructive use; this is a doom of theseals; that is as certain as that the genius of man, in killing the seals, is almost infinitely superior to Ihe instinct of self-preservation in the seal, and to its capacity to escape the pursuit of PROTOCOLS. 61 men in boats, armed with the breech-loading double-barreled shotguns, with cylinder cartridges. Baron de Courcel, Marquis Visconti Venosta, and Mr. Gregers Gram,- having, with the assent of their colleagues, prepared a draft of concurrent regulations intended to be submitted to the Tribunal, presented, in their collective names, the draft, of which the text is as follows: Article 1. The Governments of the United States and of Great Britain shall forbid their citizens and subjects, respectively, to kill, capture, or pursue at any time, and in any manner whatever, the animals commonly called fur-seals within a zone of 60 miles around the Pribilof Islands, inclusive of the territorial waters. The miles mentioned in the preceding paragraph are geographical miles, of 60 to .a degree of latitude. Art. 2. The two Governments shall forbid their citizens and subjects, respectively, to kill, capture, or pursue, in any manner whatever, during the season extending : each year from the 15th of April to the 31st of July, both inclusive, the fur-seals on the high sea in the part of the Pacific Ocean, inclusive of the Boring Sea, which is situated to the north of tho thirty-fifth degree of north latitude. Art. 3. During the period of time and in the waters in whicli the fur-seal fishing is allowed only sailing vessels shall be permitted to carry on or take part in fur-seal j fishing operations. They will, however, be at liberty to avail themselves of the use of canoes or small boats, propelled wholly by oars. Art. 4. The sailing vessels authorized to fish for fur-seals must be provided with a special license issued for that purpose by its Government, and shall be required to ...pariy a distinguishing flag to he prescribed by its Government. Art. 5. The masters of tho Vessels engaged in fur-seal fishing shall enter accurately in their ofiicial log book the date and place of each fnr-seal fishing operation, and also the number and sex of the seals captured, upon each day. These entries shall be communicated by each of the two Governments to the other at the end of each fishing season. Art. 6. The use of nets, firearn fishing. This restriction shall nc outside of Bering Sea. Art. 7. The two Governments men authorized to engage in fur-i handle with sufficient skill the carried on. t apply =xpl< to i sives shall be forbidden in the fur-seal hot guns when such fishing takes place iiall take al fishinj eapons 1 measures to control the- fitness of the ;; these men shall have been proved fit to y means of which this fishing may be cles shall not apply to ted States or of Great from the coasts where Trained with a view to the protec- u in force untilthey have been, in n agreement between the Govern- Art. 8. Tho regulations contained in the. preceding art Indians dwelling on the coasts of tho territory of the Uu I i'rii a in. and carrying on in their canoes, at a small distance they dwell, fnr-seal fishing. Art. 9. The concurrent regulations hereby det tion and preservation of the fur-seals shall rema whole or in part, abolished or modified by couxnu ments of the United States and of Great Britain. The said concurrent regulations shall be submitted every five years to a new examination, so as to enable both interested governments to consider whether, in the light of pasfc experience, there is occasion for any modification thereof. Baron de Courcel developed, on behalf of his two colleagues and in his name, the reasons in support of the preceding draft. The Tribunal decided to take, as a basis of its deliberations upon the concurrent regulations which it was required to prepare, the wording presented collectively by Baron de Courcel, Marquis Visconti Venosta, and Mr. Gregers Gram. 62 PROTOCOLS. The arbitrators then proceeded to consider article 1 of this draft. Sir John Thompson moved, as an amendment, that the prohibited zone around the Pribilof Islands be 30 miles, including territorial waters.' This amendment was rejected by the vote of a majority, composed of Baron de Courcel, Mr. Justice Harlan, Senator Morgan, Marquis Visconti Venosta, and Mr. Gregers Gram. Lord Hannen declared that, after much hesitation, and although considering that serious reasons recommended the adoption of a zone of 30 miles, he adhered to the vote of the majority. The text of article 1 was adopted in conformity with the draft by all the arbitrators with the exception of Sir John Thompson. As to article 2, Sir John Thompson moved the following amendment: "That the date of April 15th, mentioned in the draft, be changed to May 1st," and stated at length his views in support of the amendment. Mr. Justice Harlan and Senator Morgan voted against this amendment. They concurred in stating that the proper protection and preservation of these fur seals could not be certainly secured except by a pro-" hibition of pelagic sealing in all the waters traversed by those animals north of 35° of north latitude and east of 180° of longitude from Greenwich. But as the closed time from April 15th to July 31st, in connection with other provisions, gave some hope that this race might be saved from destruction by pelagic sealing, and as that period had beeu recommended by the arbitrators from France, Italy, and Norway, they had, in the interest of conciliation only, expressed their willingness to accept the closed time proposed by Baron de Courcel, Marquis Visconti Venosta, and Mr. Gregers Gram in the original draft submitted by them. But they objected to the proposed change from April 15th to May 1st as one that would put in peril the existence of this race of animals, and tend to defeat its proper protection and preservation. The duty of the Tribunal, they said, was to prescribe such regulations as would properly protect and preserve this race, whatever effect such regulations might have upon the business of pelagic sealing. The amendment presented by Sir John Thompson was sustained by Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers Gram. Baron de Courcel declared that he seriously objected to an extension of the season open to pelagic sealing during the spring, because it was during that season that pelagic sealing, attacking pregnant females, was most destructive; nevertheless, he thought proper to vote for the amendment of Sir John Thompson in a spirit of conciliation and so as to secure in its general outlines the adoption of the draft actually submitted to the consideration of the arbitrators, and which he is not unaware imposes strict limitations upon the taking of fur seals on the high sea. In consequence, the amendment of Sir John Thompson to insert th" date of May 1st instead of that of April 15th in article 2 was adopted. PROTOCOLS. 63 Sir John Thompson then moved a si-eond amendment, worded as follows: That tlie words: From May 1st to July Slst be struck out and replaced by the words: From January 1st to July 1st. Mi'. Justice Harlan and Senator Morgan expressed themselves strongly against allowing pelagic sealing during tho month of July, and voted against the amendment. Lord Hannen abstained temporarily from expressing an opinion. Marquis Visconti Venosta found it difficult to accept the date of July 1st. In case a majority of the arbitrators adhered in principle to the amendment of Sir John Thompson, he would ask that this date be replaced by that of July 15th. It was during the month of July that the work of reproduction of the seals took p'ace, chiefly during the first fortnight of that month, during which many of the gravid females were still on the track between the passes of the Aleutian Islands and the Pribilof group. But, he said, the question of the close se'ason was, according to his view, intimately connected with that of the prohibition of the use of firearms. The establishment of a closed season, extending from January to July, meant that practically there would be no pelagic sealing outside of Bering Sea, and that the use of firearms being, according to Article VI of the project, prohibited in that sea, all pelagic sealing in future would only be allowed by means of spears or harpoons.' He had already had occasion to make known his point of view. He felt, disposed to place serious limitations upon pelagic sealing,-but he did not intend to suppress it, neither in principle nor in practice; neither openly, nor by indirect means. He did not think that the Tribunal could withdraw by the regulations all that it had conceded by its decisions on the questions of right. He did not possess sufficient information to form an opinion in regard to the practical effect of the prohibition of firearms and the exclusive use of spears and harpoons. If the prohibition in question had applied, as was proposed in the project, to one zone only of pelagic sealing, the consequences, whatever they might have been, would have affected but one portion of the fisheries; and in this way the prohibition would have been but a restriction. But if it was to be applied to all pelagic sealing, he could not foresee its consequences any longer, and under such conditions he would be compelled to reserve his vote respecting the interdiction of the use of firearms. He would feel inclined rather to examine whether, in accepting a closed season from January 1st to July 15th, in place of the said prohibition, it would noftbe suitable to decide that every three years pelagic sealing be suspended for the period of a whole year. This would be only a restriction, the consequences of which he would feel prepared to appreciate, at least by comparison. 64 PROTOCOLS. Mr. Gram thought, like Marquis Visconti Venosta, that pelagic sealing on the high sea during the month of July would attack necessarily a great number of pregnant females and would in consequence be very prejudicial. He voted against the amendment. Baron de Courcel declared that he was disposed to accept this amendment, because he considered pelagic sealing in the spring as essentially detrimental to the preservation of the species of fur seals. According to his notion the close season'for fur-seal fishing should extend until July 15th, at which time the total number of females, save some unimportant exceptions, had arrived at the Pribilof Islands to deliver their young; but he would cheerfully make the sacrifice of the fifteen first days in July to obtain the relinquishment of all pelagic sealing in the spring. The second amendment of Sir John Thompson was consequently negatived by. a majority of the arbitrators. Baron de Courcel then moved the following amendment as a compromise: That tlie words: From May 1st to July Slst be replaced by the words: From January 1st to Jnly 10th. Sir John Thompson declared that as, in his opinion, the Tribunal did not possess sufficient information to determine whether the abandonment of the right'to fur-seal fishing during the four months of winter and spring, in which it was conceded by the regulation previously adopted, w ould be sufficiently compensated by the addition of the short season formed of the three last weeks of the mouth of July, he declined to assume any responsibility in regard to this, and abstained from voting for the proposed amendment. Lord Hannen abstained for the same reasons as Sir John Thompson. The other arbitrators maintained their objections against any pelagic sealing during the month of July. In consequence the amendment was not adopted. Lord Hannen asked that the extent of waters in which fur-seal fishing would be forbidden each year during the close season, limited to the south by the thirty-fifth degree of north latitude, be likewise limited to the west by the adoption of a boundary line, in default of which Russia and Japan would be called upon to benefit gratuitously of the herd of seals frequenting their waters, by the prohibition imposed upon the subjects and citizens of Great Britain and of the United States. He moved in consequence to insert in Article 2, after the words: North of the thirty-fifth degree of north latitude, the words: and eastward of the one hundred and eightieth degree of longitude from Greenwich till it strikes the water boundary described in Article I of the treaty of 1867 between the United States and Russia, and following that line up to Bering Straits. Baron de Courcel stated that if the authors of the draft had abstaiued from indicating a western boundary as claimed by Lord Hannen, they PROTOCOLS. 65 had so acted out of regard for Russia and Japan, powers not represented before the Tribunal of Arbitration, and toward the waters of whom it appeared not equitable to drive back the English and American pelagic sealers during the whole time of the close season. Nevertheless, as far as he was concerned he did not desire to do anything which might be prejudicial to the position of Great Britain or of the United States in the negotiation which the Governments of these two countries might engage ultimately with Russia and Japan. In consequence he accepted the amendment proposed by Lord Hannen. This amendment was unanimously agreed to. The whole of article 2 of the draft, modified and completed by the two amendments which had been made to it, was voted affimatively by the Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan and Senator Morgan voted in the negative. The text of article 3 of the draft, after an exchange of views between the arbitrators, was modified in its last part. In place of the words: . Canoes or small boats propelled wholly by oars, the following words were substituted: Canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing boats. This article, as modified, was agreed to. Article 4 of the draft was unanimously agreed to in its entirety. Article 5 was also unanimously agreed to. As to article 6 it was asked that the two phrases composing it be considered and voted upon separately. The first phrase, worded as follows: The use of nets, firearms, and 'fexplosives shall be forbidden in the fur-seal fishing, was voted in the i'affirmative by Baron de Courcel, Mr. Justice Harlan, Senator Morgan, .Marquis Visconti Venosta, and Mr. Gregers Gram. Sir John Thompson voted in the negative. Lord Hannen abstained, reserving unto himself to vote on the whole article. The second phrase was worded as follows: This restriction shall not apply to shotguns when such fishing takes place outside of Bering Sea. This provision was objected to by Sir John Thompson, who opposed the.prohibition of shotguns in Bering's Sea or elsewhere; it was adopted by a majority of the arbitrators composed of Baron de Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gram. Mr. Justice Harlau and Senator Morgan abstained from voting, objecting to the use of shotguns at all or in any of the waters traversed by these fur-seals. The Tribunal decided that, in order to avoid a possible ambiguity, article 6 would be completed by the addition of the following words, to be inserted at the end of the second phrase: during the season when it may be lawfully carried on. Article 6 as a whole was voted for by a majority formed of Baron de B S—VOL i 5 66 PROTOCOLS. Courcel, Lord Hannen; Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan, Senator Morgan, and Sir John Thompson voted against it. The text of article 7 gave rise to observations from several of the arbitrators, bearing upon the practical difficulty of obtaining a strict execution of this article. Nevertheless, that article was voted for by a majority composed of all the arbitrators, with the exception of Sir John Thompson, who voted against it. As to article 8, Senator Morgan moved to strike out the whole of the said article. This motion was negatived, Mr. Justice Harlan and Senator Morgan alone voting for it. Mr. Justice Harlan expressed a desire to have the whole of article 8 stricken out, but as that could not be done, he proposed to substitute the following text in place of that of the draft: The Regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain and carrying on fur-seal 'fishing with spears or harpoons only, in canoes or undecked boats not transported by or used in connection with other vessels and propelled wholly by paddles or oars and manned by not more than two persons each in the.way anciently practiced by tho Indians, provided such Indians are not in the employment of other persons, and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur-seals outside territorial waters under contract for the delivery of the skins to any person. This exemption shall not be construed to affect the municipal law of either country, nor shall it extend to the waters of Bering Sea or the waters of the Aleutian Passes. The arbitrators unanimously decided to take as a basis for the wording of article 8 the text submitted by Mr. Justice Harlan. Sir John Thompson moved to strike out of that text the words: with spears or harpoons only. This suppression was voted by a majority composed of Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan and Senator Morgan voted against the suppression asked for, because they had the strongest objections to the use of firearms by the Indians at any time or in any waters. Sir John Thompson moved to substitute for the words: by paddles or oars, the words: by paddles, oars, or sails. The proposed amendment was adopted by the Tribunal, Mr. Justice Harlan and Senator Morgan voting in the negative. Sir John Thompson proposed to substitute for the words: manned by not more than two persons each, the words: manned by not more than five persons each. This amendment was voted by a majority formed of Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr Gregers Gram. Mr. Justice Harlan and Senator Morgan voted against it. PROTOCOLS. 67 Mr. Justice Harlan moved as a compromise to substitute for the words five persons, the words three persons. This modification, opposed by Sir John Thompson, was negatived by the same majority which had voted the amendment. Sir John Thompson moved to substitute for the words: in the way anciently practiced, the words: in the way hitherto practiced. This amendment was opposed by Mr. Justice Harlan and Senator Morgan, and was voted by a majority formed by all the other arbitrators. Sir John Thompson moved to add to the text before the Tribunal a paragraph worded as follows: Nothing herein contained is intended to interfere with the employment of Indians, as hunters, or otherwise, in connection with fur-sealing vessels as heretofore. This addition was unanimously adopted. Senator Morgan proposed to add at the end of the second paragraph of article 8, after the words: or the waters of the Aleutian Passes, the following words: Nor^hall it be operative in favor of such Indians prior to the 1st January, 1895. This proposition, supported by Senator Morgan and Mr. Justice Harlan, was negatived by a majority of the arbitrators formed of Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. As to article 9, Sir John Thompson moved to substitute for the text actually being considered by the arbitrators the text which appeared as article 6 of the draft of regulations proposed by himself and which reserved to the two Governments of Great Britain, and of the United States the right of denouncing the regulations to be established at the end of a period of ten years, and then from year to year. After deliberation, the arbitrators, other than Sir John Thompson, decided to reject this motion, and continued to the consideration of the text of article 9, presented by Baron de Courcel, Marquis Visconti Venosta, aud Mr. Gregers Gram. This text was voted by all the arbitrators, with the exception of Sir John Thompson, who voted against it. The Tribunal having thus settled the wording of each of the articles intended to appear in the regulations prepared in conformity with Article VII of the treaty of February 29, 1892, decided to proceed to vote upon the whole of the nine articles of these regulations. The whole of the regulations as amended were voted by Baron de Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers Gram. Sir John Thompson, Mr. Justice Harlan, and Senator Morgan voted against them as an entirety, although approving certain parts of them. In consequence, the whole regulations were adopted, and the Tribunal decided to incorporate the text in the award, with the following statement preceding it: 68 PROTOCOLS. And whereas the aforesaid determination exclusive jurisdiction of tho United States r ject in such a position that the concurrenc of the foregoing questions as to the rationed in Article VI leaves the snb- of Great 3ritain is necessary to the establishment of regulations for the proper protection and preservation of the fur- seal in or habitually resorting to the Bering Sea, the Tribunal having decided by a majority as to each article of the following regulations, we, the said Baron de Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers Gram, assenting to the whole of the nine articles of the f et iutsido the jurisdictional limits of the and that they should extend over the waters lowing regulations, and being a majority mine in the modo provided by the treaty, of the said arbitrators, do decide audi that the following concurrent regulati respective Governments are necessary, hereinafter mentioned, that is to say: The arbitrators then proceeded to the consideration of a project of declarations, in connection with the regulations, which Baron de Courcel in his name,, as in that of Marquis Visconti Venosta and Mr. Gregers Gram, proposed to the Tribunal to refer to the Governments of the United States and Great Britain for their consideration. This project is worded as follows: Declarations made by the Tribunal of Arbitration and referred to the Governments of the United States and Great Britain for their consideration. The arbitrators declare that the concurrent regulations, as determined npon by the Tribunal of Arbitration, by virtue of Article VII of the Treaty of the 29th of ' February, 1802, being applicable to the high sea only, should, in their opinion, be supplemented by other regulations applicable within the limits of the sovereignty of each of the two powers interested and to be settled by their common agreement. n. In view of the critical condition to which it appears certain that the race of fur- seals is now reduced in consequence of circumstances not fully known, the arbitrators think fit to recommend both Governments to come to an understanding in order to prohibit any killing of fur-seals, either on land or at sea, for a period of two or three years, or at least one year, subject to such exceptions as the two Governments might think proper to admit of. . Such a measure might be recurred to at occasional intervals if found beneficial. III. The arbitrators declare moreover that, in their opinion, the carrying out of the regulations determined npon by the Tribunal of Arbitration, should be assured by a system of stipulations and measures to be enacted by the two powers; and that the Tribunal must, in consequence, leave it to the two powers to decide npon the means for giving effect to the regulations determined npon by it. We do certify this English version to be true and accurate, and have signed the same at Paris this day of August, 1893. The first and third of the proposed declarations were unanimously adopted without modification. As concerns the second, Lord Hannen, although approving the spirit in which it is concaved, and although regarding as very desirable that the destruction of fur-seals might be entirely suspended durrrig a certain PROTOCOLS. 69 period of time, so as to enable nature to retrieve the losses which this race of animals has undergone, declared that he does not feel authorized by the terms of his mandate to express an opinion on the subject. Sir John Thompson looked upon the subject in the same light as Lord Hannen. The other arbitrators adopted the second declaration and it was decided that the text of the three declarations should be handed, at the same time as the award, but in a separate document, to the agents of the two Governments of the United States of America and of Great Britain, to be transmitted by them to their respective Governments. Passing to the consideration of the questions of fact which had been referred to it by the Britannic Government, by virtue of Article VIII of the treaty of February 29th, 1892, the Tribunal noticed that the agent and counsel of the Government of the United States had admitted that the statement of facts submitted by the agent of the Government of Great Britain was confirmed by the evidence, and had declared themselves in accord with the agent and counsel of the Government of Great Britain to leave it to the Tribunal to declare and pronounce true, as far as it might judge proper, the said statement of facts. The arbitrators, after deliberating, in consequence, upon the facts submitted to the Tribunal, decided unanimously that the said facts, as related iu the above-mentioned statement, are true. The arbitrators then proceeded with the final wording of the award, so as to make the award agree with each of the decisions arrived at by a majority of votes on each of the questions submitted to the Tribunal, taking as a basis of this wording, as it had been agreed, the form prepared by Lord Hannen. It was distinctly agreed that the arbitrators who found themselves in the minority on certain questions were not to be understood as withdrawing their votes. Under this reservation, the final text of the award was fixed and settled, by a unanimous vote of the arbitrators, in the form annexed to the present protocol. The Tribunal decided, unanimously, that in conformity with the . directions of the treaty of February 29th, 1892, two copies of the award should be prepared and signed to be handed to the two agents of the United States of America and of Great Britain, and that a third copy should also be prepared and signed to be filed in the archives of the arbitration, which will remain confided to the French Government. A similar decision was adopted as regards the declarations. Mr. Justice Harlau then submitted the following motion, which was adopted by a unanimous vote of the arbitrators: . The right is reserved to each arbitrator to file with the secretary of this Tribunal, at any time after its adjournment, and before the 1st day of January, 1894, an opinion or opinions upon the questions or any of them submitted for determination, and such opinion or opinions shall be regarded as an annex to this protocol. 70 PROTOCOLS. The Tribunal decided to meet on Tuesday, August 15th, at 10 a. m., with closed doors, for the signature of the award and the declarations, and immediately thereafter, in public meeting, for the delivery of the award and the declarations to the agents of the two Governments. Done at Paris, the 14th of August, 1893, and signed: The President: ALPH. DE COURCEL. The Secretary: A. IMBERT. Translation certified to be accurat A. Bailly-Blanchard, ) H. CUNYNGHAME, i Co-Secretaries. PROTOCOL LV. MEETING OF TUESDAY, AUGUST 15,1893. The Tribunal assembled, with closed doors, at 10 a. in., all the arbitrators being present. The seven arbitrators signed the final award of the Tribunal, in triplicate copies, on parchment, one of these copies being for each of the parties, in conformity with the directions of the treaty, and the third, by virtue of a previous decision of the Tribunal, to be preserved in the archives of the arbitration confided to the safe-keeping of the French Government. The original text was accompanied by an English version, which the seven arbitrators have certified by their signatures thereto as being true and accurate. The seven arbitrators also signed, in triplicate copies, on parchment, the declarations to be referred by them to the two Governments of the United States and of Great Britain and certified the English version thereof to be true and accurate. Lord Hannen and Sir John Thompson,. while signing, stated in writing that they approved only Declarations I and III. The arbitrators then considered a request which had been transmitted to them by the agents of the United States and of Great Britain, to settle the allowances which it would be proper to make'to the secretaries who had assisted the Tribunal in its labors, and drew up a statement of these allowances, which was handed to the agents of the two Governments, through t lie care of Mr. Justice Harlan and of Sir John Thompson. At 11 o'clock the meeting with closed doors came to an end and was immediately followed by a public meeting. All the arbitrators were present, also the agents of the Governments of the United States of America and of Great Britain. Upon the request of the president, Mr. Imbert, secretary of the Tribunal, handed to the Honorable John W. Foster, agent of the Gov- PROTOCOLS. 71 eminent of the United States of America, the signed copy of the award of the Tribunal intended for the Government of the United States. Mr. Imbert then handed to the Honorable Charles H. Tupper, agent of Her Britannic Majesty, the signed copy of the award of the Tribunal intended for the Government of Her Britannic Majesty. The two copies of the declarations of the arbitrators, signed by them and intended for the Governments of the United States of America and of Great Britain, were handed in the same form to the agents of the two Governments. The president then spoke as follows: Gentlemen: Now we have come to the end of our task. We have done our heat to accomplish it, without concealing from ourselves the difficulties "which complicated it, nor the heavy responsibilities which it has imposed upon us. Selected from various nationalities, we have not considered ourselves the representatives of any one in particular, nor of any government or any human power, but, solely guided by our conscience and our reason, we have wished only to act as onT) of those councils of wise men, whose duties were so carefully defined by the old capitularies of France. To assist us, we have had at our disposition a library of documents, compiled with extreme care, and in order that we might not lose our way among so many sources of information, men holding a high rantf'among the most learned jurists and eloquent orators of which the Old or New Worlds could boast have been willing so liberally to bestow upon us their advice. During weeks aud months our labors have been prolonged, and it constantly appeared that some new matter had risen before us and that some new problem pressed upon our attention. To-day, on this great holiday, we are assembled to inform you of the result of our abors, hoping with all our hearts that they may be profitable to man, and conformable to the designs of Him who rules his destiny. We know that our work is not perfect; we feel its defects, which must be inherent in all human efforts, and are conscious of its weakness, at least in certain points as to which we had to base our action on circumstances necessarily liable to change. The declarations which we offer to-day to the two agents, and which we hope will be taken iuto consideration by their Governments, indicate some of the causes of the necessary imperfection which we have mentioned. We have felt obliged to maintain intact the fundamental principles of that august law of nations, which extends itself like the vault of heaven above all countries, and which borrows the laws of nature herself to protect the peoples of the earth, one against another, by inculcating in them the dictates of mutual good will. In the.regulations which we were charged to draw up we have had to decide between conflicting rights and interests which it was difficult to reconcile. The Governments of the United States of America and Great Britain have promised to accept and execute our decisions. Our desire is that this voluntary engagement may not cause regret to either of them, though we have required of both sacrifices ■ which they may, perhaps, regard as serious. This part of our work inaugurates * great innovation. Hitherto, the nations were agreed to leave out of special legislation the vast domain of the seas, as in times of old, according to the poets, the earth iteelf was common to all men, who gathered its fruits at their will, without limitation or control. You know that oven to-day, dreamers believe it possible to bring back kuniau- lty to that golden age. Tho sea, however, like the earth, has become small for men, who, like the hero, Alexander, and no less ardent for labor than he was for glory, 72 PROTOCOLS. feel confined iu a world too narrow. Our work is a first attempt at a sharing of the products of the ocean, which has hitherto hoen undivided, and at applying a rule to things which escaped every other law hut that of the first occupant. If this attempt succeeds, it will douhtloss he followed hy numerous imitations, until the entire planet, until tho waters as well as tho continents will have hecomo the subject of a careful partition. Then, perhaps, the conception of property may change amongst men. Before laying down the mandate which we have received in trust from two great Governments, wo desire to offer our gratitude to all those whose efforts had for their object to facilitate the accomplishment of our task, and especially to the agents and counsel of the two Governments of the United States of America and Great Britain. And, now,,a Frenchman may be permitted to use a word which his ancestors employed when they sung the lay of their great Emperor, and to say to ail of you: Gentlemen, may you retain a kind romembrauce of sweet France! Lord Hannen, then addressing the president, said: Mr. de Courcel, on behalf of your late colleagues, 1 have to express my great regret that tho absence of the President of the French Eepublic and Mr. Devolle from Paris prevents our waiting upon them before leaving this city where wo have been so kindly treated. We must therefore beg you, as the French member of the late Tribunal of Arbitration, to convey to the President and to tho French Government the expression of our sentiments of profound gratitude for the gracious reception and gonerous hospitality which they have extended to us. Our thanks are specially due to Mr. Deveile, who^So much to his own inconvenience, has provided us in this palace with so splendid a domicile, and we offer him our apologies for having so long, though involuntarily, tresj^assed on his kindness. And now, Mr. de Courcel, I have to discbarge a duty which gives me peculiar satisfaction. I have to express to you our high appreciation of the manner in which you have presided over our deliberations. The public has had the opportunity of witnessing the sagacity, the learning, and the courtesy with which you have guided the proceedings during the arguments. Your colleagues only can know how greatly those qualities have assisted us in our private couferences. Let me add, that" our intimate relations with you have taught us to regard you with the warmest esteem and affection. Permit me to say that you have won in each of us an attached friend. I must not conclude without an allusion to the remarkable occasion which has brought us togetber. We trust that the result will prove that we have taken pare in a great historical transaction fruitful in good for the world. Two great nations, in submitting their differences to arbitration, have.set an example which I doubt not will be followed from time to time by others, so .that the scourge of war will be more and more repressed. Fow can be so sanguine as to expect that all international quarrels will be speedily settled by arbitration, instead of by the dread arbitrament of war; but each occasion on which the peaceful method is adopted will hasten tho time when it will be the rule and not the exception. One of our poets has said that evory prayer for universal peace avails to expedite its coming. We have done more than join in such a supplication; we may hope that we have been the humble instruments through whom an answer has been granted to that prayer which I doubt not ascends from the hearts of those two kindred nations, that peace may forever prevail between them. I bid you heartily farewell. Senator Morgan then addressed the following remarks to express his share in the sentiments which Lord Hannen had just interpreted: The arbitrators on the part of the United States most sincerely unite in the very happy expressions that have fallen from Lord Hannen, of grateful appreciation of PROTOCOLS. 73 the splendid hospitality of the French Government and people. We have been their guests for many months, and have been under the shelter of their laws and in the presence of their grand and beautiful civilization, and during all that time we have felt that our welcome did not cease to be cordial. If we should take a narrow view of the results of this arbitration, the United States would have a regret that the important judicial questions we have been considering were not stated in a broader form in the treaty between these great Powers. The opportunity was offered when the treaty was in process of formation to have presented in a more equitable light the rights of the nations to whose islands and coasts the fur-seals habitually resort for places of abode and shelter in the summer season; to control and protect them under the legal rules and intendments that apply universally to the animals that are classed as domestic, or domesticated animals, because of their usefulness to men. K|§S My colleague and I concurred in the view that the treaty presented this subject for consideration in its broadest aspect. Our honorable colleagues, however, did not so construe the scope of the duty prescribed to the Tribunal by the treaty. They considered that these questions of the right of property and protection in respect to the fur-seals were to be decided upon the existing state of the law, and, finding no existing precedent in the international law, they did not feel warranted in creating one. As the rights claimed by the United States could only be supported by international law, in their estimation, and inasmuch as that law is silent on the subject, they felt that under the treaty they could find no legal foundation for the rights claimed that extended beyond the limits of the territorial jurisdiction of the United States. This ruling made it necessary to resort to the power conferred upon the Tribunal to establish, by the authority of both Governments,-regulations for the preservation and protection of the fur-seals, to which the treaty relates. In this new and untried field of experiment, much embarrassment was found in conflicting interests of an important character, and yet more difficulty in the uncertainty as to the facts upon which regulations could be based that would be at once just to those interests, and would afford to the fur-seals proper preservation and protection. The United States will fully understand and appreciate those difficulties, and will accept the final award as the best possible result, under existing conditions. Avery large measure of protection is secured by the regulations adopted by the Tribunal to the Alaskan herd of fur-seals; and the virtual repression of the use of firearms in pelagic sealing is an earnest and wise guaranty that those common interests may be pursued without putting in serious peril the peace of the two countries. It is a great pleasure to the arbitrators appointed on the part of the Uuited States that they can bear tbe highest testimony to the ability, integrity, patience, industry, and judicial impartiality of their colleagues in this Tribunal. Our labors have been arduous and protracted, but have been attended with uniform courtesy and good feeling on the part of all the members of the Tribunal. " We hope for still broader and better results from the foundations we have laid in this new field of international agreements. To the president of the Tribunal we owe a debt that wo gratefully acknowledge, that he has so patiently and with such distinguished ability discharged the difficult duties of his position. The agents of the respective Governments have prepared, at great expense of , labor and with unusual skill and industry, every available fact that would throw any light upon the matters in controversy, and the counsel have dealt with the great masses of evidence so prepared with that marked ability for which they have become renowned upon other occasions." Conscious of having done all we could to roach conclusions that are just and will be salutary, we close our labors in the hope that they will be acceptable to all nations. PROTOCOLS. The president thereupon said that he cheerfully accepted the mission to transmit to the President of the French Republic and to Mr. Develle the thanks of the members of the Tribunal. He thanked personally Lord Hannen and Senator Morgan for the sentiments which they had expressed concerning himself. He then announced that the Tribunal had closed its labors, and at 12 m. the Tribunal adjourned sine die. Done at Paris, the 15th of August, 1893, and signed: The President: ALPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. The Secretary: A. IMBERT. Translation certified to be accurate: A. Bailly-Blanchard, H. CUNYNGHAME, Go- Secretaries* AWARD OF THE TRIBUNAL OF ARBITRATION CONSTITUTED UNDER THE TREATY CONCLUDED AT WASHINGTON, THE 29TH OF FEBRUARY, 1892, BETWEEN THE UNITED STATES OF AMERICA AND HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND. Whereas by a treaty between the United States of America and Great Britain, signed at Washington, February 29, 1892, the ratifications of which by theGovemmentsof the two countries were exchanged at London on May the 7th, 1892, it was, amongst other things, agreed and concluded that the questions which had arisen between the Government of the United States of America and the Government of Her Britannic Majesty, concerning the jurisdictional rights of the United States in the waters of Bering's Sea, and concerning also the preservation of the fur-seal in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters, should be submitted to a Tribunal of Arbitration, to be composed-" of seven Arbitrators, who should be appointed in the following manner—that is to say: Two should be named by the President of the United States; two should be named by Her Britannic Majesty; His Excellency the President of the French Republic should be jointly requested by the High Contracting Parties to name one; His Majesty the King of Italy should be so requested to name one; His Majesty the King of Sweden and Norway should be so requested to name one; the seven Arbitrators to be so named should be jurists of distinguished reputation in their respective countries, and the selecting Powers should be requested to choose, if possible, jurists who are acquainted with the English language; And whereas it was further agreed by Article II of the said Treaty that the Arbitrators should meet at Paris within twenty days after the 75 76 AWARD AND DECLARATIONS. delivery of the Counter-Cases mentioned in Article IV, and should proceed impartially and carefully to examine and decide the questions which had been or should be laid before them as in the said Treaty provided on the part of the Governments of the United States and of Her Britannic Majesty, respectively, and that all questions considered by the Tribunal, including the final decision, should be determined by a majority of all the Arbitrators; And whereas by Article VI of the said Treaty, it was further provided as follows: In deciding tlie matters submitted to the said Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to "wit: 1. What exclusive jurisdiction in the sea now known as the Bering's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Bering's Sea included in the phrase Pacific Ocean, as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering's Sea were held and exclusively exercised by Russia after said Treaty ? 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering's Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that Treaty? 5. Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United Stal es in Bering Sea when such seals are found outside the ordinary three-mile limit? And whereas, by Article VII of the said Treaty, it was further agreed as follows: If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent Regulations, outside the jurisdictional limits of the respective Governments, are necessary, and over what waters such regulations should extend; The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Regulations; And whereas, by Article VIII of the said Treaty, after reciting that the High Contracting Parties had found themselves unable to agree upon a reference which should include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, and that " they were solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions," the High Contracting Parties agreed that "either of them might submit to the Arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability AWARD AND DECLARATIONS. 77 of either Government upon the facts found to be the subject of further negotiation;" And whereas the President of the United States of America named the Honorable John M. Harlan, Justice of the Supreme Court of the United States, and the Honorable John T. Morgan, Senator of the United States, to be two of the said Arbitrators, and Her Britannic Majesty named the Right Honorable Lord Hannen and the Honorable Sir John Thompson, minister of justice and attorney-general for Canada, to be two of the said Arbitrators, and His Excellency the President of the French Republic named the Baron de Courcel, Senator, Ambassador of France, to be one of the said Arbitrators, and His Majesty the King of Italy named the Marquis Emilio Visconti Venosta, former Minister of Foreign Affairs and Senator of the Kingdom of Italy, to be one of the said Arbitrators, and His Majesty the King of Sweden and Norway named Mr. Gregers Gram, minister of state, to be one of the said Arbitrators; And whereas We, the said Arbitrators, so named' and appointed, having taken upon ourselves the burden of the said Arbitration, and having duly met at Paris, proceeded impartially and carefully to examine and decide all the questions submitted to us, the said Arbitrators, under the said Treaty, or laid before us as provided in the said Treaty on the part of the Governments of Her Britannic Majesty and the United States, respectively; Bow We, the said Arbitrators, having impartially and carefully examined the said questions, do in like manner by this our Award decide and determine the said questions in manner following, that is to say, we decide and determine as to the five points mentioned in Article VI as to which our Award is to embrace a distinct decision upon each of them: As to the first of the said five points, We, the said Baron de Oourcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine as follows: By the Ukase of 1821 Russia claimed jurisdiction in the sea now known as the Bering's Sea to the extent of 100 Italian miles from the coasts and islands belonging to her, but, in the course of the negotiations which led to the conclusion of the Treaties of 1824 with the United States and of 1825 with great Britain, Russia admitted that her jurisdiction in the said sea should be restricted to the reach of cannon shot from shore, and it appears that from that time up to the time of the cession of Alaska to the United States Russia never asserted in fact or exercised any exclusive jurisdiction in Bering's Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters. As to the second of the said five points, We, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis 78 AWARD AND DECLARATIONS. Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that Great Britain did not recognize or concede any claim, upon the part of Russia, to exclusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary territorial waters. As to the third of the said five points, as to so much thereof as requires us to decide whether the body of water now known as the Bering Sea was included in the phrase " Pacific Ocean " as used in the Treaty of 1825, between Great Britain and Russia, We, the said Arbitrators, do unanimously decide and determine that the body of water now known as the Bering Sea was included in the phrase ''Pacific Ocean " as used in the said Treaty. And as to so much of the said third point as requires us to'.decide what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after the said Treaty of 1825, We, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that no exclusive rights of jurisdiction in Bering Sea and no exclusive rights as to the seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the Treaty of 1825. As to the fourth of the said five points, We, the said Arbitrators, do unanimously decide and determine that all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea, east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, did pass unimpaired to the United States under the said Treaty. As to the fifth of the said five points, We, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that the United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three- mile limit. And whereas the aforesaid determination of the foregoing questions as to the exclusive jurisdiction of the United States mentioned in Article VI leaves the subject in such a position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Bering Sea, the Tribunal having decided by a majority as to each Article of the following Regulations, We, the said Baron de Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers Gram, assenting to the whole of the nine Articles of the following Regulations, and being a majority of the said Arbitrators, do decide and determine, in the mode provided by the Treaty, that the following AWARD AND DECLARATIONS. 79 concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary and that they should extend over the waters hereinafter mentioned; that is to say: . Article 1. The Governments of the United States and of Great Britain shall forbid their citizens and subjects respectively to kill,, capture, or pursue, at any time and in any manner whatever, the animals commonly called fur seals, within a zone of sixty miles around the Pribilof Islands, inclusive of the territorial waters. The miles mentioned in the preceding paragraph are geographical miles of sixty to a degree of latitude. Article 2. The two Governments shall forbid their citizens and subjects respectively to kill, capture, or pursue, in any manner whatever, during the season extending, each year, from the 1st of May to the 31st of July, both inclusive, the fur seals on the high sea, in the part of the Pacific Ocean, inclusive of the Bering Sea, which is situated to the north of the 35th degree of North latitude, and eastward of the-180th degree of longitude from Greenwich till it strikes the water boundary described in Article 1 of the Treaty of 1807 between the United States and Russia, and following that line up to Bering Straits. Article 3. During the period of time and in the waters in which the fur seal fishing is allowed, only sailing vessels shall be permitted to carry on or take part in fur-seal fishing operations. They will, however, be at liberty to avail themselves of the use of such canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing boats. Article 4. Each sailing vessel authorized to fish for fur seals must be provided with a special license issued for that purpose by its Government and shall be required to carry a distinguishing flag to be prescribed by its Government. Article 5. The masters of the vessels engaged in fur seal fishing shall enter accurately in their official log book the date and place of each fur seal fishing operation, and also the number and sex of the seals captured upon each day. These entries shall be communicated by each of the two Governments to the other at the end of each fishing season. 80 AWARD AND DECLARATIONS. Article 6. The use of nets, firearms, and explosives shall be forbidden in the fur seal fishing. This restriction shall not apply to shotguns when such fishing takes place outside of Bering's Sea, during the season when it may be lawfully carried on. Article 7. The two Governments shall take measures to control the fitness of the men authorized to engage in far seal fishing; these men shall have been proved fit to handle with sufficient skill the weapons by means of which this fishing may be carried on. Article 8. The regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of .the territory of the United States or of Great Britain and carrying on fur seal fishing in canoes or undecked boats not transported by or used in connection with other vessels and propelled wholly by paddles, oars, or sails, and manned by not more than five persons each, in the way hitherto practiced by the Indians, provided such Indians are not in the employment of other persons, and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur seals outside of territorial waters under contract for the delivery of the skins to any person. This exemption shall not be construed to affect the municipal law of either country, nor shall it extend to the waters of Bering Sea or the waters of the Aleutian Passes. Nothing herein contained is intended to interfere with the employment of Indians as hunters or otherwise in connection with fur sealing vessels as heretofore. Article 9. The concurrent regulations hereby determined with a view to the protection and preservation of the fur seals shall remain in force until they have been, in whole or in part, abolished of modified by common agreement between the Governments of the United States and of Great Britain. The said concurrent regulations shall be submitted every five years to a new examination, so as to enable both interested Governments to consider whether, in the light of past experience, there is occasion for any modification thereof. Andwhereas the Government of Her Britannic Majesty did submit to the Tribunal of Arbitration by Article VIII of the said Treaty certain questions of fact involved in the claims referred to in the said Article VIII, and did also submit to us, the said Tribunal, a statement of the said facts, as follows, that is to say; AWARD AND DECLARATIONS. 81 Findings of fact proposed by the Agent of Great Britain and agreed to as proved by the Agent for the United States, and submitted to the Tribunal of Arbitration for its considei'ation. 1. That the several searches and seizures, whether of ships or goods, and the several arrests of masters and crews, respectively mentioned in the Schedule to the British Case, pages 1 to 60, inclusive, were made by the authority of the United States Government. The questions as to the value of the said vessels or their contents, or either of them, and the question as to whether the vessels mentioned in the Sohedule to the British Case, or any of them, were wholly or in part the actual property of citizens of the United States, have been withdrawn from and have not been considered by the Tribunal, it being understood that it is open to the United States to raise these questions, or any of them, if they think fit, in any future negotiations as to the liability of the United States Government to pay the amounts mentionedin tho. Schedule to the Brstish Case; 2. That the seizures aforesaid, with the exception of the " Pathfinder," seized at Neah-Bay, wero made in Bering Sea at the distances" from shore mentioned in the Schedule annexed hereto marked "G"; 3. That the said several searches and seizures of vessels were made by public armed vessels of the United States the commanders of which had, at the several times when they were made, from the Executive Department of the Government of the United States, instructions, a copy of one of which is annexed hereto, marked "A", and that the others were, in all substantial respects, the same: that in all the instances in which proceedings were had in the District Courts of the United States resulting in condemnation, such proceedings were begun by the filing of libels, a copy of one of which is annexed hereto, marked "B", and that tho libels in the other proceedings were in all substantial respects the same: that the alleged acts or offenses for which said several searches and seizures were made were in each case done or committed in Bering Sea at the distances from shore aforesaid; and that in each case in which sentence of condemnation was passed, except in those cases when thevessels were released after condemnation, the seizure was adopted by the Government of the United States; and in those cases in which the vessels were released the seizure was made by the authority of tho United States; that the said fines and imprisonments were for alleged broaches of the municipal laws of the United States, which alleged breaches were wholly committed in Bering Sea at the distances from the shore aforesaid; 4. That the several orders mentioned in the Schedule annexed hereto and marked " G" warning vessels to leave or not to enter Bering Sea were made by public armed vessels of the United States the commanders of which had, at the several times when they were given, like instructions as mentioned in finding 3, and that the ves-" sels so warned were engaged in sealing or prosecuting voyages for that purpose, and that such action was adopted by the Government of the United States; 5. That the District Courts of the United States in which any proceedings were had or taken for the purpose of condemning any vessel seized as mentioned in the Schedule to the Case of Great Britain, pages 1 to 60, inclusive, had all the jurisdiction and powers of Courts of Admiralty, including the prize jurisdiction, but that in each case the sentence pronounced by the Court was based upon the grounds set forth in the libel. B S—VOL I 6 82 AWARD AND DECLARATIONS. Annex A. Treasury Department, Office of the Secretary, Washington, April $1,18S6. Sir: Referring to Department letter of this dato, directing you to proceed with the revenue steamer Bear, under your command, to the seal islands, etc., you are hereby clothed with full power to enforce the law contained in the provisions of Section 1956 of the United States Rovised Statutes, and directed to seize all vessels and arrest and deliver to the proper authorities any or all persons whom you may detect violating the law referred to, after due notice shall have been given. You will also seize any liquors or fire-arms attempted to be introduced into tho country without proper permit, under the provisions of Section 1955 of the Revised Statutes and the Proclamation of the President dated 4th February, 1870. Respectfully yours, (Signed) C. S. Fairciiild, Acting Secretary. Capt. M. A. Healy, Commanding Revenue Steamer Bear, San Francisco, California. Annex B. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA. AUGUST SPECIAL TERM, 1886. To the Honorable Lafayette Dawson, Judge of said District Court: The libel information of M. D. Ball, Attorney for the United States for the District of Alaska, who prosecutes on behalf of said United States, and being present here in Court in his proper person, in the name and on behalf of the said United States, against the schooner Thornton, her tackle, apparel, boats, cargo, and furniture, and against all persons intervening for their intciest therein, in a cause of forfeiture, alleges and informs as follows: That Charles A. Abbey, an officer in the Rovenue-Marine Service of the United States, aud on special duty in tho waters of the district of Alaska, heretofore, to wit, on tho first day of August, 1886, within the limits of Alaska Territory, and iu the waters thereof, and within the civil and judicial district of Alaska, to wit, within tho waters of that portion of Bering Sea belonging to the said district on waters navigable from tho sea by vessels of 10 or more tons burden, seized the ship or vessel commonly called a schooner, tho Thornton, her tackle, apparel, boats, cargo, and furniture, being the property of some person or persons to the said Attorney unknown, as forfeited to the United States, for the following causes: That the said vessel or schooner was found engaged in killing fnr-seal within the limits of Alaska Territory, -and in the waters thereof, in violation of Section 1956 of the Rovised Statutes of the United States. And the said Attorney saith that all and singular the premises are and were true, aud within tho Admiralty and maritime jurisdiction of this Court, and that by reason thereof, and by force of the statutes of the United States in such cases made and provided, the aforementioned and described schooner or vessel, being a vessel of over 20 tons burden, her tackle, apparel, boats, cargo, and furniture, became and are forfeited to the use of the said United States, aud that said schooner is now within the district aforesaid. Wherefore the said Attorney prays the usual process and monition of this honorable Court issue in this behalf, and that all persons interested in the before- AWARD AND DECLARATIONS. 83 mentioned and described schooner or vessel may be cited in general and special to answer the premises, and all due proceedings being had, that the said schooner or vessel, her tackle, apparel, boats, cargo, aud furniture may, for the cause aforesaid, and others appearing, be condemned by the definite sentence and decree of this honorable Court, as forfeited to the use of the said United States, according to the form of the statute of the said United States in such cases made and provided. (Signed) M. D. Ball, United States District Attorney for the District of Alaska. Annex C. The following table shows the names of the British sealing vessels seized or warned by United States revenue cruisers, 1886-1890, and the approximate distance from land when seized. The distances assigned in the eases of the Carolena, Thornton, and Onward are on the authority of United States Naval. Commander Abbey. (See Fiftieth Congress, second session, Senate Executive Document No. 106, pp. 20, 30, 40.) The distances assigned in the cases of the Anna Beck, W. P. Sayivard, Dolphin, and Grace are on the authority of Captain Shepard, U. S. R. M. {Blue Book, United States, No. 2, 1890, pp. 80-82. See Appendix, Vol. Ill): Name of vessel. Date of seizure. Carolena Aug. 1,1880 Thornton Aug. 1,1886 Onward Aug. 2,1886 Favourite Aug. 2,1886 Anna Beck July 2,1887 W.P.Sayward July 9,1887 Dolphin July 12,1887 Grace July 17,1887 A lfred Adams Aug. 10,1887 Ada Ang. 25,1887 Triumph Aug. 4,1887 . Juanita I July 31,1880 Pathfinder July 29,1889 Triumph July 11,1889 Black Diamond July 11,1889 Lily Aug. 0,1889 Ariel July 30,1889 Kate Aug. 13.1889 Minnie July 15,1889 Pathfinder Mar. 27,1890 Approximate distance from land when seized. United States vessel nialung seizure. 75 miles Corwin. 70 miles Corwin. 115 miles Corwin. Warned by Corwin in about same position as Onward. 66 miles Eush. 59 miles Hush. - 40 miles Rush. 96 miles Rush. 62 miles Rush. 15 miles Bear. Warned by Rush not to enter Bering Sea. 66 miles Rush. 50 miles Rush. Ordered out of Bering Sea by Rush. (?) As to position when warned. 35 miles Rush. 66 miles Rush. Ordered out of Bering Sea by Rush. Ditto.: 05 miles Rush. Seized in N/eah Bay (') Corwin. ('i Neah Bay is in the State of Washington, and the Pathfinder was seized there on charges made against her in the Bering Sea in the previous year. She was released two days later. And whereas the Government of Her Britannic Majesty did ask the said Arbitrators to find the said facts as set forth in the said statement, and whereas the Agent and Counsel for the United States Government thereupon in our presence informed us that the said statement of facts was sustained by the evidence, and that they had agreed with the Agent and Counsel for Her Britannic Majesty that We, the Arbitrators, if we should think fit so to do, might find the said statement of facts to be true. Now, We, the said Arbitrators, do unanimously find the facts as set forth in the said statement to be true. And whereas each aud every question which has been considered by the Tribunal has been determined by a majority of all the Arbitrators; 84 AWARD AND DECLARATIONS. Now, We, Baron de Courcel, Lord Hannen, Mr. Justice Harlan, Sir John Thompson, Senator Morgan, the Marquis Visconti Venosta, and Mr. Gregers Gram, the respective minorities not withdrawing their votes, do declare this to be the final Decision and Award in writing of this Tribunal in accordance with the Treaty. Made in duplicate at Paris and signed by us the fifteenth day of August, in the year 1893. And We do certify this English Version thereof to be true and accurate. Alph. de Courcel. John M. Harlan. John T. Morgan. Hannen. Jno. S. D. Thompson. Viscgnti Venosta. • G. Gram. DECLARATIONS MADE BY THE TRIBUNAL OF ARBITRATION AND REFERRED TO THE GOVERNMENTS OF THE UNITED STATES AND GREAT BRITAIN FOR THEIR CONSIDERATION. The Arbitrators declare that the concurrent Eegulations, as determined upon by the Tribunal of Arbitration, by virtue of Article VII of the Treaty of the 29th of February, 1892, being applicable to the high sea only, should, in their opinion, be supplemented by other Regulations applicable within the limits of the sovereignty of each of the two Powers interested and to be settled by their common agreement. II In view of the critical condition to which it appears certain that the race of fur-seals is now reduced in consequence of circumstances not fully known, the Arbitrators think fit to recommend both Governments to come to an understanding in order to prohibit any killing of far-seals, either on land or at sea, for a period of two or three years, or at least one year, subject to such exceptions as the two Governments might think proper to admit of. Such a measure might be recurred to at occasional intervals if found beneficial. HI The Arbitrators declare, moreover, that, in their opinion, the carrying out of the Eegulations determined upon by the Tribunal of Arbitration should be assured by a system of stipulations and measures, to be enacted by the two Powers, and that the Tribunal must, in conse- 85 86 AWARD AND DECLARATIONS. quence, leave it to the two Powers to decide upon the means for giving effect to the Eegulations determined upon by it. We do certify this English version to be*true and accurate, and have signed the same at Paris this 15th day of August, 1893. Alph de Courcel. John M. Harlan. I approve Declarations' I and III Hannen. J approve Declarations I and III Jno. S. D. Thompson. John T. Morgan. Visconti Venosta. G. Gram. BERING SEA TRIBUNAL OF ARBITRATION. OPINION MR. JUSTICE HARLAN CONFERENCE IN PARIS OF THE BERING SEA TRIBUNAL OF ARBITRATION, CONSTITUTED BY TOE TREATY/ OF FEBRUARY 29, 1892, BETWEEN HER BRITANNIC MAJESTY AND THE. UNITED STATES OF AMERICA, AND COMPOSED OF THE FOLLOWING MEMBERS: BARON DE COURCEL, Senator and Ambassador of France, President of the Tribunal; THE RIGHT HONORABLE LORD HANNEN, Of Great Britain; THE HONORABLE SIR JOHN THOMPSON, Minister of Justice and Attorney-General of Canada; MR. JUSTICE HARLAN, A Justice of the Supreme Court of the United States/ SENATOR MORGAN, A Senator of the United Stales; MARQUIS EMILIO VISCONTI VENOSTA, Former Minister of Foreign Affairs, and Senator of the Kingdom of Italy, And HIS EXCELLENCY GREGERS GRAM, Minister of State of Norway. WASHINGTON, D. 0.: GOVERNMENT PRINTING OFFICE. 1893. TABLE OF CONTENTS. PART I. THE JURISDICTION OP THE TRIBUNAL OF ARBITRATION. Page. . 1. Remarks in support of motion that Tribunal first determine its competency or powers under the Treaty in respect to certain matters 5 2. Upon the question of the competency of the Tribunal to prescribe regula- ' tions covering the waters of the North Pacific Ocean, and which would prohibit pelagic sealing entirely 8 PAEI II. THE MERITS OP THE VARIOUS QUESTIONS SUBMITTED TO THE TRIBUNAL FOR DETERMINATION. Page. 1. General statement of the facts out of which the present contioversy between the two nations arose, and the history of the negotiations resulting in the Treaty of February 29, 1892 36 2. Jurisdiction and rights asserted and exercised by Russia in Bering Sea, and in respect to the seal fisheries in that sea, prior to the cession of 1867 of Alaska to the United States. Effect of tho Treaty concluded in 1825 between Russia and Great Britain. The rights that passed to the United States by the Treaty of Cession of 1867 5S 3. The right of property asserted by the United States in the Pribilof herd of seals, and its right, whether as owner of the herd, or simply as owner of the fur-seal industry on the Pribilof Islands, to protect the seals against pelagic sealing Ill 4. Concurrent regulations 205 3 [After the argumonts of counsel were concluded, the Tribunal of Arbitration went into Conference to consider and determine the various matters submitted to it. All the questions discussed were examined and fully considered by the Arbitrators, and in order that they might have an opportunity to put upon record in the form of written opinions ("if they so desired), the views expressed by them in conference, the Tribunal, at the close of its deliberations, adopted aud embodied in the Protocol of August 14, 1893, the following resolution: "The right is reserved to each Arbitrator to file with tho secretary of this Tribunal, at anytime after the adjournment, and before the first day of January, 1894, an opinion or opinions upon the questions or any of them submitted for determination, and such opinion or opinions shall be regarded as an annex to this Protocol." The opinions below embody, substantially, what was said orally in conference by Mr. Justice Harlan upon the questions or matters alluded to in those opinions.] PART I. THE JURISDICTION OP THE TRIBUNAL OF ARBITRATION. 1. HIOIAIiTCS IN SUPPORT OF MOTION THAT THE TRIl!l.>AI, FIRST DETERMINE ITS CO.III'K'I'KXCV OK POWERS, UNDER THE TREATS", IN RESPECT TO CERTAIN MATTERS. (These remarks were made at the first meeting of the Arbitrators after counsel had concluded their arguments.) Mr. President: It has been suggested that the Arbitrators have a full interchange of views touching the questions submitted by the •treaty for determination before any formal vote is taken. I entirely approve this suggestion. We ought to have the benefit of such an interchange of views before placing upon record the conclusions we have respectively reached. But, in my judgment, our first duty is to determine the competency of this Tribunal, under the treaty, to deal with the various matters submitted to us by the two governments. I move, therefore, that the Tribunal, before entering upon the consideration of these matters upon their merits, determine its competency, so far as it may be involved in the following questions: 1. Is it competent, under the treaty, for this Tribunal to prescribe regulations applicable to such parts of the North Pacific Ocean, outside of the jurisdictional limits of the two governments, as are traversed by the seals frequenting the Pribilof Islands, if, upon the facts, regulations of that character are necessary for the proper protection and preservation of the fur seal in, or habitually resorting to, Bering Sea? 2. Is it competent, under the treaty, for this Tribunal to prescribe regulations for a closed season covering such waters of both Bering Sea and the North Pacific Ocean, outside the jurisdictional limits of the two countries, as are habitually traversed by these fur seals, and embracing the months during which fur seal may be taken in the open seas, and during which closed season aU hunting of said seals in such waters shall be forbidden, provided the facts show that regulations of that character are necessary for the proper protection and preservation of the fur seal in, or habitually resorting to, Bering Sea? We find that counsel differ widely as to the powers of the Tribunal touching the matters referred to in this motion. The British Government, in its Counter Case, and its counsel in their printed argument, question the authority of the Tribunal, under the treaty, to prescribe regulations applicable to the North Pacific Ocean, even if it be found that regulations covering a part of that ocean are absolutely essential to the proper protection and preservation of these fur seals. And that Government and its learned counsel, at whose head is the Attorney-General of Great Britain, while not expressly disputing our power to establish a zone around the Pribilof Islands within which pelagic sealing may be entirely prohibited at all seasons, also deny that this Tribunal has any authority to prescribe regulations which, by their necessary operation, will put an end altogether to the business of hunting these seals in the open waters of Bering Sea outside of such zone or in the North Pacific Ocean. The United States contends that the treaty requires at our hands whatever regulations are necessary for the proper protection and preservation of these fur seals when found outside the jurisdictional limits of the respective Governments, either in Bering Sea or in the North Pacific Ocean; that the power to prescribe such regulations is expressly conferred; and that a refusal to exert such power, if its exercise be found, uuder the evidence, necessary to the preservation of this race, will be a refusal to execute the treaty, and, therefore, would defeat one of its principal objects. For one, I wish to know, before any interchange of views occurs between Arbitrators in respect to the merits of the several matters sub- mitted, what the Tribunal deems its powers to be in regard to the subjects we are here to consider. No Arbitrator should be put in such position that it can be said that his views as to the competency of the Tribunal were withheld uutil the majority had expressed opinions in respect as weU to the merits of the several questions of right arising under the treaty, as to the necessity 6f regulations for the proper protection and preservation of these seals. If, however, it be the pleasure of Arbitrators to interchange views upon the merits of all the questions before us, not involving the jurisdiction of the Tribunal, before any vote is taken, and if they order my motion to lie upon the table for the present, I will acquiesce, if it be understood that the first recorded vote shaU be upon the points em- -bodied in that motion. Let me say in this connection that, the arguments having been concluded, I am prepared to indicate to any Arbitrator, whenever desired by him, the conclusion reached by.me touching any question before us, whether relating to the merits of the case or to the competency of the tribunal. Any such expression of views must, of course, be subject to the possibility of their being changed or modified as tho result of our discussions in conference. If there are other questions of the jurisdiction of this Tribunal besides those named by me in respect to which any Arbitrator desires action by the Tribunal before coming to matters that must be covered by the award, I will cooperate with him in having such action, and this without reference to the nature of the question. If any Arbitrator wishes to know, in advance, what the Tribunal thinks as to its competency or powers, I shaU deem it my duty, ' so far as my action can have effect, to put his mind at rest in respect to that matter. But, Mr. President, I cannot stop here without running the risk of being charged with concealing some things that are on my mind and which Arbitrators are entitled to know before acting upon this motion. My conviction is absolute that the treaty as interpreted by the British Government and its counsel, in respect to the powers of the Tribunal, is not the treaty I was asked to aid in executing. It is not the treaty Great Britain would have asked the United States to sign. It is not the treaty which the President of the United States would have approved. It is not the treaty which a single member of the Senate of the United States would have sustained by his vote. So strong is my conviction upon this subject that if this Tribunal does not conceive 8 itself1 to have the power, under the treaty, to preserve this race of useful animals so far as that end may be attained by regulations applicable to the waters of both Bering Sea and the North Pacific Ocean traversed by these seals; if it decides that it can not, for want of power, make regulations of that character, I would deem myself wanting in duty to both of the countries here represented, if I did not insist upon an adjournment of this Conference for such reasonable time as would give the respective Governments an opportunity to negotiate for a supplementary convention investing the Tribunal with full power to accomplish the object which, in every form of language, they have expressed an earnest desire to accomplish, namely, the preservation of this race of fur seals, without reference to considerations of profit or advantage to any nation or to the individuals of any nation. I beg you to understand that I do not ask the Tribunal to say at this time what regulations are necessary to secure the preservation of these animals. If, upon examination of the evidence, it be found that regulations which in terms or by necessary operation prohibit or put an end altogether to pelagic sealing both in Bering Sea and in the North Pacific Ocean are not necessary for the proper protection and preservation of this race of animals, both countries must, in good faith, abide by that determination. I only ask that you declare in some form and in advance whether you have the power under the treaty to prescribe regulations of the character indicated by me, if the facts show them to be necessary in order to save this race from extermination. I am unwilling to remain silent upon this question of the competency of the Tribunal until I shall have ascertained what your views are on the several matters submitted for determination, aud then bring up, or forbear to bring up, this question of jurisdiction, as I may agree or disagree with the views you express on the merits. UPON THE QUESTION OF THE COMPETENCE OF THE TRIBUNAL TO I'KKSCRIBE REGULATIONS COVERING! THE WATERS OF THE NOBETSI PACIFIC OCEAN, AND WHICH WOULD PROHIBIT PEL AGIO SCALING ENTIRELY. (Tho Tribunal having on a subsequent day of its sessions voted to consider the ahove motion, the remarks below were made in its support.) This Tribunal has been constituted in order that there may be an amicable settlement, by arbitration, of certain questions between the Government of the United States of America and the Government of Her Britannic Majesty, which are described, generally, in Article I of the treaty of February 29,1892,* as questions " concerning the jurisdic- * TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN CONCLUDED FEBRUARY 29, 1892. The United States of America and Her Majesty the Queen of the United Kingdom of.Great Britain and Ireland, being desirous to provide for an amicable settlement of the questions which have arisen between their respective Governments concerning the jurisdictional rights ofthe'United States' in tho waters of Boring's Sea, aud concerning also tho preservation of the fur-seal in, or habitually resorting to, the said sea, and the rights of the citizens and subjects of either country as regards the taking the fur-seal in, or habitually resorting to, the said waters, have resolved to submit to arbitration the questions involved, and to the end of concluding a convention for that purpose have appointed as their respective Plenipotentiaries: The President of the United States of America, James G. Blaine, Secretary of State of the United States; aud Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir Julian Pauncefote, G. c. m. g., k. C. b., Her Majesty's Envoy Extraordinary and Minister Plenipotentiary to tho United States; Who, after having communicated to each other their respective full powers which were found to be in due and proper form, have agreed to and concluded the following articles: Article I. The questions which have arisen between the Government of the United States and the Government of Her Britannic Majesty concerning the jurisdictional rights of the United States in the waters of Bering Sea, and coucerning also the preservation of the fur-seal in, or habitually resorting to, tho said sea, and the rights of the citizens and subjects of either country as regards the taking of fur- seal in, or habitually resorting to, the said waters, shall be submitted to a tribunal of arbitration, to be composed of seven arbitrators, who shall be appointed in the following manner, that is to say: Two shall be named by tho President of the United States; two shall be named by her Britannic Majesty; His Excellency tho President of the French Republic shall be jointly requested by the high contracting parties to name one; His Majesty, the King of Italy, shall be so requested to name one; aud His Majesty, the King of Sweden and Norway, shall be requested to name one. The seven arbitrators to be so named shall bo jurists of distinguished reputation in their respective countries; and tho selecting powers shall be requested to choose, if possible, jurists who are acquainted with the Euglish language. Iu case of death, absence, or incapacity to serve of any or either of the said arbitrators, or in the event of any or either of the said arbitrators omitting or declining or ceasing to act as such, the President of the United States, or Her Britannic Majesty, or His Excellency, the President of tho French Republic, or His Majesty the King of Italy, or His Majesty, the King of Sweden aud Norway, as the case may be, shall name, or shall be requested to name forthwith another person to act as 10 tional rights of the United States in the waters of Bering Sea, and concerning also the preservation of the fur seal in, or habitually resorting to, the said Sea, and the fights of the citizens and subjects of either country as regards the taking of fur seal in, or habitually resorting to, the said waters." Article VI provides that, " in deciding the matters submitted to the arbitrators," certain points, five in number, shall be sumbitted to them, in order that then? award may embrace a distinct decision upon each point. One of those points is embodied in the following question: arbitrator in the place and stead of the arbitrator originally named by-such head of a State. And in the event of a refusal or omission for two months after roceipt of the joint request from the High Contracting Parties of His Excellency, the President of the French Republic, or His Majesty, the King of Italy, or His Majesty, the King of Sweden and Norway, to name an arbitrator, either to fill the original appointment or to fill a vacancy as above provided, then in such case the appointment shall be made or the vacancy shall be filled in such manner as the High Contracting Parties shall agree. Art. II. The arbitrators shall meet at Paris within twenty days after the delivery of the counter cases mentioned in Article I v, and shall proceed impartially and carefully to examine and decide the questions that have been or shall be laid "before them as herein provided on the part of the Govervments of the United States and Her Britannic Majesty, respectively. All questions considered by the tribunal, including the final decision, shall be determined by a majority of all the arbitrators. Each of the High Contracting Parties shall also name one person to attend the tribunal as its agent to represent it genorally in all mattors connected with the arbitration. Art. IH. The printed case of each of the two parties, accompanied by the documents, the official correspondence, and other ovidence on which each relies, shall be delivered in duplicate to each of the arbitrators and to the agent of the other party as soon as may be after the appointment of the members of the tribunal, but within a period not exceeding four months from the date of the exchange of the ratifications of this treaty. Art. IV. Within three months after the delivery on both sides of the printed case, either party may, in like manner deliver in duplicate to each of the said arbitrators, and to the agent of the other party, a counter case, and additional documents, correspondence, and evidence so presented by the other party. If, however, in consequence of the distance of the place from which the evidence to he presented is to be procured, either party shall, within thirty days after the receipt by its agent of the case of the other party, give notice to the other party that it requires additional time for the delivery of such counter case, documents, correspondence, and evidence, such additional time so indioated, but not. exceeding sixty days beyond the three mouths in this article provided, shall be allowed. If, in the case submitted to the arbitrators, either party shall have specified or alluded to any report or document in its own exclusive possession, without annexing 11 "5. Has the United States any right,, and if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit1?" Article VII is in these words: "If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the a copy, such party shall be hound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof; and either party may call upon the other, through the arbitrators, to produce the originals or certified copies of any papers adduced as evideuce, giving in each instance notice thereof within thirty days after delivery of the case; aud the original or copy so requested shall be delivered as soon as may be, and within a period not exceeding forty days after receipt of notice. Art. V. It shall be the duty of the agent of each party, within one month after the expiration of the time limited for the delivery of the counter case on both sides, to deliver in duplicate to each of the said arbitrators aud to the agent of the other party a printed argument showing the points and referring to the evidence upon which his Government relies, and either party may also support the same before the arbitrators by oral argument of counsel; and the arbitrators may, if they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument of counsel, upon i,t; but in such case the other party shall be entitled to reply, either orally or in writing, as the case may be. Art. VI. In deciding the matters submitted to the arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit: 1. "What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exorcise prior and up to the time of the cession of Alaska to the United States? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Bering Sea included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after said treaty? 4. Did all the rights of Russia as to jurisdiction, and as to tho seal fisheries in Bering Sea east of the water boundary, in" the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty? 5. Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary 3-mile limit? Art. VII. If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the 12 fur seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what coucurrent Regulations outside the jurisdictional limits of the respective Governments are necessary and over what waters such Regulations should extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other powers to such Regulations." Article XIV declares that "the High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration, concurrence of Great Britain is necessary to the establishment of regulations for the proper protection aud preservation of the fur-seal in, or habitually resorting to, the Beriug Sea, the arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend, and to aid them in that determination, the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such regulations. Art. VIII. The High Contracting Parties having found themselves unable to agree upon a reference which shall include tho question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it; and being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, do agree that either party may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation. Art. IX. The High Contracting Parties have agreed to appoint two commissioners on the part of each Government to make the joint investigation and report contemplated in the preceding Article vn, and to include the terms of the said agreement in the convention, to the end that the joint and several reports and recommendations of said commissioners may be in due form submitted to the arbitrators, should the contingency therefor arise, the said agreement is accordingly herein included as follows: Each Government shall appoint two commissioners to investigate conjointly with the commissioners of the other Government all tho facts having relation to seal life in Bering Sea, and the measures nocessary for its proper protection and preservation. Tho four commissioners shall, so far as they may bo able to agree, make a joint report to each of the two Governments, and they shall also report, either jointly or 13 as a full, perfect, and final settlement of all the questions referred to the Arbitrators." Throughout the whole of the negotiations resulting in the treaty, the two Governments, by their accredited representatives, expressed an earnest desire for the proper protection and preservation of the fur seals which had their breeding grounds on Pribilof Islands in Beriug Sea, as well as their willingness to unite in the enforcement against their respective citizens or subjects of all measures found necessary to prevent the extermination of that race of animals. The record before us furnishes conclusive evidence of these facts. As early as November 12,1887, Mr. Phelps, United States Minister severally, to each Government on any points upon which they may be unable to agree. These reports shall not be made public until they shall be submitted to the arbitrators, or it shall appear that the contingency of their being used by the arbitrators can not arise. Art. X. Each Government shall pay the expenses of its momhers of the joint commission in the investigation referred to in the preceding article. Art. XI. The decisions of the tribunal shall, if possible, be made within three months from the close of the argument on both sides. It shall be made in writing and dated, and shall bo signed by tho arbitrators who may assent to-it. The decision shall be in duplicate, one copy whereof shall be delivered to the agent of the United States for his Government, aud the other copy shall be delivered to the agent of Great Britain for his Government. Art. XII. Each Government shall pay its own agents and provide for the proper reinuueration of the counsel employed by it, and of the arbitrators appointed by it, aud for the expense of preparing and submitting its ease to the tribunal. All other expenses connected with the arbitration shall be defrayed by the two Government in equal moieties. Art. XIII. The arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary officers to assist them. Art. XIV. The High Contracting Parties engaged to consider the result of the proceedings of the tribunal of arbitration, as a full, perfect, and final settlement of all the questions referred to the arbitrators. Art. XV. The present treaty shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by Her Britannic Majesty; and the ratification shall he exchanged either at Washington or at London within six months from the date hereof, or earlier if possible. In faith whereof we, the respective Plenipotentiaries, have signed this treaty and have hereunto affixed our seals. Done in duplicate at Washington the twenty-ninth day of February, one thousand eight hundred and ninety-two. James G. Blaine. [seal.] Julian' Pauncefote. [seal.] 14 at London, had an interview with the Marquis of Salisbury, British Secretary of State for Foreign Affairs, in which the former proposed, on the part of the Government of the United States, that by mutual agreement of the two Governments a code of regulations be adopted for the preservation of the seals in Bering Sea from destruction at improper times and by improper means by the citizens of either country— such agreement to be entirely irrespective of any questions of conflicting jurisdiction in those waters. In this view his lordship promptly acquiesced, and suggested that the American minister obtain from his Government and submit a sketch of a system of regulations that would be adequate for that purpose. U. S. Case, App. Vol. I, p. 171. The American Secretary of State, Mr. Bayard, being informed of this interview, wrote to Mr. Phelps, under date of February 7,1888, suggesting that the only way to preveut the destruction of the seals appeared to be for the United States, Great Britain, and other interested powers to take concerted action restraining their citizens or subjects from killing them with firearms, or other destructive weapons, " north of 50° of north latitude, and between 160° of longitude west and 170° of longitude east from Greenwich, during the period intervening between April 15 and November 1. To prevent the killing within a marine belt of 40 or 50 miles from the islands during that period woidd be ineffectual as a preservative measure. This would clearly be so during the approach of the seals to the islands." And after their arrival there such a limit-of protection would also be insufficient, since the rapid progress of the seals through the water enables them to go great distances from the islands in so short a time that it has been calculated that an ordinary seal could go to the Aleutian Islands and back, in all a distance of 360 or 400 miles, in less than two days." In the same letter Mr. Bayard, referring to the threatened extermination of these seals by pelagic sealers, using firearms, nets, and other destructive implements, said : " That the extermination of the fur seals must soon take place unless they are protected from destruction in Bering Sea is shown by the fate of the animal in other parts of the world in the absence of concerted action among the nations interested for its preservation. * * * It is manifestly for the interests of all nations that so deplorable a thing should not be allowed to occur. As has already been stated, on the Pribilof Islands this Government strictly limits the number of seals that may be killed under its own lease to an American company, and citizens of the United States have, 15 during the past year, been arrested and ten American vessels seized for lulling fur seals in Bering Sea. England, however, has an especially great interest in this matter in addition to that which she must feel in preventing the extermination of an animal which contributed so much to the gain and comfort of her people. Nearly all undressed fur seal skins are sent to London, where they are dressed and dyed for the market and where many of them are sold." U. S. Case, App. Vol. I, pp. 173, 174. This proposal was communicated to the Marquis of Salisbury and became the subject of conference between the representatives of Great Britain, the United States, and Russia. U. S. Case, App., Vol. i, p. 175. A counter proposition was made by the Marquis of Salisbury to the effect that " with a view to meeting the Russian Goverment's wishes respecting the waters surrounding Robben Island," the "whole of Bering Sea, those portions of the Sea of Okhotsk, and of the Pacific Ocean north of north latitude 47° should be included in the proposed arrangement." He further said "that the period proposed by the United States for a closed time—April 15 to November 1—might interfere with the trade longer than absolutely necessary for the protection of the seals, and he suggested October 1, instead of a month later, as the termination of tho period of seal protection." U. S. Case, Vol.1, App., p. 179. The result of the above conference is thus stated in a letter from the Marquis of Salisbury to the British Minister at Washington: "At this preliminary discussion it was decided, provisionally, in order to furnish a basis for negotiation, and without definitely pledging our Governments, that the space to be covered by the proposed convention should be the sea between America and Russia north of the forty- seventh degree of latitude; that the close time should extend from the 15th April to the 1st November; that during that time the slaughter of all seals should be forbidden, and vessels engaged in it should be liable to seizure by the cruisers of any of the three powers, and should be taken to the port of their own nationality for condemnation; that the traffic in arms, alcohol, and powder should be prohibited in all the islands of those seas; and that, as soon as the three powers had concluded a convention, they should join in submitting it for the assent of the other maritime powers of the northern seas. The United States Oharg6 d'Affaires was exceedingly earnest in pressing on us the importance of dispatch, on account of the inconceivable slaughter that 16 had been and still was going on in these seas. He stated that, in addition to the vast quantity brought to market, it was a common practice for those engaged in the trade to shoot all seals they might meet in the open sea, and that of these a great niunber sank so that, their skins could not be recovered." A similar letter was sent to Sir R. Morier, British Ambassador at St. Petersburg. British Case, App., Vol. Ill, p. 196; V. S. Case, App., Vol. I, p. 338. The close time, thus provisionally decided upon, covered, as will be seen, not only Bering Sea, but the entire North Pacific Ocean between America and Russia, north of the forty-seventh degree of latitude. Mr. Bayard, writing to Mr. White, the United States Charg6 d'Affaires at London, under date of May 1,1S88, said: "As you have already been instructed, the Der>artment does not object to the inclusion of the Sea of Okhotsk, or so much of it as may bo necessary, in the arrangement for the protection of tho seals. Nor is it thought absolutely necessary to insist on the extension of the close season till the 1st of November. Only such a period is desired as may be requisite for the end in view. But in order that success may be assured in the efforts of the various governments interested in the protection of the seals, it seems advisable to take, the 15th of October instead of the 1st as the date of the close season, although, as I am now advised, the 1st of November would be safer. V. S. Case, App., Vol. I, p. ISO. In the course of a friendly discussion, in November, 1889, between Mr. Blaine, the American Secretary of State, and Sir Julian Pauuce- fote, British Minister accredited to the'United States, the former (according to the report of that discussion made by the latter to the Marquis of Salisbury) said: "The fur seal was a species most valuable to mankind, and the Bering's Sea was its last stronghold. The United States had bought the islands in that sea to which these creatures periodically resort to lay their young, and now Canadian fishermen step in and slaughter the seals on their passage to the islands, without talung heed of the warnings given by Canadian officials themselves, that the result must inevitably be the extermination of the species. This was an abuse, not only reprehensible in itself and opposed to the interests of maukind, but an infraction of the rights of the United States. It inflicted, moreover, a serious injury on a neighboring and friendly State, by depriving it of the fruits of an industry on which vast sums of money had been expended,, and which had long been pursued exclusively, and for the general benefit. The case was' 17 so strong as to necessitate measures of self-defense for the vindication of the rights of the United States and the protection of this valuable fishery from destruction." Mr. Blaine's tone during this discussion (Sir Julian Pauncefote also reported) was most friendly throughout, manifesting "a strong desire to let all questions of legal right and international law disappear in an agreement for a close season, which he believes to be urgently called for in the common interest." In reply to his observations, the British Minister, among other things, said: " As regarded the question of fact, namely, the danger of extermination of the fur-seal species, and the necessity for a'close season/there was, unfortunately, a conflict of opin-: ion. But if, upon a further and more complete examination of the evidence, Her Majesty's Government should come to the conclusion that a 'close season' is really necessary, and if an agreement should be arrived at on the subject, all differences oh questions of legal rights would ipso facto disappear." British Case, App., Vol. Ill, pp. 350, 351. In a subsequent letter, written in April, 1890 by Sir Julian Pauncefote to Mr. Blaine, the former said: "It has been admitted, from the commencement, that the sole object of the negotiation is the preservation of the fur seal species for the benefit of mankind, and that no considerations of advantage to any particular nation, or of benefit to any private interest, should enter into the question." V. S. Case, App., Vol.1, p. 204, 205. Under date of June 3,1890, Sir Julian, writing to Mr. Blaine, observed: "HerMajesty's Governmenthavealwaysbeen willing, without pledging themselves to details on the questions of area and date, to carry on negotiations, hoping thereby to come to some arrangement for such a close season as is necessary in order to preserve the seal species from extinction, but the provisions of such an arrangement would always require legislative sanction so that the measures thereby determined may be enforced." U. 8. Case, App., Vol. I, p. 220. The Marquis of Salisbury, in a letter to Sir Julian Pauncefote of June 20,1890, inclosing, among other documents, a copy of the above letter of April 16, 1888, addressed to the British representatives at Washington and St. Petersburg: "Her Majesty's Government always have been, and are still, anxious for the arrangement of a convention which shall provide whatever close time in whatever localities is necessary for the preservation of the fur seal species." British Case, ApP-i Vol. HI p. 492; U. S. Case, App.} Vol. I, p. 237^ 11492 2 18 In his letter to Sir Julian Pauncefote of December 17,1890, Mr. Blaine said: "The United States, in protecting the seal fisheries, will not interfere with a single sail of commerce on any sea of the globe. "It will mean something tangible, in the President's opinion, if Great Britain will consent to arbitrate the real questions which have been under discussion between the two Governments for the last four years. I shall endeavor to state what, in the judgment of the Presideut, those issues are: "First. What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior aud up to the time of the cession of Alaska to the United States? " Second. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? "Third. Was the body of water now known as the Bering Sea included in the phrase 'Pacific Ocean' as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering Sea were given or conceded to Great Britain by the said treaty? "Fourth. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering Sea east of the water boundary, in the treaty between the United States aud Russia of March 30,1S67, pass unimpaired to the United States under that treaty? " Fifth. What arenow the rights of the United States as to the fur seal fisheries in the waters of the Bering Sea outside of the ordinary territorial limits, whether such rights grow out of the cession by Russia of any special rights or jurisdiction held, by her in such fisheries or in the Avaters of Bering Sea, or out of the ownership of the breeding islands and the habits of the seal in resorting thither and rearing their young thereou and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States? "Sixth. If the determination of the foregoing questions" shall leave the subject in such position that the concurrence of Great Britain is necessary in prescribing regulations for the killing of the fur seal in any part of the waters of Bering Sea then it shall be further determined: First, how far, if at all, outside the ordinary territorial limits, it is necessary that the United States should exercise an exclusive jurisdiction in- 19 order to protect the seal for the time living upon the islands of the United States and feeding therefrom. Secoud, whether a closed season (during which the killing of seals in the waters of Bering Sea outside the ordinary territorial limits shall be prohibited) is necessary to save the seal-fishing industry, so valuable and important to mankind, from deterioration or destruction. And if so, third, what months or parts of months should be included in such season, and over what waters it should extend." V. S. Case, App., Vol. I, p. 285, 286. The Marquis of Salisbury, in a letter of February 21,1891, to Sir Julian Pauncefote, expressed his assent to the first, second, and fourth questions-propounded by Mr. Blaiue, and, after criticising the third and fifth, proceeded: "The sixth question, which deals with the issues that will arise in case the controversy should be decided iu favor of Great Britain, would perhaps more fitly form the subject of a separate reference. Her Majesty's Government have no objection to refer the general question of a close time to arbitration, or to ascertain by that means how far the enactment of such a provision is necessary for the preservation of the seal species; but any such reference ought not to contain words appearing to attribute special and abnormal rights in the matter to the United States." British Case, App., Vol. Ill, pt. 2, p. 89 ; U. S. Case, App., Vol. I, p. 294. Replying, under date of April 14, 1891, Mr. Blaine observed that although Lord Salisbury suggested a different mode of procedure from that embodied in the sixth question, the President did not understand him as objecting to the question. He restated all the questions, leaving the first, second, fourth, and sixth as originally proposed, and reforming the third and fifth questions so as to read: "Third. Was the body of water now known as the Bering Sea included in the phrase 'Pacific Ocean' as used in the treaty of 1825 between Great Britain" and Russia, and what rights, if any, iu the Bering Sea were held and exclusively exercised by Russia after said Treaty? "Fifth. Has the United States any right, and if so what right, of protection or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?" V. S. Case, App., Vol. I, p. 295. At this period of the negotiations a correspondence intervened with respect to a modus vivendi between the two Governments, regulating the taking of fur seals in Bering Sea during the sealing season of 20 1891. While that matter was being discussed Sir Julian Pauncefote, under date of June 3,1891, notified the Government of the United States that Her Majesty's Government were prepared to assent to the first five questions proposed to be submitted to arbitration in Mr; Blaine's note of April 14,1891. But he added: " Her Majesty's Government can not give their assent to the sixth question formulated in that note. In lieu thereof they propose the appointment of a commission to consist of four experts, of whom two shall be nominated by each Government, and a chairman who shall be nominated by the Arbitrators. The Commission shall examine and report on the question which follows: 'For the purpose of preserving the fur seal race in Bering Sea from extermination, what international arrangements, if any, are necessary between Great Britain and the United States and Russia or any other power ?'" U. S. Case, App., Vol. I, p. 305. Then followed some correspondence between Mr. Wharton, Acting Secretary of State for the United States, and Sir Julian Pauncefote, in reference to the proposed modus vivendi for 1891. The terms of that modus vivendi, as proposed by the United States, were communicated to Lord Salisbury. They were returned by the latter with certain modifications and additions. The fifth paragraph of the agreement proposed by Lord Salisbury was as follows: " (5) A commission of four experts, two nominated by each Government, and a chairman nominated by the Arbitrators, if appointed, and if not, by the aforesaid commission, shall examine and report on thefollowing question: 'What international arrangements, if any, between Great Britain and the United States and Russia or any other power are necessary for the purpose of preserving the fur seal race in the Northern Pacific Ocean from extermination?'" V. S. Case, App., Vol. I, p. 311. It thus aiipears that the British Government proposed, in connection with the modus vivendi for 1891, to ascertain, by means of experts representing the two Governments, what international arrangements were necessary "for the purpose of preserving the fur seal race in the Northern Pacific Ocean from extermination." President Harrison, however, insisted upon an agreement (such as he had proposed) relating only to matters that were appropriate in a modus vivendi. Sir Julian Pauncefote wrote to Mr. Wharton, expressing the regret of the Marquis of Salisbury that his proposed modifications had not been accepted. But he observed: "Nevertheless, in view of the urgency of 21 the case, his lordship is disposed to authorize me to sign the agreement in the precise terms formulated in your note of June 9, provided the question of a joint commission be not left in doubt, and that your Government will give an assurance in some form that they will concur in a reference to a joint commission to ascertain what permanent measures are necessary for the preservation of the fur seal species in the Northern Pacific OceanP V. S. Case, App., Vol. I, p. 315. To this letter Mr. Wharton replied on the same day, as follows: "Sir: I have the honor to acknowledge the receipt of your note of to-day's date, and in reply I am directed by the President to say that the Government of the United States, recognizing the feet that full and adequate measures for the protection of seal life should embrace the whole of Bering Sea and portions of the North Pacific Ocean, will have no hesitancy in agreeing, in connection with Her Majesty's Government, to the appointment of a joint commission to ascertain what permanent measures are necessary for the preservation of the seal species in the waters referred to, such an agreement to be signed simultaneously with the convention for arbitration, and to be without prejudice to the questions to be submitted to the arbitrators. A full reply to your note of June 3 relating to the terms of arbitration will not belong delayed." U. S. Case, App., Vol. I, pp. 315,316. Under date of June 13, 1891, Sir Julian Pauncefote wrote to Mr. Wharton: " I lost no time in telegraphing to the Marquis of Salisbury the contents of your note of June 11 conveying the assent of your Government to the appointment, iu connection with Her Majesty's Government, of a joint commission for the purpose mentioned in my note to you of the same date, such agreement to be signed simultaneously with the convention for arbitration and to be without prejudice to the questions to be submitted to the arbitrators. I informed his lordship at the same time that, in handing me the note under reply, you had assured me that the President was anxious that the commission should be appointed in time to commence its work this season, and that your Government would, on that account, use their utmost efforts to expedite the signature of the arbitration convention. I now have the honor to inform you that I have this day received a telegraphic reply from Lord Salisbury in which, while conveying to me authority to sign the proposed agreement for a modus vivendi contained in your note of June 9, his lordship desires me to place on record that it is signed by me on the clear understanding that the joint commission will be appointed without 22 delay. On that understanding, therefore, I shall be prepared to attend at the State Department for the purpose of signing the agreement at such time as you may be good enough to appoint." U~. S. Case, Vol. I, App., p. 316. On the same day Mr. Wharton wrote to Sir Julian Pauncefote: " The President directs me to say, in response to your note of this date, that his assent to the proposition for a joint commission, as expressed in my note of June 9, was given in the expectation that both Governments would use every proper effort to adjust the remaining points of difference in the general correspondence relating to arbitration, and to agree upon the definite terms of a submission and of the appoin tment of a joint commission without unnecessary delay. He is glad that an agreement has finally been reached for the pending season; and I beg to say that if you will call at the Department at 10 o'clock Monday next, I will be glad to put into writing and give formal attestation to the modus vivendi which has been agreed upon." U. S. Case, App., Vol. I, p. 316. Under the assurance thus exacted by and given to the British Government the modus vivendi for 1891 was signed and the negotiations in respect to the matters to be submitted to arbitration were resumed. Mr. Wharton, under date of June 25,1891, addressed a communication to Sir Julian Pauncefote, in which, after referring to the agreement of the parties in respect to the first five questions and to the objection that Lord Salisbury had made to the sixth question, as formulated by Mr. Blaine, said: " I am now directed by the President to submit the following, which he thinks avoids the objection urged by Lord Salisbury: (6) If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurreuceof Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea, the arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend; and to aid them in that determination the report of the Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government" may submit. The contracting parties furthermore agree to cooperate in securing the adhesion of other powers to such regulations." 23 In the same letter Mr. Wharton submitted a proposal for the appointment of a Joint Commission by the two Governments, in accordance with the assurance given by the Presidcn t in the letter of Jane 11,1891, from Mr. Wharton to Sir Julian Pauncefote. The terms of this proposal were accepted by Lord Salisbury, and they appear in Article IX of the treaty. U. S. Case, App., Vol. I, pp. 319,320. The British Government accepted the sixth question as thus formulated, and that question constitutes Article VII of the treaty. I do not find in any part of the diplomatic correspondeuce any criticism by representatives of the British Government of that question as last formulated. Other evidence throws light npon the inquiry whether it was not well understood by the British Government, after the signing of the modus vivendi for 1891, if not before, that the inquiry as to what was necessary to protect the fur seal raee embraced both Bering Sea and the North Pacific Ocean. The commission issued June 15, 1891, by Her Majesty to the two commissioners appointed to investigate seal life recited that they were appointed " for the purpose of inquiry into the conditions of seal life and the precautions necessary for preventing the extermination of the fur seal species in Bering Sea and other parts of the North Pacific Ocean.n Substantially the same recitals were made in the letter of iD8tructions issued to those commissioners by the Marquis of Salisbury uuder date of June 24,1891. Subsequently, on the 15th January, 1892, after the two Governments had agreed in writing upon the terms embodied in and constituting Articles VI, VII, VIII, and IX of the treaty, the Marquis of Salisbury issued another letter of instructions to the British Commissioners, in which he said: "There are, however, a few points to which Her Majesty's Government consider it desirable that your special attention should be directed. You will observe that it is intended that the report of the Joint Commissioners shall embrace recommendations as to all measures that should be adopted for the preservation of seal life. For this purpose it will be necessary to consider what Regulations may seem advisable, whether within the jurisdictional limits of the United States and Canada, or outside those limits. The Regulations which the Commissioners may recommend for adoption within the respective jurisdictions of the two countries will, of course, be matter for the consideration of the respective Governments, while the regulations affecting waters outside the territorial 24 limits will have to be considered under clause 6 of the Arbitration Agreement* [Art. 7 of the Treaty] in the event of a decision being given by the Arbitrators against the claim of exclusive jurisdiction put forward on behalf of the United States. The Report is to be presented in the first instance to the two Governments for their consideration, and is subsequently to be laid by those Governments before the Arbitrators to assist them in determining the more restricted question as to what, if any, Regulations are essential for the protection of the fur- bearing seals outside the territorial jurisdiction of the two countries." British Comm. Report, p. vn. And the report of these commissioners, presented to the British Government June21,1892, recites that they were appointed to inquire "into the conditions of seal life and the precautions necessary for preventing the extermination of the fur seal species in Bering Sea and other parts of the Worth Pacific Ocean." In the same report will be found "a general view of the conclusions at which we [the British Commissioners] have arrived as to the condition of seal life in the North Pacific Ocean, and as to the measures necessary for the preservation of the fur seal industry." It may be stated, in addition, that the American Commissioners, Profs. Mendenhall and Merriam, were appointed by the President "to proceed to the Pribilof Islands and to make certain investigations of the facts relative to seal life, with a view to ascertain what permanent measures are necessary for the preservation of the fur seal in Bering Sea and the North Pacific Ocean." TJ. S. Case, 311. It thus appears from the diplomatic corresp'ondence before us and by the action of the two Governments— 1. That each Government, from the beginning to the end of the negotiations resulting in the treaty, expressed not only an earnest desire that the fur seals be protected against extermination, but their willingness to adopt such measures as were necessary to prevent the destruction of these animals by its citizens or subjects, and that their action should be concurrent; 2. That the British Government, in the early period of these negotiations, agreed, provisionally and as a basis'of negotiations, that a closed time be established, from April 1 to November 1, during which the slaughter of all seals be forbidden "in the sea between America and Russia north of the forty-seventh degree of latitude;" * This agreement was signed December 18, 1891. The treaty was not signed until February 29, 1892. 25 3. That while the original proposition of Lord Salisbury was for a joint commission to ascertain what international arrangements were necessary " for the purpose of preserving the fur seal race in Bering Sea from extermination," he subsequently modified that position, so as to require that commission to ascertain what international arrangements were necessary " for the purpose of preserving the fur sealing Northern Pacific Ocean from extermination;" 4. That the British Government made a condition of its agreeing to the proposed modus vivendi for 1891, relating to Bering Sea, that the President of the United States would give an assurance in some form that his Government would concur in a reference to a joint commission "to ascertain what permanent measures are necessary for the preservation of the fur seal species in the Northern Pacific Ocean," which assurance the President formally gave to the British Government, explicitly stating at the time that the Government of the United States recognized "the fact that full and adequate measures for the protection of seal life should embrace the whole of Bering Sea and parts of the North Pacific Ocean; " and, 5. That the Government of the United States, having in view the explicit declaration of Sir Julian Pauncefote, that "the sole object of the negotiation is the preservation of the fur seal species for the benefit of mankind," and the equally explicit declarations of Lord Salisbury that her Majesty's Government was anxious for the arrangement of a convention which "shall provide whatever close time in whatever localities is necessary for the preservation of the fur seal species" and ascertain, by arbitration, how far such a close time was necessary "for the preservation of the fur seal species," and in order that the Arbitrators, if appointed, might consider measures for the protection of seal life "throughout the whole of Bering Sea and portions of the Northern Pacific Ocean," modified the sixth question, as originally formulated, aud, instead of concurrent regulations "for the killing of the far seals in any part of the Bering Sea," outside of ordinary territorial limits, as was first proposed, provided for concurrent regulations (if the concurrence ot Great Britain was found to be necessary) "for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea." It could not have escaped the attention of Lord Salisbury that the effect of this modification of the sixth question was, beyond all question, to enable this Tribunal to prescribe concurrent regulations to protect 26 and preserve all fur seals that habitually resorted to the islands of the United States in Bering Sea, although they might not remain during the whole of each year in that sea. And the modification which the United States made of the sixth question brought it into harmony with the fifth question, previously assented to, which involved an inquiry as to whether the United States has "any right, and if so what right, of protection or property in the fur seal frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?" These seals do not the less frequent those islands, nor the less habitually resort to Bering Sea, because their habit—as both Governments well knew—was, in the fall of every year, at about the same time, to leave their breeding grounds at the Pribilof Islands and go to the south of the Aleutian Islands into the North Pacific Ocean, from which ocean,, each year and at the same time, they returned to Bering Sea and to their established breeding grounds on the islands of St. Paul and St. George. But this is not all that is suggested by the modification made of the sixth question. Recurring to the words of that question, in its original form, it will be seen that one of the matters to be determined in the event tho concurrence of Great Britain was necessary in prescribing regulations for the "killing" of fur seals in the waters of Bering Sea was whether a " closed season (during which the killing of fur-seals iu the waters of Bering Sea outside the ordinary territorial limits shall be prohibited) is necessary to save the seal-fishing industry, so valuable and important to mankind, from deterioration or destruction." Here we have the suggestion by the United States of a closed season, during which the taking of those seals might be entirely prohibited. What was the reply of the Marquis of Salisbury to this suggestion? It was that if the reference to arbitration did not contain "words which attribute special and abnormal rights to the United States," Her Majesty's Governmenthad "no objection to refer the general question of a closed time to arbitration, or to ascertain by that means how far the enactment of such a provision is necessary for the preservation of the seal species." In other words, he did not object to a prohibition of pelagic sealing during such closed time as. was found to be necessary for the preservation of the species. Aud it is a fact of much significance that while the sixth question referred to the concurrence of Great Britain in prescribing regulations for the "killing" of the fur seals in the waters of Bering Sea that question, as finally propounded, 27 omitted any words concerning regulations for the killing of seals in any particular waters, but made the establishment of regulations by the Arbitrators depend alone upon their determination in respect " to the exclusive jurisdiction of the United States," and the necessity, resulting from that determination, of prescribing concurrent regulations, not for the killing of fur seal, but "for the proper protection and preservation of the fur seal in, or habitually resorting to, the waters of Bering Sea." This change of phraseology seems plainly to indicate that the main purpose was to protect the seals by whatever means were found to be necessary. And such must have beeu the desire; for what object could there have been to regulate the taking of animals unless their existence was to be preserved? Much stress has been laid upon isolated passages in communications emanating from the State Department of the United States in which it was said, in different forms of language, that the area of contention between Great Britain and the United States related only to Bering Sea. That statement was, in a certain sense, strictly accurate, for the dispute between the two Governments arose out of seizures made in that sea. The legality of those seizures was the principal and vital matter then in controversy. No seizures had then been made in the North Pacific Ocean. And these statements, as to the area of contention, were made quite naturally in view of the fact, plainly disclosed by the evidence, that Mr. Blaine, at one time and before the facts in connection with seal life iu Bering Sea were fully developed, was of opinion that a zone of 20 marine leagues around the Pribilof Islands, within which pelagic sealing should be prohibited, would be all that was necessary in order to preserve these fur seals from extermination. Some stress is also laid on the fact that the modus vivendi for 1891 and thatfor 1892 only related to Bering Sea; and, consequently, it is argued, the two governments did not contemplate regulations applicable to the Northern Pacific Ocean. Those who so argue forget that the modus vivendi for 1891 was not signed until June 15,1891, by which time the sealing vessels had all left for the sealing grounds, and a large number, if not the greater part, of the fur seals had then passed from the North Pacific Ocean into Bering Sea, and probably reached their breeding grounds on the Pribilof Islands. In respect to the modus vivendi for 1892 it need only be said that Mr. Blaine endeavored to have it extended to the North Pacific Ocean- as well as to Bering Sea. He was, no doubt, moved to this course by the fact that the two Govern- 28 lnents, as early as December 18,1891, had signed the text of the articles that were to go into the treaty, thereafter to be put in form, and by one of which articles it was required that the regulations prescribed by the arbitrators should look to the proper protection and preservation, not simply of the fur seals in Bering Sea, but such as habitually resorted to that sea. He was also aware of the fact that as early as June 11,1891, in giving assurance that he would unite in the appointment of a Joint Commission to ascertain what measures were necessary for the preservation of these fur seals, the President had distinctly informed the British Minister that adequate measures to that end " should embrace the whole of Bering Sea and portions of the North Pacific Ocean." So, in his letter to Sir Julian Pauncefote of February 24, 1892, before the treaty, was signed, Mr. Blaine, referring to the proposed modus vivendi for 1892, said: "If Her Majesty's Government would make her efforts most effective, the sealing in the North Pacific Ocean should be forbidden; for there the slaughter of the mothers heavy with young is greatest. This would require a notice to the large number of sealers who are preparing to go forth from British Columbia. The number is said to be greater than ever before, and without any law to regulate. the killing of seals the destruction will be immense. All this suggests the need of an effective modus. Holding an arbitration in regard to the rightful mode of taking seals, while their destruction goes forward, would be as if, while an arbitration to the title of land were in progress, one party should remove all the timber." Mr. Blaine would not have suggested that, pending the arbitration, the modus for 1892 be made applicable both to Beriug Sea and the North Pacific Ocean, if he had not supposed that-the treaty which he was about formally to conclude on behalf of his Government, invested the Arbitrators with authority to establish regulations applicable to all the waters traversed by these seals in their migration routes from and to the Pribilof Islands. Two days after writing the letter last referred to, Mr. Blaine communicated to Sir Julian Pauncefote a copy of a telegram, that day received by him from the United States consul at Victoria, in relation to the large number of sealing vessels about to sail, and said: " I think from this you will see that if we do not come to an understanding soon, there will be no need of our agreement relating to seals in the North Pacific or in the Bering Sea." TJ. S. Case, Vol. 1, App. 353-4. Sir Julian Pauncefote replying, under date of February 28, 1892, 29 to Mr. Blaine's note of February 24, referred to the statement of the latter that "if Her Majesty's Government would make their efforts most effective the sealing in the North Pacific Ocean should be forbidden." If, as is now contended, the treaty then about to be signed, and which was signed the next day, did not contemplate regulations for the preservation of these fur seals while they were in the North Pacific Ocean on their migration routes, it would have been easy for the British Minister to state that fact as a conclusive reason why the modus vivendi for 1892 should only apply to Bering Sea. But no such reason was assigned for the refusal of the British Government to extend the modus for that year to the North Pacific Ocean. The United States Government was, unfortunately, in such condition at that time, iu respect to the arbitration, that it was compelled to accept a modus for 1892, applicable only to Bering Sea, or leave both that sea and the North Pacific Ocean entirely open to pelagic sealing pending the arbitration. Notwithstanding the distinct declaration made to the United States by the British Government, through its representative at Washington, that "the sole object of the negotiation is the preservation of the fur seal species for the benefit of mankind, and that no considerations of advantage to any particular nation, or of benefit to any private interest, should enter into the question;" notwithstanding the explicit assurance, given by the Marquis of Salisbury, that Her Majesty's Gov-, ernment " always have been, and are still, anxious for the arrangement of a convention which shall provide whatever close time in whatever localities is necessary for the preservation of the fur seal species;" and, notwithstanding the express injunction of the treaty that the Arbitrators,. upon finding the concurrence of Great Britain necessary to the establishment of regulations "for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea," shall "determine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend," the contention now by Her Majesty's Attorney General and his learned associates, is that the Tribunal is without authority or jurisdiction, under the treaty, to prescribe regulations applicable to the North Pacific Ocean, or any regulations which in terms, or by their necessary operation, will result in the prohibition of pelagic sealing. It is contended that no such power can be exerted by this Tribunal, even if the Arbitrators find from the evidence that 30 this race of animals can only be properly protected and preserved by the absolute cessation, during the sealing season, of the hunting and taking of these fur-seals in the waters both of Bering Sea and the North Pacific Ocean traversed by them outside the jurisdictional limits of the respective governments. These two contentions are opposed by the United States, which insists that,-according to the evidence, the continuance of pelagic sealing in the open waters either of Beriug Sea or of the Northern Pacific Ocean, during the months of the year when these seals may be taken, is absolutely certain to,bring about the extermination of the race in the course of a few years; and that under the power to determine the rights of the citizens or subjects of the two governments, as regards the taking of fur seal in, or habitually resorting to, Bering Sea, and to prescribe concurrent regulations for the proper protection aud preservation of such seals, and to declare over what waters such regulations should extend, it is competent for this Tribunal, and is its plain duty, under the treaty, to prescribe regulations looking to a prohibition of pelagic sealing in any waters outside the jurisdictional limits of the respective governments which are traversed by these seals in their regular semiannual migration from and to the Pribilof Islands. In harmony with the views upon regulations which the counsel for Great Britain present, regulations have been submitted in behalf of Her Britannic Majesty, which, if approved, would establish a zone of 20 miles around the Pribilof Islands within which no seal hunting shall be permitted at any time, nor rifles nor nets used by sealers, aud a closed season from the 15th September to the 1st July for Bering Sea. Under such regulations pelagic sealing could be carried on without restraint, and with shotguns—confessedly a destructive, if not the most destructive mode of taking seals—not only in the Horth Pacific Ocean during the entire, season, when seals can be taken in that ocean, but in Bering Sea outside the proposed zone of 20 miles around Pribilof Islands between July 1 and September 15. The regulations suggested, in behalf of the United States, call for a prohibition, during the entire year, of pelagic sealing in all the waters of Bering Sea and of the North Pacific Ocean, outside the jurisdictional limits of the two Governments, north of the thirty-fifth degree of north latitude, and east of the one hundred and eightieth meridian of longitude from Greenwich. These regulations, it is admitted, cover all the waters habitually traversed by these fur seals in 31 their migration routes from and to the Pribilof Islands, and, if approved, would result in the prohibition practically of all hunting and taking of these seals outside of territorial waters. Much was said, in argument, as to the authority of the Tribunal to prescribe regulations that would entirely prohibit pelagic sealing during the mouths in each year when, by reason of the weather and the condition of the seas, the hunting and taking of seals is impracticable. The British counsel contended that it is beyond the power of the Arbitrators to prescribe regulations of that character. They argued that the Tribunal could not do indirectly what they could not do directly; that prohibition, in terms, or by the necessary operation of regulations, is not regulation; that the power to regulate is not a power to prohibit. This view, it may be observed, would place it beyond the power of this Tribunal to prescribe such regulations as those decided upon, provisionally, in 1888, between the diplomatic representatives of Great Britain, the United States, and Russia, as a basis of negotiation, namely (to use the words of Lord Salisbury), " that the space to be covered by the proposed convention should be the sea between America' and Russia, north of the forty-seventh degree of latitude; that the close time should extend from the 15th April to the 1st November; that during that time the slaughter of all seals should be forbidden." When enforcing the view last stated, counsel asked us whether a power given by the legislative department to a municipal corporation to regulate, within its limits, the sale of ardent spirits would give to such corporation authority to prohibit all sales of such spirits. Perhaps not. But the case put does not meet the one before the Tribunal. A legislative enactment of the kind referred to would show upon its face an intention to permit some sales of ardent spirits, under regulations to be prescribed by the municipal corporation. It might well be that a prohibition of all sales, by refusing all licenses to sell, would in the case supposed, defeat the intention of the legislature. The rule of interpretation which has been invoked has no application to the present case. If the treaty empowered this Tribunal to regulate pelagic sealing it could, not unreasonably, be contended that the two Governments had no purpose to prohibit altogether and under all circumstances, the hunting of fur seals in the open seas, but only to authorize the regulation of that particular mode of taking these animals. The power given is to prescribe such concurrent regulations " outside the jurisdictional limits of the resj>ective Governments" as may be necessary "for the 32 proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea," and to declare "over what waters such regulations should extend." The end to be accomplished is the proper protection and preservation of the seals which habitually resort to that sea. Clearly a regulation which did not look to that end would fall short of what the treaty contemplated. The plain duty, therefore, of this Tribunal is to provide by concuri ent regulations for the preservation of these animals, if regulations of that character are necessary to accomplish such a result. And that duty can be performed by means of regulations, which the two Governments are under solemn obligation to respect and to enforce against their respective citizens or subjects. I will add that if this Tribunal is without power to prescribe such regulations as are necessary for the proper protection and preservation of this race of animals, theu the result of its proceedings can not possibly be, as both countries intended it should be, "a full, perfect, aud final settlement of all the questions referred to the Arbitrators." It is mere play upon words to say, in respect to this treaty, that prohibition is not regulation, and that regulations or rules, calling in express words or by their operation for a prohibition of pelagic sealing, are beyond the powers given to this Tribunal, even if it appeared that regulations of that character are absolutely necessary to prevent the extermination of the fur-seals frequenting the Pribilof Islands. The manifest result of this interpretation of the treaty is that while the Tribunal may prescribe regulations for the proper protection and preservation of these animals; the business of taking them in the high seas may still be carried on even though it should involve the destruction of the species. Can anyone believe that Great Britain would have asked the United States to so stultify itself as to sign a treaty which, either in words or by necessary implication, would have admitted of such a result? Does anyone believe that a treaty rendering such a result possible would have been signed by any diplomatic representative of the United States, or would have been approved by its President or by any member of the Senate of the United States? I express at this time no opinion as to what regulations are in fact, and upon a view-of all the evidence, necessary to the proper protection and preservation of those fur seals. Nor do I ask the Tribunal now to make any declaration upon the weight of the evidence touching that or any other issue. I am without knowledge of the views of 33 the Arbitrators upon the various questions of right or issues of fact to be determined by them, aud I ask no expression of opinion touching any of those questions in advance of their being reached in the regular course of our proceedings in conference. But as indicating the grounds upon which a declaration is asked at this time, as to the powers of this Tribunal under the treaty, I may say that there is a large amount of evidence in the record tending to show that the hunting and taking of these fur seals, according to the methods now practiced by pelagic sealers in the open waters either of the Bering Sea or of the North Pacific Ocean, if continued, will certainly result at no distant day in the complete extermination of the race. My purpose is only to show that the power to prescribe regulations, which expressly or by their practical operation will prohibit pelagic sealing, was intended to be conferred and has been conferred by the treaty, with respect to the waters both of Bering Sea and of the North Pacific Ocean, traversed by these fur seals in their going from and returning to the Pribilof Islands. This Tribunal, I insist, has not been constituted for the purpose of conserving the interests of the Canadian and American sealers who, within the past ten years, have devised a mode of taking these fur seals in the open seas, by means which, all concede, are destructive, because not admitting of any discrimination as to sex, ner, still less, of any discrimination between females that are heavy with young and those that have not been impregnated. We are not here with authority to make an award, simply by way of compromise, so that each side in this dispute may have an opportunity to say that it has not been entirely unsuccessful in its contentions before this Tribunal. Our authority has a much wider field of operation. If the repeated avowals of the two nations, who seek an amicable settlement of their differences by means of arbitration, are not to be wholly discredited, we are here, in their names, and by their joint authority, to protect aud preserve this race of animals from extermination if we find that concurrent regulations to that end are necessary. A failure or refusal to exercise the power, plainly given, to prescribe such regulations as are necessary to prevent the extermination of this race of useful animals, will, in my judgment, wholly defeat the principal object for which this Tribunal was created. Matters involving the jurisdiction and power of the Tribunal to deal with every aspect of this case, as it may affect the supreme object of 11492 3 34 the protection and preservation of these fur seals, should, I submit, be passed upon before the Arbitrators enter upon the consideration of the several questions of right submitted for determination. The duty of this Tribunal to proscribe regulations arises when the determination of the questions submitted to us, "as to the exclusive jurisdiction of the United States," leaves the subject in such position "that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea." Such are the express words of Article VII. If the United States has not such exclusive jurisdiction—that is, such sovereign power—as'enables it to enact laws, binding upon all, whether citizens of the United States or subjects of other countries, for the protection and preservation of these seals, in all the waters both of Bering Sea and of the North Pacific Ocean traversed by them—aud no such claim has been preferred before us— then we know,' at this time, that the concurrence, of Great Britain is necessary to the establishment of regulations, whatever conclusion may be reached upon the issue as to property and protection presented by the fifth question of Article VI. If it be held that the United States has no right of property in these seals, aud no right to protect them when found outside the ordinary three-mile limit, then the duty to prescribe concurrent regulations becomes manifest. But regulations of that character are, in my judgment, necessary though, perhaps, not equally so, for the proper protection and preservation of the seals, if the.Tribunal holds that such right of property or protection does appertain to the United States; for, in that case, the only means which the Government of that country could employ would be those which the law permits to individual owners of property for its protection. But that would be inadequate protection, without the concurrence of Great Britain, manifested by such legislation as would bind its subjects wherever they may be, and counsel them, under proper penalties, to respect any right of property or protection accorded to the United States by the award or decision of this Tribunal. So that it is certain that we must come to the subject ■of regulations for the proper protection and preservation of this race of animals. If the Arbitrators believe that the race will be soon exterminated unless pelagic sealing is prohibited, in both Bering Sea and the North Pacific Ocean, during all the months when they may be taken in the 35 open waters, but that the Tribunal is without power, under the treaty, to prescribe regulations of that character, is it not, as I have heretofore suggested, our duty to suspend further action for a time, in order that- the two Governments may have an opportunity to so amend the treaty, under which we are proceeding, as to enable us to preserve this race from extermination? Shall we ignore the fact that both Governments have protested, in every form of language, that they desired the preservation of these animals without reference to considerations of profit or advantage to any nation or to individuals of any nation ? Shall it be assumed that either of the great nations before us wish the Tribunal to conclude its labors and adjourn without prescribing concurrent regulations that are, iu fact, necessary for the preservation of these seals? As these questions touching the competency of the Tribunal to deal with the subject of the preservation of these animals have been distinctly raised by Great Britain and must be decided, I submit that they should be examined and decided, at the threshold of our proceedings in conference. Senator Morgan authorizes me to say that he concurs in this opinion. [At the close of the discussion Senator Morgan offered, as a substitute for the motion of Mr. Justice Harlan, thefollowing: "This Tribunal of Arbitration is empowered by the Treaty of February 29, 1892, between the United States and Great Britain, to determine what concurrent regulations are proper to be adopted and % enforced by the action of the respective governments, applicable to their respective citizens or subjects, outside of their respective territorial limits and outside oZ Bering Sea, for the protection and preservation of fur seals in, or habitually resorting to, Bering. Sea." This substitute was accepted by Mr. Justice Harlan, and was adopted, one Arbitrator voting in the negative. It was agreed that the consideration of the subject embraced in the second branch of the original motion of Mr. Justice Harlan be postponed uutil the Tribunal should roach the subject or regulations in order, and should determine that regulations were made necessary by the conclusions reached-upon other questions named in the treaty.] part n. THE MERITS OF THE VARIOUS QUESTIONS SUBMITTED TO THE TRIBUNAL FOR DETERMINATION. 1. GENERAL STATEMENT OF THE FACTS OUT OF WHICH THE PRESENT CONTROVERSY BETWEEN THE TWO NATIONS AROSE, AND Till! 1IBSTORY OF THE NEGOTIATIONS RESULTING IN THE TREATY OF FEBRUARY 29, 1892. Before entering upon the examination of the important questions submitted for determination, it will be weU to recall the general course of the negotiations that preceded the making of the treaty under which we are proceeding, and the principal facts out of which the present controversy between the two governments originated. Some of these facts have already been stated by me when considering, at a former session of this Tribunal, the question of its competency to make regulations applicable to the North Pacific Ocean, and which also, in terms,. or by their necessary operation, would put an end to pelagic sealing in the' waters traversed by the Pribilof seals. • But it is well, eveu at the risk of repetition, to restate them in this connection. The controversy had its origin in certain seizures of vessels, alleged to belong to, or to be in the possession or under the control of, British subjects who were engaged, at the time, in the waters of Bering Sea outside of the ordinary limits of territorial jurisdiction, in hunting and taking fur-seals which had their breeding grounds on the islands of St. Paul and St. George, two of the four islands in Bering Sea constituting the Pribilof group. The seizures referred to were made in 1886,1887, and 1889 by public armed vessels acting under instructions from the Executive Department of the Government of the United States. The Pribilof Islands are situated in Bering Sea, latitude 57° north, longitude 170° west from Greenwich, about 300 miles from Cape Newen- ham, on the mainland of Alaska Territory, and about 200 miles north ot the Aleutian Islands, tho latter islands extending several hundred 36 37 miles westwardly and southwesterly from the peninsula of Alaska into the Pacific Ocean. They were discovered in 1786 and 1787 by Gerassim Pribilof, a Russian navigator, while he was endeavoring to ascertain upon what shores the herd of fur seals habitually landed, which had been observed to pass once a year northwardly, and once a year southwardly, through the channels between the Aleutian Islands. Those islands, after their discovery, remained continuously in the possession of Russia until 1867. In that year the Emperor, by treaty, ceded to the United States "all the territory and dominion" then possessed by him " on the continent of America and in the adjacent islands," and contained within certain defined geographical limits. The eastern limit of the territory and dominion so conveyed was declared to be the line of demarcation between the Russian and British possessions in North America, as established by articles III and IV of the treaty, which wiU be hereafter referred to, between Russia and Great Britain of February (28) 16, 1825. The western limit is thus defined by the treaty of 1867: "The western limit within which the territories and dominion conveyed are contained passes through a point in Bering's Straits on the paraUel of 65° 30' north latitude, at its intersection by the meridian which passes midway between the Islands of Kruzenstern or Ignalook, and the Island of Ratmanoff or Noonarbook, and proceeds- due north, without limitation, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest, through Bering's Straits and Bering's Sea so as to pass midway between the northwest point of the Island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of 172, west longitude; thence, from the intersection of that meridian, in a southwesterly direction, so as to pass midway between the Island of Attu and Copper Island of the Komandorski couplet, a group in the North Pacific Ocean, to the meridian of 193° west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of that meridian." That treaty further provided: " The cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders; and the session hereby made conveys all the rights, franchises, 38 and privileges now belonging to Russia in the said territory or dominion and appurtenances thereto." (15 U. S. Stat., 539.) The Pribilof Islands are east of the line thus defined as the western limit within which are the territory and dominion conveyed by Russia to the United States. By an act of the Congress of the United States approved March 3, 1869, the islands of St. Paul and St. George in Alaska were declared "a special reservation for Government purposes," and it was made unlawful for any person to land or remain on either of them, except by authority of the Secretary of the Treasury." This statute was followed by an act approved July 1, 1870, the expressed object of which was to prevent the extermination of fur-bearing animals in Alaska. The provisions of the acts of 1869 and 1870 are reproduced in the Revised Statutes of the United States of 1873. Those sections* show the extent of authority and jurisdiction, which has been asserted by the United "Sec. 1954. Tho laws of the United States relating to customs, commerce, and navigation are extended to and over all the mainlands, islands, and waters of the territory ceded to the United States by the Emperor of Russia by treaty concluded at Washington on the thirtieth day of March, anno Domini one thousand eight hundred and sixty-seven, so far as the same may he applicable thereto. Sec. 1956. No person shall kill any otter, mink, marten, sable, or fur-seal, or other fur-beariug animal within the limits of Alaska Territory, or in tho waters thereof; and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than six months, or both; and all vessels, their tackle, apparel, furniture and cargo, found engaged in violation of this section shall be forfeited. But the Socretary of the Treasury shall have power to authorize the killing of any such mink, marten, sable, or other fur-beariug animal, except fur-seals, under such regulations as he may prescribe; and it shall be tho duty of the Socretary to prevent the killing of any fur-seal, and to provide for the execution of the provisions of this section until it is otherwise provided by law; nor shall he grant any special privileges undorthis section. Sec. 1959. The islands of Saint Paul and Saint George in Alaska, are declared a special reservation for Government purposes; and until otherwise provided bylaw it shall he unlawful for any person to land or remain on either of those islands, except by tho authority of the Secretary of the Treasury; and any person found on either of those islands contrary to theprovisions hereof shall be summarily removed; and it shall be tho duty of the Secretary of "War to carry this section into effect. Sec. 1960. It shall be unlawful to kill any fur-seal upon tho islands of Saint Paul and Saiut George, or in the waters adjacent thereto, except during the months of June, July, September, and October iu each year; and it shall be unlawful to kill such seals at any time by the use of firearms, or by other means tending to drive tho seals away from those islands; but the natives of the islands shall have the privilege of killing^such young seal as may be necessary for their own food and 39 States, over the territory and waters within the limits referred to in the treaty of 1867. By a subsequent act, passed March 2,1889, section 1956 of the Revised Statutes, forbidding the killiug of " any otter, mink, marten, sable or fur seal, or other fur-bearing animals within the limits of Alaska Territory, or in the waters thereof," was declared " to include and apply to all the dominion of the United States in the waters of Bering Sea;" and it was made the duty of the President, at a timely season in each year, to issue his proclamation warning all persons against entering said waters for the purpose of violating the provisions of said section, and to cause one or more vessels of the United States to diligently cruise said waters and arrest aU persons, and seize aU vessels found to be, or to have been, engaged in any violation of the laws of the United States therein. In execution of the above statutory provisions, .the Secretary of the clothing during other months, and also such old seals as may be required for their own clothing, and for the manufacture of boats for their own use; and the killing in such cases shall be limited and controlled by such regulations as may be prescribed by the Secretary of the Treasury. Sec. 1961. It shall be unlawful to kill any female seal, or any seal less than one year old, at any season of the year, except as above provided; and it shall also be unlawful to kill any seal in the waters adjacent to the islands of Saint Paul and Saint George, or on the beaches, cliffs or rocks where they haul up from the sea to remain; and every person who violates the provisions of this or the preceding section shall ho punished for each offense by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment not more than six months, or by both such fine and imprisonment; and all vessels, their tackle, apparel, and furniture, whose crews are found engaged in the violation of either this or the preceding section; shall be forfeited to the United States. Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur-seals which may be killed for their skins upon the Island of Saint-Paul is limited to seventy-five thousand per annum," and the number of fur-seal which may be killed for their skin upon the Island of Saint George is limited to twenty-five thousand; but the Secretary of the Treasury may limit the right of killing, if it becomes necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the Government as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section. Sec. 1963. When the lease heretofore made by the Secretary of the Treasury to the Alaska Commercial Company of the right to engage.in taking fur-seals on tho islands of Saint Paul and Saint George, pursuant to the act of tho first July, 1870, chapter one hundred and eighty-nine, or when any future similar lease expires,or is surrendered, forfeited or terminated, the Secretary shall lease to proper and responsible 40 Treasury has, from time to time, leased to an incorporated company the right to engage in the business of taking fur seals on the islands of St. Paul and St. George, under regulations prescribed by that officer. It was under this state of the law, so far as the statutes of the United States were concerned, that seizures of vessels were made. The British Government protested against those seizures as an unauthorized interference with the rights of its subjects on the high seas. Its Minister at Washington, Sir Lionel Sackville West, in a letter dated January 9,1887, and addressed to Mr. Bayard, the American Secretary of State, said: "It is unnecessary for me to allude further to the information with which Her Majesty's Government have been furnished respecting these seizures of British vessels»in the open seas, and which for some time past has been in the possession of the United States Gov- parties, for the best advantage of the United States, having dno regard to the interest of the Government, the native inhabitants, their comfort, maintenance and education, as well as to the interest of the parties heretofore engaged in trade, and tho protection of the fisheries, the right of taking far-seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals, for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and seoured by a deposit of United States bonds to that amount; and every such lease shall be duly executed in duplicate, and shall not be transferable. Sec. 1964. The Secretary of the Treasury shall take from the lessees of such islands in all cases a bond, with securities, in a sum not less than five hundred thousand dollars, conditioned for the faithful observance of all the laws and requirements of Congress and the regulations of the Secretary of the Treasury touching the taking of fur-seals and the disposing of the same, and for the payment of all taxes and duos accruing to the United States connected therewith. Sec. 1965. No persons other than American citizens shall be permitted, by lease or otherwise, to occupy the islands of Saint Paul and Saint George, or either of them, for the purpose of taking the skins of fur-seals therefrom, nor shall any foreign vessel be engaged in taking such skins; and the Secretary of the Treasury shall vacate and declare any lease forfeited if the same be held or operated for the use, benefit, or advantage, directly or indirectly, of any persons other than American citizens.' Sec. 1967. Every person who kills any fur-seal on either of these islands, or in the waters adjacent thereto, without authority of the lessees thereof; and every person who molests, disturbs, or interferes with the lessees, or either of them, or their agents or employe's, in the lawful prosecution of their business, under the provisions of this chapter, shall for each offense be punished as described in section 1961; and all vessels, their tackle, apparel, appurtenances, and cargo, whose crews are found engaged in any violation of the provisions of seotions 1965 to 1968, inclusive, shall be forfeited to the United States. Sec. 1968. If any person or company, under any lease herein authorized, know- 41 HI ernment, because Her Majesty's Government do not doubt that if, on -inquiry, it should prove to be correct, the Government of the United States will, with their well-known sense of justice, admit the illegality of the proceedings resorted to against the British vessels and the British subjects above mentioned, and will cause reasonable reparation to be made for the wrongs to which they have been subjected and for the losses which they have sustained." U. S. Case, Vol. 1, App., 156. Under date of April 12,1887, Mr. Bayard, writing to the British minister, said: "The remoteness of the scene of the fur-seal fisheries and the special peculiarities of that industry have unavoidably delayed the Treasury qfficials in framing appropriate regulations and issuing orders to United • States vessels to police the Alaskan waters for the protection of the fur seals from* indiscriminate slaughter and conse- ingly kills, or permits to be killed, any number of seals exceeding the number for each island in this chapter prescribed, such person or company shall, in addition to the penalties and forfeitures herein provided, forfeit the whole number of skins oi seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same. Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixty-three, a revenue tax or duty of two dollars is laid upon each fur-seal skin taken and shipped from the islands of Saint Paul and Saint George during the continuance of any lease, to be paid into the Treasury of the United States; and the Secretary of the Treasury is empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed. Sec. 1970. The Secretary of the Treasury may terminate any lease given to any person, company, or corporation on full and satisfactory proof of the violation of any of the provisions of this chapter or the regulations established by him. Sec. 1971. The lessees shall furnish to the several masters of vessels employed by them certified copies of the lease held by them respectively, which shall"be presented to the Government revenue officer for the time being who may he in charge at the islands as the authority of the party for landing and taking skins. Sec. 1972. Congress may at any time hereafter alter, amend or repeal sections from 1960 to 19,71, both inclusive, of this chapter. Sec 1973. The Secretary of the Treasury is authorized to appoint one agent and three assistant agents, who shall be charged with the management of the seal fisheries in Alaska, and the performance of such other duties as may he assigned to them by the Secretary of the Treasury. Sec. 1975, Such agents shall never be interested, directly or indirectly, in any lease of the right to take seals, nor in any proceeds or profits thereof, either as owner, agent, partner, or otherwise. 42 uent speedy extermination. The laws of the United States in this behalf are contained in the Revised Statutes relating to Alaska, in sections 1956-1971, and have been in force for upwards of seventeen years; and prior to the seizures of last summer but a single infraction is known to have occurred, and that was promptly punished. The question of instructions to Government vessels in regard to preventing the indiscriminate killing of fur seals is now being considered, and I will inform you at the earliest day possible what has been decided, so that British and other vessels visiting the waters in question can govern themselves accordingly." IT. S. Gase, Vol. 1, App., 160. Subsequently, August 19,1887, Mr. Bayard addressed communications to the United States ministers in France, Germany, Great Britai n, Japan, Russia, and Sweden and Norway, in which he said: "Recent occurrences have drawn the attention of this Department to the necessity of taking steps for the better protection of the fur seal fisheries in Bering Sea. Without raising any question as to the exceptional measures which the peculiar character of the property in question might justify this Government in taking, and without reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable, and I am instructed by the President to so inform you, to attain the desired ends by international cooperation. It is well known that the unregulated aud indiscriminate killing of seals in many parts of the world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their number. Under these circumstances, and in view of the common interest of all nations in preventing the indiscriminate destruction and consequent extermination of an animal which contributes so importantly to the commercial wealth and general use of mankind, you are hereby instructed to draw the attention of the Government to which you are accredited to the subject, and to invite it to enter into such an arrangement with the Government of the United States as will prevent the citizens of either country from killing seal in Bering Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy extermination of those animals and consequent serious loss to mankind. The ministers of the United States to Germany, Sweden and Norway, Russia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction." U. S. Case, Vol. 1, App., 168. A copy of this communication having been received by Mr. Phelps, 43 United States minister at London, he had an interview with Lord Salisbury, the British Secretary of State for Foreign Affairs, and proposed that the two governments should adopt a code of regulations for the preservation of the seals in Bering Sea from destruction at improper times and by improper means by the citizens of either country—such agreement to be entirely irrespective of any questions of conflicting jurisdiction in those waters. This proposal, Mr. Phelps reported, was acquiesced in by Lord Salisbury, who suggested that the American Minister obtain from his Government and submit a sketch of a system of regulations that would be adequate for the purpose. TJ. S. Case, Vol. 1, App., 171. Under date of February 7,1888, Mr. Bayard wrote to Mr. Phelps disclosing, in some detail, the reasons why prompt action was necessary in order to prevent the entire destruction of the fur seals frequenting the islands of the United States in Bering Sea, as well as those found on the islands belonging to Russia. Responding to the suggestion in respect to code of regulations, he said: "The only way of obviating the lamentable result above predicted appears to be by the United States, Great Britian, and other interested powers taking concerted action to prevent their citizens or subjects from killing fur seals with firearms or other destructive weapons north of 50 degrees of north latitude, and between 160 degrees of longitude west and 170 degrees of longitude east from Greenwich, during the period intervening between April 15 and November 1. To prevent the killing within a marine belt of 40 or 50 miles during that period would be ineffectual as a preservative measure. This would clearly be so during the approach of the seals to the islands. And after their arrival there such a limit of protection would also be insufficient, since the. rapid progress of the seals through the water enables them to go great distances from the islands in so short a time that it has been calculated that an ordinary seal could go to the Aleutian Islands and back, in all a distance of 300 or 400 miles, in less than two days." What would take place unless steps were taken to preserve this race Mr. Bayard proceeded to show: "That the extermination of the fur seals must soon take place unless they are protected from destruction in Bering Sea is shown by the fate of the animal in other parts of the world, in the absence of concerted action among the nations interested for its preservation. Formerly, many thousands of seals were obtained annually from the South Pacific Islands and from the coasts of Chile and South 44 Africa. They were also common in the Falkland Islands and the adjacent seas. But in those islands, where hundreds of thousands of skins were formerly obtained, there have been taken, according to the best statistics, since 1880, less than 1,500 skins. In some cases the indiscriminate slaughter, especially by use of firearms, has in a few years resulted in completely breaking up extensive rookeries. * * * It is manifestly for the interests of all nations that so deplorable a thing should not be allowed to occur. As has already been stated, on the Pribilof Islands this Government strictly limits the number of seals that may be killed under its own lease to an American company, and citizens of the United States have, during the past year, been arrested, and ten American vessels seized for killing fur seals in Bering Sea." He further observed that Great Britain, in cooperating with the United States to prevent the destruction of fur seals in Bering Sea would aid in perpetuating an extensive and valuable industry in which her own citizens have the most lucrative share. TJ. S. Case, Vol. 1, p. 172. Mr. Phelps, upon receiving this communication, held an interview, in London, with both Lord Salisbury and the Russian Ambassador, M. de Staal, and reported, under date of February 25,1888, that his lordship assented to the proposition of Mr. Bayard, and that he would also join the United States Government in any preventive measures it may be thought best to adopt, by orders issued to the naval vessels in that region of the respective governments. TJ. 8. Case, Vol. 1, App., 173. The Russian ambassador concurred, so far as his personal opinion was concerned, in the propriety of the proposed measures for the protection of the seals, and promised to communicate at once with his Government. In reply to the last letter Mr. Bayard wrote to Mr. Phelps: "It is hoped that Lord Salisbury will give it favorable consideration, as there can be no doubt of the importance of preserving the seal fisheries in Bering Sea, and it is also desirable that this should be done by an arrangement between the governments interested without the United States being called upon to consider what special measures of its own the exceptional character of the property in question might require it to take in case of the refusal of foreign powers to give their cooperation. Whether legislation would be necessary to enable the .United States and Great Britain to carry out measures for the protection of the seals would depend much upon the character of the regulation; but it is probable that legislation would be required. The manner of pro- 45 tecting the seals would depend upon the kind of arrangement which Great Britain would be willing to make with the United States for the policing of the seas and for the trial of British subjects violating the regulations which the two governments may agree upon for such protection." TJ. S. Case, Vol. 1, App., 175. During a temporary absence of Mr. Phelps from London, Mr. White, the United States Charge d'Affaires, had an interview with Lord Salisbury and the Russian ambassador, and reported that M. de Staal expressed a desire, on behalf of his government, to include in the area to be protected by the convention the Sea of Okhotsk, or at least that portion of it in which Robben Island is situated, there being, ho said, in that region large numbers of seals whose destruction is threatened in the same way as those in Bering Sea; and that Lord Salisbury, in order to meet the Russian Government's wishes respecting the waters surrounding Robben Island, suggested that, besides the whole of Bering Sea, those portions of the sea of Okhotsk and of the Pacific Ocean north of latitude 47 degrees should be included in the proposed arrangement. His lordship intimated, furthermore, that the period proposed by the United States for a close time, April 15 to November 1, might interfere with the trade longer than absolutely neces- 'sary for the protection of the seals, and he suggested October 1, instead of a month later, as the termination of the period of seal protection. TJ. S. Case, Vol., 1, App., 179. Mr. Bayard, in reply, said that he did object to the inclusion of the Sea of Okhotsk, or so much of it as was necessary for the protection of the seals; nor did he deem it absolutely necessary to insist on the extension, of the close season till the 1st of November. Only such a period was desired as was requisite for the end in view. But that success may be assured in the efforts of the various governments interested in the protection of the seals, it seemed advisable to take the 15th of October instead of the 1st as the date of the close time, although, the 1st of November would be safer. TJ. S. Case, Vol. 1, App., 180. At the argument there was some controversy between counsel as to whether Lord Salisbury had, in fact, agreed to any particular mode of protecting these fur seals from destruction. It is quite sufficient, in any view of this case, to accept the account Lord Salisbury himself gave of the meeting between himself and the representatives of the United States and Russia, on which occasion was considered the question of the preservation of the furseal species. The principal 46 interview on this subject was held on the 16th of April, 1888, and its result was stated the same day in an official communication from Lord Salisbury to the British Minister at Washington. Lord Salisbury said: "At this preliminary discussion it was decided provisionally, in order to furnish a basis for negotiation, and without definitely pledging our governments, that the space to be covered by the proposed convention should be the sea between America and Russia north of the 47th degree of latitude; that the close time should extend from the 15th of April to the 1st of November; that during that time the slaughter of all seals should be forbidden, and vessels engaged in it should be liable to seizure by the cruisers of any of the three powers and should be taken to the port of their own nationality for condemnation; that the traffic in arms, alcohol, and powder, should be prohibited in all the islands of those seas; and that, as soon as the three powers had concluded a convention, they should join in submitting it for the - assent of the other maritime powers of the northern seas. The United States charge' d'affaires was exceedingly earnest in pressing on us the importance of dispatch, on account of the inconceivable slaughter that had been and was still going on in these seas. He stated that, in addition to the vast quantity brought to market, it was a common practice for those engaged in the trade to shoot all seals they might meet in the open sea, and that of these a great number sank, so that their skins could not be recovered." British Case, Vol. 3, App., 196; TJ. 8. Case, Vol. 1, App., 238. A similar communication was sent to Sir R. Morier, the British Ambassador at St. Petersburg. These negotiations resulted in nothing of a practical nature because of the objections raised by the Canadian Government to any such plan as that to which the representatives of Great Britain, the United States and Russia, "'provisionally, in order to furnish a basis for negotiation," assented at the meeting of April 16,1888. Mr. Phelps, had a conversation with Lord Salisbury on the 13th of August, 1888, and again pressed for the completion of the convention, as the proposed extermination of the seals by Canadian vessels was understood to be rapidly proceeding. His lordship did not question the propriety or importance of taking measures to prevent the wanton destruction of so valuable an industry, in which, as he remarked, England had a large interests of its own. But he said that the Canadian Government objected, to auy such restrictions, aud that until its consent 47 could be obtained, Her Majesty's Government was not willing to enter into the convention; that time would be requisite to bring about that; and that meanwhile the convention must wait. It then became apparent to Mr. Phelps that the British Government would not execute the desired convention without the concurrence of Canada. Writing to Mr. Bayard, September 12,1888, Mr. Phelps, in giving an account of his interview with Lord Salisbury, said: " Certain Canadian vessels are making a profit out of the destruction of the seal iu the breeding season in the waters in question, inhuman and wasteful as it is. That it leads to the speedy extermination of the animal is no loss to Canada, because no part of these seal fisheries belong to that country; and the only profit open to it in connection with them is by destroying the seal in the open sea during the breeding time, although many of the animals killed in that way are lost, and those saved are worth much less than when killed at the proper time. Under these circumstances, the Government of the United States must, in my opinion, either submit to have these valuable fisheries destroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation." TJ. 8. Case, Vol. l,pp. 181,182. Upon the accession of Mr. Harrison to the office of President, the matters in dispute between the two Governments being unsettled, again became the subject of diplomatic correspondence. That correspondence is too voluminous to be reproduced in this opinion. But a reference to an interview between Mr. Blaine and the British minister at Washington, which took" place October 24, 1889, together with extracts from some of the communications emanating from the State Department, will suffice to show the general grounds upon which the position then taken by the United States was based. In the report which Sir Julian Pauncefote made to Lord Salisbury of the above interview, it is said: I We had a great deal of friendly discussion, in the course of which he stated that the seizures of the Canadian seal fishing vessels had been effected by the Treasury Department, which is charged with the protection and collection of the revenue (including that derived from the Alaska Company), and the measure had been resorted to under the belief that it was warranted by the act of Congress and the proclamation of the President. In this view the Department had been .confirmed by the judgment of the district court of Alaska. I observed that this 48 appeared like an assertion of the mare clausum doctrine, which I could hardly believe would be revived at the present day by his Government or any other, to which he replied that his Government had not officially asserted such a claim, and therefore it was unnecessary to discuss it. As a matter of fact there had been no interference with any Canadian vessels in Bering Sea except such as were found engaged in the capture and destruction of fur seals. But his Government claimed the exclusive right of seal fishery, which the United States, and Russia before them, had practically enjoyed for generations without any attempt at interference from any other country. The fur seal was a species most valuable to mankind and the Bering Sea was its last stronghold. The United States had bought the islands in that sea to which these creatures periodically resort to lay theiryoung, and now Canadian fishermen step in and slaughter the seals on their passage to the islands, without taking heed of the warnings given, by Canadian officials themselves, that the result must inevitably be the extermination of the species. This was an abuse, not only reprehensible in itself, aud opposed to the interests of mankind,.but an infraction of the rights of the United States. It inflicted, moreover, a serious injury on a neighboring aud friendly State, by depriving it of the fruits of an industry on which vast sums of money had been expended, and which had long been pursued exclusively and for the general benefit. The case was so strong as to necessitate measures of self-defense for the vindication of the rights ot the United States and the protection of this valuable fishery from destruction. I replied that as regarded the question of right I could not admit that the seizure of the Canadian vessels was justified under the terms of the act of Congress or of the proclamation of the President. Municipal legislation could have no operation against foreign vessels beyond territorial waters. A claim of exclusive fishery on the high seas was opposed to international law, and no such right could be acquired by prescription. Mr. Blaine observed that he thought Great Britain enjoyed such a right iu relation to pearl fisheries in some parts of the world. I said I was not aware of any such case. As regarded the question of fact, namely, the extermination of the fur seal species and the necessity for a l close season,' there was unfortunately a conflict of opinion. But if, upon a further and more complete examination of the evidence, Her Majesty's Government should come to the conclusion that a 'close season' is really necessary, and if an agreement should be arrived at on the subject, all differences on questions of legal right 49 would ipso facto disappear. Mr. Blaine expressed his readiness to proceed to such an inquiry, adding that he would be prepared to establisbr from Canadian evidenee alone the absolute necessity for a ' close season,' but he strongly insisted that the inquiry should take place here and be entirely of a diplomatic character. • * * As regards compensation, if an agreement should be arrived at, he felt sure that his Government would not wish that private individuals who had acted bona fide in the belief that they were exercising their lawful rights should be the victims of a grave dispute between two great countries, which had happily been adjusted. He was not without hope, therefore, that the wishes I had expressed might be met, and that all might be arranged in a manner which should involve no humiliation on either side. His tone was friendly throughout, and he manifested a strong desire to let all questions of legal right and international law disappear in an agreement for a' close season,' which he believes to be urgently called for in the common interest. It only now remains for me to solicit your lordship's instructions in regard to the suggestion of resuming in Washington the tripartite negotiation, with a view to arriving, if possible, at such a solution as is proposed by Mr. Blaine." British Case, Vol. 3, App. 350-351. After this interview the British Government made complaints of other seizures of British vessels in the open waters of Bering Sea. Those complaints were, met by Mr. Blaine in his letter of January 22, 1890, addressed to Sir Julian Pauncefote. As that letter contains a fuller statement of the position of the United States than had been made up to that time, nearly the whole of it is given, as follows: "In the opinion of the President, the Canadian vessels arrested and detained in the Bering Sea were engaged in a pursuit that was in itself contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this Government over the waters of Bering Sea; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty, the Emperor of Russia, in the treaty by which the Alaskan Territory was transferred to the United States. The weighty considerations growing out of the acquisition of that territory, with all the rights on land and sea inseparably connected therewith, may be safely left out of view, while the grounds are set forth upon 11492 4 50 which this Government rests its justification for the action complained of by Her Majesty's Government. It cannot be unknown to Her Majesty's Government that one of the most valuable sources of revenue from the Alaskan possessions is the fur seal fisheries of the Bering Sea. These fisheries had been exclusively controlled by the Government of Russia, without interference or without question, from their original discovery until the cession of Alaska to the United States in 1867. From 1867 to 1886 the possession in which Russia had been undisturbed was enjoyed by this Government also. There was no interruption and no intrusion from any source. Vessels from other nations passing from time to time through Bering Sea to the Arctic Ocean in pursuit of whales had always abstained from taking part in the capture of seals. "This uniform avoidance of all attempts to take fur seal in those waters had been a constant recognition of the right held and exercised first by Russia and subsequently by this Government. It has also been the recognition of a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to their extinction. This is not only the well-known opinion of experts, both British and American, based upon prolonged observation and investigation, but the fact has also been demonstrated in a wide sense by the well nigh total destruction of all seal fisheries except the one in Bering Sea, which the Government of the United States is now striving to preserve, not altogether for the use of the American people, but for the use of the world at large. "The killing of seals in the open sea involves the destruction of the female in common with the male. The slaughter of the female seal is reckoned as an immediate loss of three seals, besides the future loss of the whole number which the bearing seal may produce in the successive years of life. The destruction which results from killing seals in the open sea proceeds, therefore, by a ratio which constantly and rapidly increases, and insures the total extermination of the species within' a very brief period. It has thus become known that the only proper time for the slaughter of seals is at the season when they betake themselves to the land, because the land is the only place where the necessary discrimination can be made as to the age and sex of the seal. It would seem, then, by fair reasoning, that nations not possessing the territory upon which seals can increase their numbers by natural growth, aud thus afford an annual supply of skins for the use of mankind, should refrain from the slaughter iu open sea, where the destruction of the species is sure and swift. 51 "After the acquisition of Alaska the Government of the United States, through competent agents working under the direction of the best experts, gave careful attention to the improvement of the seal fisheries. Proceeding by a close obedience to the laws of nature, and rigidly limiting the number to be annually slaughtered, the Government succeeded in increasing the total number of seals and adding correspondingly and largely to the value of the fisheries. In the course of a few years of intelligent and interesting experiment the number that could be safely slaughtered was fixed at 100,000 annually. The company to which the administration of the fisheries was intrusted, by a lease from this Government, has paid a rental of $50,000 per annum, and in addition thereto $2.62| per skin for the total number taken, The skins were regularly transported to London to be dressed and prepared for the markets of the world, and the business had grown so large that the earnings of English laborers, since Alaska was transferred to the United States, amount in the aggregate to more than $12,000,000. The entire business was then conducted peacefully, lawfully, and profitably—profitably to the United States, for the rental was yielding a moderate interest on the large sum which this Government had paid for Alaska, including the rights now at issue; profitably to the Alaskan Company, which, under governmental direction and restriction, had given unwearied pains to the care and development of the fisheries; profitably to the Aleuts, who were receiving a fair pecuniary reward for their labors, and were elevated from semi-savagery to civilization and to the enjoyment of schools and churches provided for their benefit by the Government of the United States, and, last of all, profitably to a large body of English laborers, who had constant employment and received good wages. "This, in brief, was the condition of the Alaska fur seal fisheries down to the year 1886. The precedents, customs, and rights had been established and enjoyed either by Russia or the United States for nearly a century. The two nations were the ouly powers that owned a foot of land on the continents that bordered, or on the islands included within, the Bering waters where the seals resort to breed. Into this peaceful and secluded field of labor, whose benefits were so equitably shared by the native Aleuts of the Pribilof Islands, by the United States, and by England, certain Canadian vessels in 1886 asserted their right to enter and by their*ruthless course to destroy the fisheries, and with them to destroy also the resulting iudustries which are so valuable. The 52 Government of the United States at once proceeded to check this movement, which, unchecked, was sure to do great and irreparable harm. It was cause of unfeigned surprise to the United States that Her Majesty's Government should immediately interfere to defend and encourage (surely to encourage by defending) the course of the Canadians in disturbing an industry which had been carefully developed for more than ninety years under the flags of Russia and the United States— developed in such a manner as not to interfere with the public rights or the private industries of any other people or any other person. " Whence did the ships of Canada derive the right to do in 1886 that which they had refrained from doing for more than ninety years ? Upon . what grounds did Her Majesty's Government defend in the year 1886 a course of conduct in the Bering Sea which she had carefully avoided ever since the discovery of that sea? By what reasoning did Her Maj- jesty's Government conclude that an act may be committed with impunity against the rights of the United State3 which had never been attempted against the same rights when held by the Russian Empire? "So great lias beeu the injury to the fisheries from the irregular and destructive slaughter of seals in the open waters of the Bering Sea by Canadian vessels that, whereas the Government had allowed 100,000 to be taken annually for a series of years, it is now compelled to reduce the number to 60,000. If four years of this violation of natural law and neighbor's rights has reduced the annual slaughter of seal by 40 per cent, it is easy to see how short a period will be required to work the total destruction of the fisheries. "The ground upon which Her Majesty's Government justifies, or at least defends, the course of the Canadian vessels rests upon the fact that they are commiffing their acts of destruction on the high seas, viz, more than 3 marine miles from the shore line. It is doubtful whether Her Majesty's Government would abide by this rule if the attempt were made to interfere with the pearl fisheries of Ceylon, which extend more than 20 miles from the shore line aud have been enjoyed by England without molestation ever since their acquisitiou. So well recognized is the British ownership of those fisheries, regardless of the limit of the 3-mile line, that Her Majesty's Government feels authorized to sell the pearl-fishing right from year to year to the- highest bidder. Nor is it credible that modes of fishing on the Grand Banks, altogether practicable, but highly destructive, would be justified or even permitted by Great Britain on the plea that the vicious acts were committed more than 3 miles from the shore. 53 "There are, according to scientific authority, "great colonies of fish" on the "Newfoundland Banks." These colonies resemble the seats of great populations on land. They remain stationary, having a limited range of water in which they live and die. In these great "colonies" it is, according to expert judgment, comparatively easy to explode dynamite or giant powder in such manner as to kill vast quantities of fish and at the same time destroy countless numbers of eggs. Stringent laws have been necessary to prevent the taking of fish by the use of dynamite in many-of the rivers and lakes of the United States. The same mode of fishing could readily be adopted with effect on the more shallow parts of the banks, but the destruction of fish in proportion to the catch, says a high authority, might be as great as 10,000 to 1. Would Her Majesty's Government think that so wicked an act could not be prevented and its perpetrators punished simply because it had been committed outside of the 3-mile line? "Why are not the two cases parallel? The Canadian vessels are engaged in the taking of fur seals in a manner that destroys the power of reproduction and insures the extermination of the species. Iu exterminating the species an article useful to mankind is totally destroyed in order that temporary and immoral gain may be acquired by a few persons. By the employment of dynamite on the banks it is not probable that the total destruction of fish could be accomplished, but a serious diminution of a valuable food for man might assuredly result. Does Her Majesty's Government seriously maintain that the law of nations is powerless to prevent such violation of the common rightsof man? Are the supporters of justice iu all nations to be declared incompetent to prevent wrongs so odious and so destructive? "In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea and the liberty which it confers and which it protects be perverted to justify acts which are immoral in themselves, which inevitably tend to results against .the interests and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification. The President does not conceive it possible that Her Majesty's Government could, in fact, be less indifferent to these evil results than is the Government of the United States. But he hopes that Her Majesty's Government will, after this frank expression of views, more readily comprehend the position of the Government of the United States touching this serious question. This Go vernmeut has been ready 54 to concede much in order to adjust all differences of view, and has, in the judgment of the President, already proposed a solution, not only equitable, but generous. Thus far Her Majesty's Government has declined to accept the proposal of the United States. The President now awaits with deep interest, not unmixed with solicitude, any proposition for reasonable adjustment which Her Majesty's Government may submit. The forcible resistance to which this Government is constrained in the Bering Sea is, in the President's judgment, demanded not only by the necessity of defending the traditional and long-established rights of the United States, but also the rights of good government and of good morals the world over. " In this contention the Government of the United States has no occasion and no desire to withdraw or modify the positions which it has at any time maintained against the claims of the Imperial Government of Russia. The United States will not withhold from any nation the privileges which it demanded for itself when Alaska was part of the Russian Empire. Nor is the Government of the United States disposed to exercise in those possessions any less power or authority than it was willing to concede to the Imperial Government of Russia when its sovereignty extended over them. The President is persuaded that all friendly nations will concede to the United States the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations have always conceded to the Empire of Russia." TJ. S. ' Case, Vol. I, App., 200. In his letter of December 17, 1890, in reply to Lord Salisbury's letter of August 2,1890, Mr. Blaine discusses with much elaboration and with signal ability all the questions then in dispute between the two governments. In that letter he says: "I am directed by the Presidentto say that, on behalf of the United States, he is willing to adopt the text used in the act of Parliament to exclude ships from hovering nearer to the island of St. Helena than 8 marine leagues, or he will take the example cited by Sir George Baden- Powell, where, by permission of Her Majesty's Government, control over a part of the ocean 600 miles wide is to-day authorized by Australian law. The President will ask the Government of Great Britain to agree to the distance of 20 marine leagues—within which no ship shall hover around the islands of St. Paul and St. George from the 15th of May to the 15th of October of each year. This will prove an effective mode of preserving the seal fisheries for the use of the civilized world— 55 a mode which in view of Great Britain's assumption of power over the open ocean she can not with consistency decline. Great Britain prescribed 8 leagues at St. Helena; but the obvious necessities in the Bering Sea will, on the basis of this precedent, justify 20 leagues for the protection of the American seal fisheries. "The United States desires only such control over a limited extent of the waters in the Beriug Sea, for a part of each year, as will be sufficient to insure the protection of the fur seal fisheries, already injured, possibly, to an irreparable extent by the intrusion of Canadian vessels, sailing with the encouragement of Great Britain and protected by her flag. The gravest wrong is committed when (as in many instances is the case) American citizens, refusing obedience to the laws of their own country, have gone into partnership with the British flag and engaged in the destruction of the seal fisheries which belong to the United States. So general, so notorious, and so shamelessly avowed has this practice become that last season, according to the report of the American consul at Victoria, when the intruders assembled at Unalaska on the 4th of July, previous to entering Bering Sea, the day was celebrated in a patriotic and spirited manner by the American citizens, who at the time were protected by the British flag in their violation of the laws of their own country. "With such agencies as these, devised by the Dominion of Canada, and protected by the flag of Great Britain, American rights and interests have, within the past four years, been damaged to the extent of millions of dollars, with no corresponding gain to those who caused the loss. * * * "The repeated assertions that the Government of the United States demands that the Bering Sea be pronounced mare clausum are without foundation. The Government has never claimed it and never desired it. It expressly disavows it. At the same time the United States does not lack abundant authority, according to the ablest expo- nents of international law, for holding a small section of the Bering Sea for the protection of the fur seals. Controlling a comparatively restricted area of water for that one specific purpose is by no means the equivalent of declaring the sea, or any part thereof, mare clausum. Nor is it by any means so serious an obstruction as Great Britain assumed to make it in the-South Atlantic, nor so groundless an interference with the common law of the sea as is maintained by British authority to-day in the Indian Ocean." TJ. 8. Case, Vol. I, App., 263,284, 286. 56 In the same letter he observes that the President, not desiring the long postponement which an examination of the legal authorities from Ulpiau to Phillimore and Kent would involve, refers to the following passages in the letter of Mr. Phelps of September 12,1888, as fully expressing his own views: "Much learning has been expended upon the discussion of the abstract question of the right of mare clausum. I do not conceive it to be applicable to the present case. Here is a valuable fishery and a large, and, if properly managed, permanent industry, the property of the nations on whose shores it is carried on. It is proposed by the colony ■ of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question in the open neighboring sea during the period of gestation, when the common dictates of humanity ought to protect them were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free. The same line of argument would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things which cannot be allowed to be done on the open sea with impunity, and against which every sea is mare clausum; and the right of self-defense as to person aud property prevails there as fully as elsewhere. If the fish upon Canadian coasts could be destroyed by scattering poison iu the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenceless in such a case? Tet that process would be no more destructive, inhuman, and wanton than this. If precedents are wanting for a defense so necessary and proper it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occasion tor them arose, undeterred by the discussion of abstract and inadequate rules." TJ. S. Case, Vol. 1, App., 263, 287. At a later date, in his letter of June 14, 1891, to Sir Julian Pauncefote, Mr. Blaine said: "In the opinion of the President Lord Salisbury is wholly and strangely in error in making the following statement: 'Nor do they 57 (the advisers of the President) reply, as a justification for the seizure of British ships in the open' sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.' The Government of the United States has steadily held just the reverse of the position which Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, aud all the facts and incidents of their relation to the island, give the United States a property interest therein; that this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land aud waters of Alaska; that England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore prevailing." TJ. S. Case, Vol. 1, App., 295, 298. The general contention of the British Government, during the negotiations, so far as the questions of right and jurisdiction were concerned, was that Russia neither asserted nor exercised, and could never have rightfully asserted or exercised, exclusive jurisdiction or exclusive rights in the open waters of Bering Sea, except that by the Ukase of 1821 she forbade foreign vessels from approaching nearer than 100 Italian miles from the coast of the North American continent between Bering Strait and the fifty-first degree of north latitude, or the coasts of the Asiatic continent from the same strait to the forty-fifth degree of north latitude, or the intervening islands belonging to her; that against this prohibition both Great Britain and the United States earnestly protested, and it was withdrawn or abandoned by Russia when she made the treaty of 1824 with the United States, and that of 1825 with Great Britain; that the pursuit of fur seals in the open seas could not of itself be regarded as contra bonos mores unless and until, for special reasons, it has been agreed by international arrangement to forbid it; that Great Britain has always claimed the freedom of navigation and fishing in the waters of Bering Sea outside the usual territorial limit of 58 one marine league from the coast; that the public right to fish, catch seals, or pursue any other lawful occupation on the high seas can not be held to be abandoned by a nation from the mere fact that for a certain number of years it has not suited the subjects of that nation to exercise it; that fur seals were animals ferm natures, and were res nullius until caught; that no person could have property in them until he had actually reduced them into possession by capture, and that any interference by the United States with the hunting and taking of these fur seals, in the open waters of the ocean, by the citizens or subjects of Great Britain, was a violation of rights secured to them by the law of nations. The result of the negotiations was the treaty of February 29,1892, under which this Tribunal is proceeding. JURISDICTION AND RIGHTS ASSERTED AND EXERCISED BY RUSSIA IN BERING SEA, AIVD IN RESPECT TO THE SEAL FISHERIES IIV THAT SEA, PRIOR TO THE CESSION OF 1SC7 OF ALASKA TO THE UNITED STATES. EFFECT OF THE TREATY CONCLUDED IN J8S5 BETWEEN RUSSIA AND GREAT BRITAIN. THE RIGHTS THAT PASSED TO THE UNITED STATES BY THE TREATY OF CESSION OF 1867. With the knowledge of the origin and history of the controversy between the two Governments which the above statement furnishes we are the better prepared to consider the particular questions which this treaty requires this Tribunal to determine. By Article VI of the treaty of February 29,1892," it was provided that "In deciding the matters submitted to the Arbitrators it is agreed that the following five points shall be submitted to them in order that their award shall embrace a distinct decision upon each of said five points, to wit: "1. What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? "2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 53 "3. Was the body of water now known as the Bering Sea included in the phrase'Pacific Ocean,'as used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after said treaty? "4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty? " 5. Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?" All of the points specified in this article of the treaty are, in my judgment, embraced in the general questions for the amicable settlement of which this Tribunal has been constituted, and which are described in Article I of the treaty as questions " concerning the jurisdictional rights of the United States in the waters of Bering Sea, and concerning also the preservation of the fur seal in, or habitually resorting to, said sea, and the rights of the citizens or subjects of either country as regards the taking of fur seal in, or habitually resorting to, the said waters." These general questions may properly be met by the answers the Tribunal makes to the points particularly named in Article VI. If they are not so met, then it will be the duty of Arbitrators to make such additional answers as will cover all the matters embraced in Article I. An award that does not dispose of those points, as well as of the several matters generally named in Article I, might be disregarded as not such a decision as the treaty requires. It was not within the contemplation of the two governments that any matter embraced in either article should be left undetermined by the Tribunal. In the belief that the entire controversy in respect to the questions and points enumerated in those articles would be concluded by the award, the two governments engaged, in Article XIV, "to consider the result of the proceedings of the Tribunal of Arbitration, as a full, perfect, and final settlement of all questions referred to the Arbitrators," and to cooperate in securing the adhesion of other powers to such regulations as might be prescribed. The first point in Article VI of the Treaty involves an inquiry as to— What exclusive jurisdiction in the sea now known as the Bering Sea, 60 and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? The relations held by Russia to Bering Sea and to the fisheries therein, largely involve the interpretation to be given to what are called the Ukases of 1799 and 1821, to the treaty of 1824 between Russia and the United States, and the treaty of 1825 between Russia and Great Britain. Those treaties were the result of negotiations that followed the vigorous protests made by the United States and Great Britain against the Ukase of 1821. I will later on consider their effect upon any claims of jurisdiction aud authority asserted by Russia. The Ukase of 1799, as it is commonly called, was little more than a charter granted to the Russian American Company. The material portions of it are in these words: "By the grace of a merciful God, we, Paul the First, Emporor and Autocrat of all the Russias, etc. To the Russian American Company under our highest protection. The benefits and advantages resulting to our empire from the hunting and trading carried on by our loyal subjects in the northeastern seas and along the coasts of America have attracted our imperial attention and consideration; therefore, having taken tinder our immediate protection a company organized for the above-named purpose of carrying ou hunting and trading, we allow it to assume the appellation of "Russian American Company, operating under our Highest Protection;" and for the purpose of aiding the company iu its enterprises, we allow the commanders of our land and sea forces to employ said forces in the company's aid, if occasion requires it, while for further relief and assistance of said company, and having examined their rules and regulations, we hereby declare it to be our highest Imperial will to grant to this company for a period of twenty years the following rights and privileges: "I. By the right of discovery in past times by Russian navigators of the northeastern part of America, beginning from the fifty-fifth degree of north latitude and of the chain of islands extending from Kamchatka to the north to America, and southward to Japan, and by right of possession of the same by Russia, we most graciously permit the company to have the use of all hunting grounds and establishments now existing on the northeastern coast of America, from the above-mentioned fifty-fifth degree to Bering Strait, and also on the Aleutian, Kurile, and other islands situated in the Northeastern Ocean. 61 "II. To make new discoveries not only north of the fifty-fifth degree of north latitude but farther to the south, and to occupy the new lands discovered as Russian possessions, according to prescribed rules, if they have not been previously occupied by or been dependent on any other nation. "III. To use and profit by everything that has been or shall be discovered in those localities, on the surface and in the interior of the earth,* without competition from others. "IV. We most graciously permit this company to establish settlements in future times wherever they are wanted, according to its best knowledge and belief1, and fortify them to insure the safety of the inhabitants, and to send ships to those shores with goods and hunters, without any obstacles on the part of the Government. "V. To extend their navigation to all adjoining nations and hold business intercourse with all surrounding powers, upon obtaining their free consent for the purpose, and under our highest protection to enable them to prosecute their enterprises with greater force and advantage. "VI. To employ for navigation, hunting, and all other business, free and unsuspected people, having no illegal views or intentions. * * * "X. The exclusive right is most graciously granted to the company for a period of twenty years, to use and enjoy, in the above extent of country and islands, all profits and advantages derived from hunting, trade, industries, aud discovery of new lands, prohibiting the enjoyment of these profits and advantages not only to those who would wish to sail to those countries on their own account, but to all former hunters and trappers who have been engaged iu this trade and have their vessels and furs at those places; and other companies which may have been formed will not be allowed to continue their business unless they unite with the present company with their free consent; but such private companies or traders as have their vessels in those regions can either sell their property, or, with the company's consent, remain until they have obtained a cargo, but no longer than is required for the loading and return of the vessel; and after that nobody will have any privileges but this one company, which will be protected in the enjoyment of all the rights mentioned. " XL Under our highest protection the Russian-American Company will have full control over all above-mentioned localities, and exercise judicial powers in minor cases. The company will also be permitted to use all local facilities for fortifications in the defense of the country 62 under their control against foreign attacks. Only partners of the company shall be employed in the administration of the new possessions in charge of the company." U. 8. Case, Vol. 1, App., 14. This is the translation of the Ukase of 1799 as given in the original Cases of both governments. It is also identical with that found in Bancroft's History of Alaska, the author stating that the translation adopted by him is based on the full text of the charter from Golovnin in Materialui I. 77-80. Bancroft's Works, Vol 33, Sistory of Alaska, p. 379. In the British Counter Case it is said that the above translation is inaccurate, and what is now claimed to be a correct rendering of the original Russian document, as given by Golovnin and Tikhmenie, is produced. But at the oral argument it was admitted that the differences between these translations did not materially affect any questions depending upon the construction of the Ukase of 1799. For that reason the latter translation is not embodied in this opinion. Did this Ukase assert an exclusive jurisdiction upon the part of Russia over any part of Bering Sea beyond ordinary territorial waters? It is quite true that at the time the Ukase of 1799 was issued all the islands in Bering Sea had become a part of the territory of Russia by right of discovery and occupancy, within the rules announced by the Supreme Court of the United States in Johnson vs. Mcltosh, 8 Wheat., 543, 572. In that case Chief Justice Marshall, speaking for the court, said: I On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively require. Its vast extent afforded an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing upon them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle, which all should acknowledge as the law, by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or ■fc 63 by whose authority, it waSTnade, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented." In my judgment there is nothing in the Ukase of 1799 which either expressly or by necessary implication indicates the purpose of Russia to assert such sovereign authority over the open waters of Bering Sea as would enable it to exclude the vessels of other powers from that sea, or even to prohibit hunting or fishing in its waters, beyond the ordinary territorial limits prescribed by the law of nations. Prior to 1799 numerous rival companies or associations, maintained by Russian capital, were engaged in trading with the native inhabitants residing on the coasts or islands of Bering Sea. Many complaints were made to the Emperor of cruelty and wrong practices by those associations toward the natives. The " promyshleniki," it was said, "could easily t?ke by force what they had not the means to buy, or what the natives did not care to sell." "Thus," says Bancroft, "for many years matters were allowed to take their course; but toward the end of the eighteenth century the threatened exhaustion of the known sources of supply caused much uneasiness among the Siberian merchants engaged in the fur trade, aud some of them endeavored to remedy the evil by soliciting special privileges from the Government for the exclusive right to certain islands, with the understanding that a fixed percentage of the gross yield—usually one-tenth—was to be paid into the public treasury. Such privileges were granted freely enough, but it was another matter to make the numerous half-piratical traders respect or even pay the least attention to them." History of Alaska, 375-6. And we have the authority of a report made by a committee, under royal permission, for saying that out of this condition of affairs arose the necessity recognized by the Russian Government of one strong company which "would serve on the one hand to. perpetuate Russian supremacy there, and on the other would prevent many disorders and preserve the fur trade, the. principal wealth of the country, affording protection to the natives against violence and abuse, and tending toward a general improvement of their condition." Hence the creation of the Russian-American Company by the Ukase of 1799> 64 to which, according to the same report,' "was granted full privileges, for a period of twenty years, on the coast of Northwestern America,- beginning from latitude 55° north and including the chain of islands extending from Kamschatka northward to America and southward to Japau; the exclusive right to all enterprises, whether hunting, trading, or building, and to new discoveries, with strict prohibition from profiting by any of these pursuits not only to allparties who might engage in them on their own responsibility, but also to those who formerly had ships and establishments there, except those who have united with the new company." Bancroft's History of Alaska, 379; Report on Ritss. Amer. Colonies, MS. vi, 13. Undoubtedly it was intended that the Russian-American Company should enjoy these rights and privileges without competition—-that is, exclusively, against all, whether Russian subjects or the subjects of other countries. But the rights and privileges so granted were only such as related to business carried on within the territorial dominion or authority of Russia. If the translation of this Ukase, as given in the original Cases of the two governments be the correct one, the exclusive right granted to the Russian-American Company for twenty years was only to use and enjoy 'fin the above extent of country and islands all profits and advantages derived from hunting, trade, industries, and discovery of new lands." If the translation embodied in the British Counter Case be the correct one, then the grant was of an " exclusive right to all acquisitions, industries, trade, establishments, and discovery of new countries " throughout the " entire extent of the lands and islands described." Neither translation supports the suggestion that the Emperor of Russia intended to assert sovereign power over any part of Bering Sea outside of territorial waters, and thereby interfere with the freedom of navigation in the open waters of that sea, or with any such use of those waters by the citizens or subjects of other countries as was sanctioned by the law of nations. He intended only to assert an exclusive right to control, for the benefit of a particular company taken under his protection, all the profits.and advantages to be derived from the business, trading, and" industries conducted within territorial waters and on the coasts and islands of Russia. When the Ukase of". 1799 was issued, the hunting of fur seals in the open waters of the ocean, beyond territorial jurisdiction, was ^ unknown. The only part of the Ukase of 1799 that seems to give any support 65 whatever to the opposite view are the words in the first paragraph referring to the benefits and advantages that resulted to the Empire from the hunting and trading carried on by the Emperor's loyal subjects "in the northeastern seas and along the coasts of America." But that was merely a recital—in what may, not unreasonably, be called the preamble of the company's charter—of the fact that Russians had been engaged in hunting and trading, not only "along the coasts of America," but "in the northeastern seas;" not that they had been so engaged in those waters, to the exclusion of the citizens or subjects of other countries rightfully engaged in commerce and navigation on the high seas. This is made clear by the granting clause of the company's charter, which, referring to the discovery by Russian navigators of the northeastern [northwestern] part of America, and of certain islands, and of the possession held in those localities by Russia, permits the company to have the use, (not of the northeastern seas, but) of allhunting grounds and establishments then existing "on the northeastern [northwestern] coast of America," from the fifty-fifth degree of latitude to Bering Strait, " aud also on the Aleutian, Kurile, and other islands, situated in the Northeastern Ocean." And, as already stated, the exclusive right, granted to the company, as declared in section 10, was "to use and enjoy, in the above-described extent of country and islands, all profits and advantages derived from hunting, trade, industries, and discovery of new lands." In my judgment there is nothing in the record which even remotely sustains the theory that Russia intended, by the Ukase of 1799, to assert exclusive jurisdiction over, or any sovereign control of, the northeastern sea outside of territorial waters. The only purpose was to give to a favored company exclusive privileges within the territory and dominion .of that nation. In respect to that Ukase, Mr. Middle- ton, the United States Minister at St. Petersburg, who negotiated the Treaty of 1824 with Russia, said, in a letter to Mr. Adams that it " is, in its form, an act purely domestic, and was never notified to any foreign state with injunction to respect its provisions." American State Papers, Foreign Relations, vol. 5, p. 461. Nor, in my judgment, is there any document or fact in the public history of Russia, as disclosed in the record before us, which justifies the contention that that country asserted or exercised, prior to 1821, exclusive jurisdiction over the waters of Bering Sea or any exclusive rights in the seal fisheries in that sea, outside of territorial waters. U492 5 66 This brings us to an examination of tho Ukase of 1821, the provisions of-which, as well as the negotiations that arose from its promulgation, were the subject of extended comment by counsel. Between 1799 and 1821 the waters of Bering Sea were visited by vessels from various countries iu charge of persons engaged in the hunting of whales, and who also carried on illicit and forbidden trade of different kinds with the native inhabitants of Russian territories, in violation of the established policy of the Russian Government. For the purpose of breaking up that trade and enforcing the policy of his Government, the .Emperor of Russia issued the following Edict, called the Ukase of 1821: " Observing from reports submitted to us that the trade of our subjects on the Aleutian Islands and on the northwest coast of America, appertai ning unto Russia, is subjected, because of secret and illicit traffic, to oppression and impediments; and finding that the principal cause of these difficulties is the want of rules establishing the boundary for navigation along these coasts, aud the order of naval communication as well in these places as on the whole of the eastern coast of Siberia and the Kurile Islands, we have deemed it necessary to determine these communications by specific regulations which are hereto attached. In forwarding these regulations to the directing senate, we command that the same be published for universal information, and that the proper measures be taken to carry them into execution." Those regulations are entitled " Rules established for the limits of navigation and order of communication along the coast of eastern Siberia, the northwest coast of America, and the Aleutian, Kurile, and other islands." As given in the Oases of both Governments, they contain among other provisions, the following: " Sec. 1. The pursuits of commerce, whaling, and fishery, and of all other industries, on all islands, ports, and gulfs, including the whole of the northwest coast of America, beginning from the Bering Straits, to the fifty-first degree of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands, from Bering Straits to the South Cape of the Islands of TJrup, viz: to the 45° 50' northern latitude, is exclusively granted to Russian subjects. I Sec. 2. It is therefore prohibited to all foreign vessels, not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. The tran s- gressor's vessel is subject to confiscation, along with the whole cargo. 67 "Sec. 3. An exception to this rule is to be made in favor of vessels carried thither by heavy gales or real want of provisions and unable to make any other shore but such as belongs to Russia. In those cases they are obliged to produce convincing proofs of actual reason for such exception. Ships of friendly governments merely on discoveries are likewise exempt from the foregoing rule. In this case, however, they must previously be provided with passports from the Russian minister of the Navy. I Sec. 4. Foreign merchant ships which, for reasons stated in the foregoing rule, touch at any of the above-mentioned coasts are obliged to endeavor to choose a place where the Russians are settled, and to act as hereunder stated. " Sec. 14. It is likewise interdicted to foreign ships to carry on any traffic or barter with the natives of the islands and of the northwest coast of America in the whole extent above mentioned. A ship convicted of any trade shall be confiscated. "Sec. 25. In case a ship of the Russian Imperial Navy, or one belonging to the Russian-American Company, meet a foreign vessel on the above-stated coasts, in harbors or roads within the before-mentioned limits, and the commander find grounds by the present regulation that the ship be liable to seizure he is to act as follows: "Sec. 26. The commander of a Russian vessel suspecting a foreign to be liable to confiscation, must inquire and search the same, and, finding her guilty, take possession of her. Should the foreign vessel resist he should employ persuasion, then threats, and at last force, endeavoring, however, at all events, to do this with as much reserve as possible. If the foreign vessel employ force against force, then he shall consider the same as an evident enemy, and force her to surrender according to the naval laws." U. 8. Case, Vol. I, p. 16. In Mr. Blaine's letter of June 30, 1890, to Sir Julian Pauncefote, there is a translation o,f sections 1 aud 2 of this Ukase that differs somewhat (though not, in my opinion, materially) from the translation of the same sections given in the Cases of the two Governments. The translation followed by Mr. Blaine is as follows: " Sec. 1. The transaction of commerce and the pursuit of whaling and fishing, or any other industry on the islands, in the harbors and inlets, and, in general, all along the northwestern coast of America from Bering Strait to the fifty-first parallel of northern latitude, and likewise on the Aleutian Islands and along the eastern coast of Siberia, 68 II and on the Kurile Islands; that is, fiom Bering Straits to the southern promontory of the Island of Urup, viz, as far south as latitude 45° 50' north, are exclusively reserved to subjects of the Russian Government. "Seo. 2. Accordingly, no foreign vessel shall be allowed, either to put to shore at any of the coasts and islands under Russian dominion, as specified in the preceding section, or even to approach the same to within a distance of less than 100 Italian miles. Any vessel contravenin g this provision shall be subject to confiscation with her whole cargo." U. 8. Case, Vol. 1, App., 224, 226. Does the Ukase of 1821—looking first to its words only—import an assertion upon the part of Russia of exclusive jurisdiction over the open waters of Bering Sea, or of exclusive rights in what are called the seal fisheries in those waters? If not, what was the extent and nature of the jurisdiction so asserted? This Ukase appears, upon its face, to be based upon reports submitted to the Emperor touching the trade of his subjects, not in Bering Sea, but "on the Aleutian Islands and on the northwest coast of America." The first regulation has reference to " the pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs, including the whole of the northwest coast of America," and "along the Kurile Islands." The same regulation according to the translation given in the letter of Secretary Blaine to Sir Julian Pauncefote, refers to "the transaction of commerce and the pursuits of whaling and fishing, or any other industry, on the islands, in the harbors and inlets, and, in general, all along the northwestern coast of America." Considering next the circumstances under which this Ukase was issued, we find that Russia had numerous colonial establishments and industries on certain coasts and islands. And there were ports, gull's, harbors, and inlets contiguous to its possessions, and constituting part of its territorial waters, in which foreigners carried on trade to the prejudice of the Russian-American Company and in violation of the established policy of Russia. The Emperor, as his edict shows, claimed that an illicit trade had been illegally carried on by foreigners.with those establishments and with the native population. He desired that Russian subjects alone should enjoy the benefits of those establishments, and of the industries under the control of or belonging to Russia. It was " therefore"—that is, to that end—foreign vessels were prohibited, not from entering Bering Sea, but from landing on the coasts and islauds of Russia named in the first regulation, or approach- 69 ing them within less than 100 Italian miles. The transgressor's vessel and cargo would not have been subject to confiscation, uuder the regulations established, by engaging iu whaling or fishing in the open waters outside of the line defined in thS second regulation, namely, 100 Italian miles from the particular coasts and islands specified in the Ukase aud regulations. Whether, therefore, reference be made to the words of the Ukase or to the circumstances under which it was promulgated, it is quite clear that Russia did not intend by that edict to assert any exclusive authority over the waters of Bering Sea outside of 100 Italian miles from the coasts and islands described in the first regulation. That we have properly interpreted the Ukase and regulations of 1821 is, in part, shown by the second charter granted to the Russian- American Company, a few days after the above regulations were promulgated. That charter states that the company was established " for carrying on industries aud trade on the mainland of Northwestern America, on the Aleutian Islands, and on the Kurile Islands," and that "it enjoys the privilege of hunting and fishing to the exclusion of all other Russian or foreign subjects," not throughout Bering Sea, but "throughout the territories long since in the possession of Russia on the coast of Northwest America, begiuning at the northern point of the Island of Vancouver in latitude 51° north, and extending to Bering Strait and beyond, as well as on all islands adjoining this coast, and all those situated between that coast and the eastern shore of Siberia, as well as on the Kurile Islands where the company has engaged in the hunting down to the South Cape of the Island of Urup, in latitude 45° 50'." This clearly indicates that the exclusive privileges granted to the Russian-American Company had no reference to hunting, trading, fishiug, and industries in the open seas outside of 100 Italian miles from the coasts defined in the regulations of 1821. That line was established by Russia simply as a means—and it was deemed by the Emperor sufficient for that purpose—of preventing foreigners from coming into contact with its colonial trade and industries, and thereby interfering with the enjoyment by the Russian-American Company of the exclusive rights and privileges granted to it. Turning to the diplomatic correspondence between Russia and the United States, what do we find? This Ukase, and the regulations promulgated in execution of it, were brought to the attention of the governments of both the United States and of Great Britian: to the 70 former, by M. de Poletica, the Russian minister at Washington, in an official communication dated January 30, 1822, addressed to John Quincy Adams, the American Secretary of State. Mr. Adams replied, under date of February 25,1822, expressing, by direction of the President, his surprise at this " assertion of a territorial claim on the part of Russia extending to the fifty-first degree of north latitude on this continent, and a regulation interdicting to all commercial vessels other than Russian, under tlie penalty of seizure and confiscation, to approach upon the high seas within 100 Italian miles of the shore to which that claim is made to apply." After observing that the exclusion of the vessels of citizens of the United States from the shore "beyond the ordinary distance to which territorial jurisdiction extends" had excited still greater surprise, he inquired whether the Russian minister was authorized to give explanation of the grounds of right, upon principles generally recognized by the laws and usages of nations, which could warrant the action of Russia. U. 8. Case, Vol. 1, App., 132. It is clear that Mr. Adams did not interpret the Ukase as asserting jurisdiction over Bering Sea, except to the extent of 100 Italian miles from the coasts specified. Equally explicit were the declarations of the American Minister at St. Petersburg, who in a confidential memorandum sent to Mr. Adams, said: "The extension of territorial rights to the distance of 100 Italian miles upon two opposite continents, aud the prohibition of approaching to the same distance from those coasts, or from those of all the intervening islands, are innovations on the law of nations, and measures unexampled." American State Papers, Vol. 5, p. 452. M. Poletica, February 28,18"K< replied at some length, in justification of the edict promulgated by the Emperor of Russia. He recited numerous facts which, in his judgment, sustained the claims of Russia to the extent specified in the regulations for the Russian-American Company—resting the title of his Government upon first discovery, first occupancy, and peaceable, uncontested possession for more than half a century prior to the independence of the United States. In respect to the territory claimed by Russia, he said that the Imperial Government, in assigning for limits to the Russian possessions on the northwest coast of America, on the one side Bering Strait and on the other the fifty-first degree of north latitude, has only made a moderate use of an incontestable right, "since the Russian navigators, who were the first to explore that part of the American continent in 1741, 71 pushed their discovery as far north as the forty-ninth degree of noi>th latitude." The fifty-first degree, therefore, he said, was no more than a mean point between the Russianestablishment of New Archangel, situated under the fifty-seventh degree, and the American colony at the mouth of the Columbia, which is found under the forty-sixth degree of the same latitude. To what extent the Ukase was intended to iuterfere with the free use of the waters outside of ordinary territorial limits, will appear in the following extracts from the above letter of M. Poletica : "I shall be more succinct, sir, in the exposition of the motives which determined the Imperial Government to prohibit foreign vessels from fapproaching the northwest coast of America, belonging to Russia, within the distance of at least 100 Italian miles. This measure, however severe it may at first view appear, is, after all, but a measure of prevention. It is exclusively directed against the culpable enterprises of foreign adventurers, who, not content with exercising upon the coasts above mentioned an illicit trade very prejudicial to the rights reserved entirely to the Russian-American Company, take upon them besides to furnish arms and ammunition to the natives in the Russian provinces in America, exciting them likewise, in every manner, to resistance and revolt against the authorities there established. The American Government doubtless recollects that the irregular conduct of these adventurers, the majority of whom was composed of American citizens, has been the object of the most pressing remonstrances on the part of Russia to the Federal Government from the time that diplomatic missions were organized between the two countries. These remonstrances, repeated at different times, remain constantly without effect, and the inconveniences to which they ought to bring a remedy continue to increase. * * * Pacific means not having brought any alleviation to the just grievances of the Russian-American Company against foreign navigators in the waters which environ the establishments on the northwest coast of America, the Imperial Government saw itself under the necessity of having recourse to the means of coercion, and of measuring the rigor according to the inveterate character of the evil to which it wished to put a stop. Yet, it is easy to discover, upon examining closely the last regulation of the Russian- American Company, that no spirit of hostility had anything to do with its formation. The most minute precautions have been taken in it to prevent abuses of authority on the part of commanders of Russian 72 ci niters appointed for the execution of said regulation. At the same time it has not been neglected to give all the timely publicity necessary to put those upon their guard against whom the measure is aimed. Its action, therefore, can only reach the foreign vessels which, in spite of the notification, will expose themselves to seizure by infringing upon the line marked out in the regulation. The Government flatters itself that these cases will be very rare; if all remain as at present appears, not one. "I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend, /m the northwest coast of America, from Bering Strait to the fifty-first degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the forty-fifth degree. The extent of sea to which these possessions form the limits, comprehends all the conditions attached to shut seas ('mers ferm^es'), and the Russian Government might consequently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred asserting only its essential rights, without taking any advantage of localities." British Case, Vol. 1, App., pp. 28, 30; U. 8. Case, Vol. 1, App., 133. Equally explicit were the declarations made by the Russian Government, to the British Government, in an official communication, dated November 12,1821, addressed by Baron Nicolay, the Russian Ambassador at London, to the Marquis of Londonderry, then at the head of the British Foreign Office. After referring to the complaints which the operations of smugglers and adventurers along the northwest coast of America belonging to Russia have more than once given rise to, which operations had for their object" a fraudulent commerce in furs and other articles which are exclusively reserved to the Russo-American Company," and betrayed a purpose to excite resistance or revolt, upon the part of the natives, to established authority, Baron Nicolay said: "It was, therefore, necessary to take severe measures against these intrigues, and to protect the company against the hurtful prejudices that resulted, and it was with that end in view that the annexed regu- - lation has just been published. " This new regulation does not forbid foreign vessels to navigate the seas that wash the shores of the Russian Possessions on the northwest coast of America and tlie northeast coast of Asia. Such a prohibition— which it would not have been difficult to enforce with a sufficient naval force—would, of a truth, have been the most efficacious means of pro- m 73 tecting the interests of the Russo-American Company; and, moreover, it would appear to be based upon incontestable rights. For, on the one hand, to remove all foreign ships, once for all, from the coast above referred to, would be to put an end forever to the illegal operations which it is necessary to prevent. On the other hand—considering the Russian possessions, which extend on the northwest coast of America from the Bering Strait to the fifty-first degree of north latitude, as well as on the coast of Asia opposite and on the adjacent islands, from the same strait to 45°—it can not be denied that the sea of which these possessions form the bounds embraces all the conditions that the most widely known and best accredited publicists have attached to the definition of a closed sea, and that, therefore, the Russian Government has perfect authority to exercise the rights of sovereignty over that sea and particularly that of forbidding the approach of foreigners. Never- jtheless, however important the considerations may have been that claimed such a measure, however legitimate such a measure would in itself have been, the Imperial Government did not wish, on this occa- ' sion, to exercise a power which is assured to it by the most sacred title of possession, and which is, besides, confirmed by irrefragable authorities. The Government, however, limited itself—as can be seen by the newly published regulation—to forbidding all foreign vessels not only to land on the settlements of the American Company, and on the Peninsula of Kamsehatka and the coasts of the Okhotsk Sea, but also to sail along the coast of these possessions, and, as a rule, to approach them within 100 Italian miles. " Vessels of the Imperial Marine have just been sent to see that this arrangement is carried out. The arrangement appears to us to be as lawful as it is urgent. For, if it is shown that the Imperial Government had strictly the right to close to foreigners that portion of the Pacific Ocean which is bounded by our possessions in America and Asia, a fortiori the right in virtue of which it has just adopted a much less restrictive measure should not be called in question. This right, in effect, is universally admitted, and all maritime powers have exercised it more or less, in their colonial system." British Case, Vol. 2, App.,p.l. These official declarations of the Russian Govermment through its accredited representatives are in harmony with the words of the Ukase ■ of 1821. They show: (1) That the object of that Ukase was to prevent foreigners (to use the language of M. de Poletica) "from exercising upon 74 the coasts above mentioned an illicit trade very prejudicial to the rights reserved entirely to the Russian-American Company," and from furnishing " arms and ammunition to the natives in the Russian possessions in America," and (to use the language of Baron Nicolay) from landing " on the settlements of the American Company, and on the Peninsula of Kamsehatka and the coasts of Okhotsk Sea, and from sailing along the coasts of those possessions, and, as a rule, from approaching them within 100 Italian miles." (2) That, in order to accomplish those ends? foreign vessels were not to infringe upon "the line marked out in the • regulations," and therefore not to approach the coasts within a less distance than that specified. (3) That while Russia claimed that it could jnstly assert the rights of sovereignty over all the waters between the North American aud Asiatic Continents, from Bering Strait to the fifty-first degree of north latitude on the American side, and from the same strait to the forty-fifth degree of north latitude on the Asiatic side, it limited in the Ukase of 1821 its actual assertion of sovereignty over the waters within or inside of a certain line. It consequently, declared that the Ukase of 1821 had refereuce only to the waters within 100 Italian miles from the coasts mentioned. Additional proof of all this is found in the letter of Mr. Adams, the American Secretary of State, of March 30,1822, replying to the above communication from M. Poletica, and in the latter of M. Poletica to Mr. Adams, dated April, A. D. 1822. Mr. Adams, in his letter, said: "With regard to the suggestion that the Russian Government might have justified the exercise.of sovereignty over the Pacific Ocean as a close sea, because it claims territory both on its American and Asiatic shores, it may suffice to say that the distance from shore to shore on this, sea, in the latitude of 51 degrees north, is not less than 90 degrees of longitude or 4,000 miles." To this M. Poletica responded : "In the same manner the great extent of the Pacific Ocean at the fifty-first degree of north latitude can not invalidate the right which Russia may have of considering that part of the ocean as close. But as the Imperial Government has not thought it fit to take advantage of that right, all further discussion on this subject would be idle." U. 8. Case, Vol. 1, App., 134, 135. The next point in Article VI to be considered is that involved in the inquiry: " How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ?" 75 The use here of the word "jurisdiction" creates some doubt as to the precise object of the question. But it must be assumed that the purpose was to ascertain whether, in the judgment of this Tribunal, Great Britain recognized and conceded any claim of jurisdiction, upon the part of Russia, over the waters of Bering Sea, or over any.fisheries in that sea, outside of the ordinary limit of territorial waters. So interpreting the question, I have no doubt of the answer which must be made to it. The official correspondence between the governments of Great Britain and Russia shows that throughout the whole of the negotiations following the Ukase of 1821, and resulting in the treaty of 1825, Great Britain stood firmly by the position, not only that the territorial jurisdiction asserted by Russia on the northwest coast was in excess of what it was entitled to ; claim, but that the prohibition by that Ukase of the approach of foreign vessels nearer than 100 Italian miles to those coasts was an assertion of sovereignty over the open waters of the Sea, which was forbidden by the established principles of international law. Let us see what was recognized and conceded by Great Britain during her negotiations with Russia. In his communication of January 18,1822, addressed to Count Lieven, the Russian Ambassador at London, in reply to the letter of Bar on Nicolay, covering a copy of the Ukase of 1821, the Marquis of Londonderry, then at the head of the British Foreign Office, said: "Upon the subject of this Ukase generally, and especially upon the two main principles of claim laid down therein, viz, an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, His Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts, and in those seas, can be deemed to be illicit, or that the |ships of friendly powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown in the vast and very imperfectly occupied territories, could, by the acknowledged laws of nations, be excluded from navigating within the distance of 100 Italian miles as therein laid down, from the coast, the exclusive dominion of which is assumed (but, as His Majesty's Government conceive, in error) to belong to His Imperial Majesty, the Emperor of all the Russias." British Case, Vol. 2, App., 14. 76 Subsequently, September 27,1822, Mr. George Canning, the successor of Lord Londonderry, in the British Foreign Office, writing to the Duke of Wellington, who had been commissioned to acquaint the Russian Government with the views held by the British Government said that with respect to the points in the Ukase which had -the effect of extending the territorial rights of Russia over the adjacent seas to the " unprecedented " distance of 100 miles from the line of coast, and of closing a hitherto unobstructed passage (through Bering Straits), at that time the object of important discoveries for the promotion of general commerce and navigation, those pretensions were considered by the best legal authorities as positive innovations on the right of navigation, and as such, could receive no explanation from further discussion, nor by any possibility be justified. Common usage, he said, which has obtained the force of law, had indeed assigned to coasts and ' shores an accessorial boundary to a short limited distance for purposesof protection and general convenience, in no manner interfering with the rights of others, and not obstructing the freedom of general commerce and navigation. But that important qualification, he observed, the extent of Russia's claim entirely excluded, and when such a prohibition was applied to a long line of coasts, and also to intermediate islands in remote seas, where navigation was beset with innumerable and unforeseen difficulties, and where the principal employment of the fisheries must be pursued under circumstances that were incompatible with the prescribed courses," all particular considerations concur, in an especial manner, with the general principle, in repelling such a pretension as an encroachment on the freedom of navigation, and the inalienable rights of all nations." He expressed satisfaction in believing from a conference which he had had with Count Lieven that upon these two points—"the attempt to shut up the passage altogether, and the claim of exclusive dominion to so enormous a distance from the coast—the Russian Government are prepared entirely to waive their pretensions." British Case, Vol. II, App., 22. After receiving this letter, the Duke of Wellington, November 28, 1822, delivered to Count Nesselrode, at the head of the Russian ministry, a confidential memorandum, in which he objected first, to the claim of sovereignty set forth in the Ukase; and, secondly, to the mode in which it is exercised. "The best writers on the laws of nations," he observed, "do not attribute exclusive sovereignty, particularly of continents, 'to those who have first discovered them, and although 77 we might on good grounds dispute with Russia the priority of discovery of these continents, we contend that the mnch more easily proved, more conclusive, and more certain title of occupation and use ought to decide the claim of sovereignty." He explicitly declared that Great Britain could not admit the right of any power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to the distance of 100 Italian miles. British Case, Vol. II, p. 23. The Duke of Wellington, writing on the'same day to Count Lieven and repeating the objection of the British Government to the Ukase, so far as it assumed for Russia an exclusive sovereignty in the continent of North America, observed: "The second ground on which we object to the Ukase is that His Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations, and we cannot found a negotiation upon a paper in which it is again broadly asserted. We contend that no power whatever can exclude another from the use of the open sea. A power can exclude itself from the navigation of a certain coast, sea, etc., by its own act or engagement, but it cannot by right be excluded by another." British Case, Vol. II, App. 25. I am unable to find a single sentence in all the diplomatic correspondence that took place between Russia and Great Britain, touching the Ukase of 1821, showing, or tending to show, that Great Britain modified, in the slightest degree the position taken by its representatives from the very outset, namely, that the maritime jurisdiction or authority claimed by Russia, upon whatever ground rested, to the extent of 100 Italian miles from its coasts, was inconsistent with the law of nations. On the contrary, after the expiration of more than two years without an agreement being reached as to the disputed questions of maritime supremacy and territorial sovereignty, and when serious apprehensions were felt that no satisfactory solution of those questions would be reached, Mr. Stratford Canning was sent by the British Government to St. Petersburg as Plenipotentiary to effect, if possible, a settlement of the pending dispute. He received a letter of instructions from Mr. George Canning, in which will be found an extended review of all previous efforts to accommodate the differences between the two countries, and a full statement of the grounds upon which Great Britain stood iu respect to this Ukase. 78 m If any doubt could arise from previous correspondence as to whether Great Britain recognized and conceded any jurisdiction upon the part of Russia in the waters of Bering Sea, outside of ordinary territorial limits, as those limits are defined by international law, that doubt will be removed by the examination of the letter of Mr. George Canning to Mr. Stratford Canning, of December 8,1824, which was after the Treaty of 1824 between the United States and Russia was signed. That letter, inclosing a projet of settlement, is too lengthy to be inserted in full here, and the following extract from it must suffice: " The whole negotiation grows out of the Ukase of 1821. So entirely and absolutely true is this proposition that the settlement of the limits of the respective possessions of Great Britain and Russia on the Northwest coast of America was proposed by us only as a mode of facilitating the adjustment of the difference arising from the Ukase by enabling the Court of Russia, under the cover of a more comprehensive arrangement, to withdraw, with less appearance of concession, the offensive pretensions of that edict. It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possession on the continent of America, but the pretensions of the Russian Ukase of 1821 to exclusive dominion over the Pacific could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it. * * I That this Ukase is not acted upon, and that instructions have been long ago sent by the Russian Government to their cruisers in the Pacific to suspend the execution of its provisions, is true; but a private disavowal of a published claim is no security against the revival of that claim. The suspension of the execution of a principle may be perfectly compatible with the continued maintenance of the principle itself, and when we have seen iu the course of this negotiation that the Russian claim to the possession of the coast of America down to latitude 59° rests in fact on no other ground than the presumed acquiescence of the nations of Europe in the provisions of the Ukase published by the Emperor Paul in the year 1800 [1799], against which it is affirmed that no public remonstrance was made, it becomes us to be exceedingly careful that we do not, by a similar neglect, on the present occasion allow a similar presumption to be raised as to an acquiescence in the Ukase of 1821. The right of the subjects of His Majesty to navigate freely in the Pacific can not be held as a matter of indul- 79 gence from aDy power. Having once been publicly questioned itmust be publicly acknowledged. * * * "It will, of course, strike the Russian plenipotentiaries that by the adoption of the American article respecting navigation, etc., the provision for an exclusive fishery of two leagues from the coasts of our respective possessions falls to the ground. But the' omission is, in truth, immaterial. The law of nations assigns the exclusive sovereignty of one league to each power on its own coasts, without any specific stipulation, and though Sir Charles Bagot was authorized to sign the convention with the specific stipulation of two leagues, in ignorance of what had been decided in the American convention at the time, yet, after that convention has been some months before the world, and after the opportunity of consideration has been forced upon us by the act of Russia herself, we can not now consent in negotiating de novo to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contrast between the United States and us to our disadvantage. Count Nesselrode himself has frankly admitted that it was natural that we should expect, and reasonable that we should receive, at the hands of Russia, equal measure in all respects, with the United States of America. "It remains only, iu recapitulation, to remind you of the origin and principles of the whole negotiation. It is not on our part essentially a negotiation about limits. It is the demand of the repeal of an offensive and unjustifiable arrogation of exclusive jurisdiction over an ocean of unmeasured extent, but a demand qualified and mitigated in its manner in order that its justice may be acknowledged and satisfied without soreness or humiliation on the part of Russia. We negotiate about territory to cover the remonstrance upon principle. But any attempt to take undue advantage of this voluntary facility we must oppose. If the present 'projet' is agreeable to Russia, we are ready to conclude and sign the treaty. If the territorial arrangements are not satisfactory, we are ready to postpone them; and to conclude and sign the essential part, that which relates to navigation alone, adding an article, stipulating to negotiate about territorial limits hereafter. But we are not prepared to defer any longer the settlement of that essential part of the question, and if Russia will neither sign the whole convention nor that essential part of it, she must not take it amiss that we resort to some mode of recording in the face of the world our protest against the pretensions of the Ukase of 1821, and of effectually securing our 80 own interests against the possibility of its future operation." British Case, Vol. 2, App., 73. The opposition of Great Britain to Russia's claim of maritime supremacy within 100 Italian miles from the coasts mentioned in the Ukase of 1821 was not more decided or persistent than that of the United States. The action taken by the United States is not irrelevant to the present discussion, because, as will presently appear, its counsel insists that Russia's treaty of 1825 with Great Britain is to be interpreted to mean just what the treaty of 1824 with the United States was understood by Russia, with the knowledge of the United States, to mean. Referring to the reasons assigned by M. Poletica upon which Russia based the territorial and maritime claims asserted in that Ukase, Mr. Adams, the American Secretary of State, said, in reply: "This pretension is to be considered not only with reference to the question of territorial right, but also to that prohibition to the vessels of other nations, including those of the United States, to approach within 100 Italian miles of the coasts. From the period of the existence of the United States as an independent nation, their vessels have freely navigated those seas, and the right to navigate them is a part of that independence." Again: "As little can the United States accede to the justice of the reason assigned for the prohibition above mentioned. Therightof the citizens of the United States to hold commerce with the aboriginal natives of the northwest coast of America, without the territorial jurisdiction of other nations, even in arms and munitions of war, is as clear and indisputable as that of navigating the seas. That right has never been exercised in a spirit unfriendly to Russia; and, although general complaints have occasionally been made on the subject of this commerce by some of your predecessors, no specific ground of charge has ever been alleged by them of any transaction in it by which the United States were, by the ordinary laws and usages of nations, bound either to restrain or punish. Had any such charge been made, it would have received the most pointed attention of this Government, with the sincerest and firmest disposition to perform every act and obligation of justice to yours which could have been required. I am commanded by the President of the United States to assure you that this disposition will continue to be entertained, together with the earnest desire that the harmoniousrelations between the two countries may be preserved. 81 Relying upon the assurance in your note of similar dispositions reciprocally entertained by His Imperial Majesty towards the United States, the President is persuaded that the citizens of this Union will remain unmolested in the prosecution of their lawful commerce, and that no effect will be given to an interdiction manifestly incompatible with their rights." U. 8. Case, Vol. 1, App., 134. Mr. Middleton, the American minister at St. Petersburg, writing to Mr. Adams under date of August 8, 1822, said: " To Mr. Speransky, Governor-General of Siberia, who had been one of the committee originating this measure, I stated my objections at length. He informed me that the first intention had been (as M. Poletica afterward wrote you) to declare the northern portion of the Pacific Ocean as mare clausum, but that idea being abandoned, probably on account of its extravagance, they determined to adopt the more moderate measure of establishing limits to the maritime jurisdiction on then- coasts, such as should secure to the Russian American Fur Company the monopoly of the very lucrative traffic they carry on. In order to do this they sought a precedent and found the distance of 30 leagues named in the treaty of Utrecht, and which may be calculated at .about 100 Italian miles, sufficient for all purposes. I replied ironically that a still better precedent might have been pointed out to them in the papal bull of 1493, which established as a line of demarcation between the Spaniards and Portuguese a meridian to be drawn at the distance of 100 miles west of the Azores, and that the expression 'Italian miles' used in the Ukase, very naturally might lead to the conclusion that this was actually the precedent looked to. He took my remarks in good part, and I am disposed to think that this conversation led him to make reflections which did not tend to confirm his first impressions, for I found him afterward at different times speaking confidentially upon the subject. For some time past I began to perceive that the provisions of the Ukase would not be persisted in. It appears to have been signed by the Emperor without sufficient examination, and may be fairly considered as having been surreptitiously obtained. There can be little doubt, therefore, that with a little patience and management it will be molded into a less objectionable shape." U. S. Case, Vol. 1, App. 136. But this is not at all. Mr. Adams, writing to Mr. Middleton, under date of July 22,1823, said: " From the tenor of the Ukase the pretensions of the Imperial Government extend to an exclusive territorial 11492 6 82 jurisdiction from the forty-fifth degree of north latitude, on the Asiastic coast, to the latitude of fifty-one north on the western coast of the American continent; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of the coast. The United States can admit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exeroise from the earliest times, after the peace of 1783, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, so far as Russian rights are concerned, are confined to certain islands north of the fifty-fifth degree of latitude, and have no existence in the continent of America." U. S. Case, Vol. 1, App., 241. As tending further to show the construction placed by the United States upon the Ukase of 1821, and its decided opposition to the pretensions of Russia, reference may be made to the letter of Mr. Adams, written under date of July 23,1823, to Mr. Rush, the American minister at London. In that letter Mr. Adams said: "By the Ukase of the Emperor Alexander of tho 4th (16th) of September, 1821, an exclusive territorial right on the northwest coast of America is asserted as belonging to Russia, and as extending from the northwest extremity of the continent to latitude 51°, and the navigation and fishing of all other nations are interdicted by the same Ukase to the extent of 100 Italian miles from the coast. When M. Poletica, the late Russian minister here, was called upon to set forth the grounds of right conformable to the laws of nations which authorized the issuing of this decree, he auswered in his letters of February 28 and April2,.1822,byallegingfirst discovery, occupancy, and uninterrupted possession. It appears upon examination that these claims have no foundation in fact." In the same letter, after combating these claims and referring to the peculiar relations held by the United States to the question of colonial establishments on the North American continent, Mr. Adams said: "A ueeessary consequence of this state of things will be that the American continents henceforth will no longer be subjects of colonization. Occupied by civilized independentnations, they will be accessible to Europeans and to each other on that footing alone, and the Pacific Ocean in every part of it will remain open to the navigation of all nations in like manner with the Atlantic. Incidental to the condition of National independence and sovereignty, the rights of anterior navi- 83 gation of their rivers will belong to each of the American nations within its own territories. The application of colonial principles of exclusion, therefore, can not be admitted by the United States as lawful on any part of the northwest coast of America, or as belonging to any European nation. Their own settlements there, when organized as territorial governments, will be adapted to the freedom of their own institutions, and, as constituent parts of the Union, be subject to the principles and provisions of their constitution. The right of carrying on trade with the natives throughout the northwest coast they (the United States) can not renounce. With the Russian settlements at Kodiak, or at New Archangel, they may fairly claim the advantage of a free trade, having so long enjoyed it unmolested, and because it has been and would continue to be as advautageous at least to those settlements as to them. But they will not contest the right of Russia to prohibit the traffic, as strictly confined to the Russian settlement itself and not extending to the original natives of the coast." U. 8. Case, Vol. 1, App., 145, 146, 148. Further reference to the diplomatic correspondence relating to the the Ukase of 1821 would seem to be unnecessary. The evidence is overwhelming that the positions taken by the United States and Great Britain were substantially alike, namely, that Russia claimed more territory on the northwest coast of America than it had title to, either by discovery or occupancy, and that its interdict of the approach of foreign vessels nearer to its coasts than 100 Italian miles was contrary to the principles of international law and in violation of the rights of the citizens and subjects of other countries engaged in lawful business on the waters covered by that regulation. The negotiations between Russia and the United States resulted in the treaty of 1824, the material parts of which are as follows: "Aet. 1. It is agreed that in any part of the Great Ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the High Contracting Powers shall be neither disturbed nor restrained either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied for the purpose of trading with the natives, saving always, the restrictions and conditions determined by the following articles. | Art. 2. With a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the High Contracting Powers from becoming the pretext for an illicit 84 trade, it is agreed that the citizens of the United States shall not resort to any point where there is a Russian establishment, without the perr mission of the Governor or Commander; and that, reciprocally, the subr jects of Russia shall not resort, without permission to any establishment of the United States upon the Northwest Coast. "Art. 3. It is moreover agreed that, hereafter, there shall not be formed by the citizens of the United States, or under the authority of the said States, any establishment upon the Northwest Coast of America, nor in any of the islands adjacent, to the north of 54° 40' north latitude; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel. "Art. 4. It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both powers or which may belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors and creeks, upon the coast mentioned in the preceding Article, for the purpose of fishing and trading with the natives of the country." U. S. Stat. vol. 8, p. 302. The negotiations between Russia and Great Britain resulted in the treaty of 1825, as follows: " I. It is agreed that the respective subjects of the high contracting Parties shall not be troubled or molested, in any part of the Great Ocean, commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following articles. "II. In order to prevent the right of navigating and fishing, exercised upon the ocean by the subjects of the high contracting Parties, from becoming the pretext of an illicit commerce, it is agreed that the subjects of His Britannic Majesty shall not laud at any place where there may be a Russian establishment, without the permission of the Governor or Commandant; and on that other hand, that Russian subjects shall not land, without permission, at any British establishment of the Northwest coast. " III. The line of demarkation between the possessions of the high contracting Parties, upon the coast of the continent and the Islands of America to the Northwest, shall be drawn in the manner following: 85 Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees forty minutes, north latitude, and between the one hundred and thirty-first, and the one hundred and thirty-third degree of west longitude (Meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the continent where it strikes the fifty-sixth degree of north latitude; from this last mentioned point the line of demarkation shall follow the summit of the mountains situated parallel to the coast, as far as the point of intersection of the one hundred and forty-first degree, of west longitude (of the same meridian) and, finally, from the said point of intersection, the said meridian line of the one hundred and forty-first degree, in its prolongation as far as' the Frozen Ocean, shall form the limit between the Russian aud British possessions on the continent of America to the Northwest. "IV. With reference to the line of demarkation laid down in the preceding article it is understood: First. That the Island called Prince of Wales Island shall belong wholly to Russia. Second. That wherever the summit of the mountains which extend in a direction parallel to the coast, from the fifty-sixth degree of north latitude to the point of intersection of the one hundred and forty-first degree of west longitude, shall prove to be at the distance of more than fen marine leagues from the ocean, the limit between the British possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of ten marine leagues therefrom. " V. It is moreover agreed, that no establishment shall be formed by either of the two parties within the limits assigned by the two preceding articles to the possessions of the other; consequently, British subjects shall not form any establishment either upon the coast, or npon the border of the continent comprised within the limits of the Russian possessions, as designated in the two preceding articles; and, in like manner, no establishment shall be formed by Russian subjects beyond the said limits. "VI. It is understood that the subjects of H! Britannic Majesty, from whatever quarter they may arrive, whether from the ocean, or from 86 the interior of the continent, shall forever enjoy the rightof navigating freely, and without any hindrance whatever, all the rivers and streams which, in their course towards the Pacific Ocean, may cross the line of demarkation upon the line of coast described in article three of the present Convention. "VII. It is also understood that for the space of ten years from the signature of the present convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks on the coast mentioned in article three for the purposes of fishing and trading with the natives. " VIII. The port of Sitka, or Nova Archangelsk, shall be open to the commerce and vessels of British subjects for the space of ten years from the date of the exchange of the ratifications of the present convention. In the event of an extention of this term of ten years being granted to any other power, the like extention shall be granted also to Great Britain. " IX. The above-mentioned liberty of commerce shall not apply to the trade in spirituous liquors, in fire-arms, or other arms, gunpowder or other warlike stores; the high contracting Parties reciprocally engaging not to permit the above-mentioned articles to be sold or delivered, in any manner whatever, to the natives of the country. " X. Every British or Russian vessel navigating the Pacific Ocean, which may be compelled by storms or by accident, to take shelter in the ports of the respective Parties, shall be at liberty to refit therein, to provide itself with all necessary stores, and to put to sea again, without paying any other port and lighthouse dues, which shall be the same as those paid by national vessels. In case, however, the master of such vessel should be under the necessity of disposing of a part of his merchandise in order to defray his expenses, he shall con form himself to the regulations and tariffs of the place where he may have landed." From these treaties it will be seen that the respective subjects or citizens of the High Contracting Parties were not to be molested or disturbed in navigating, or in fishing in, any part of the Pacific Ocean, or in lauding on the coasts of either country, not then occupied, in order to trade with the natives, except under certain specified- conditions which have no bearing upon the present controversy. 87 We now come to the third point in Article vi of the Treaty— Was the body of water now knoion as tlie Bering Sea included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after said treaty? An affirmative answer to this question would sustain the position taken by Mr. Blaine, to the effect that the treaty of 1825, as between Russia and Great Britain, had reference only to the dispute in respect to the boundary line between those countries on the northwest coast of America, south of the 60th degree of north latitude, and to the waters of the Pacific Ocean sonth of the Alaskan Peninsula, and in no way to the waters of Bering Sea, or to the Ukase of 1821 in its application to the waters of that Sea. If that position was well taken, it might be fairly contended that Great Britain by signing the .treaty of 1825, impliedly recognized, or determined not to further question, the validity of the Ukase of 1821 in its application to the waters of Bering Sea, for the distance of 100 Italian miles from its shores aud islands in that sea. But if "Pacific Ocean" in the treaty of 1825 embraced Bering Sea, it would follow that that treaty had the effect to annul or withdraw that Ukase, so far as it asserted authority in Russia to molest or disturb the subjects of Great Britain in navigating, or fishing in, any of the open waters of Bering Sea or of the north Pacific Ocean. It will be observed that there is no substantial difference between the treaties of 1824 and 1825, in respect to the description given of the waters in which the citizens or subjects of the High Contracting Parties were to enjoy freedom of navigation and fishing. The words in the treaty of 1824, "the Great Ocean, commonly called the Pacific Ocean or South Sea," evidently describe the same waters as the words, "the Great Ocean, commonly called the Pacific Ocean," in the treaty of 1825. Before the latter treaty was negotiated the British Government had in its possession a copy of the treaty between Russia and the United States. Mr. George Canning, in his letter of December 8th, 1824, referring to a projet proposed by Great Britain, and which Russia rejected, and to a counter projet proposed by Russia which Great Britain had rejected, said that the stipulation for free navigation in the Pacific stood in the front of the Convention concluded between Russia and theUnited States of America; that no reason existed why upon similar claims Great Britain 88 should not obtain exactly the like satisfaction; that for reasons of the same nature Great Britain could not consent that the liberty of navigation through Bering Straits be stated in the treaty as a boon from Russia; that the tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which Great Britain on its own behalf, and on that of the whole civilized world, protested. No specification of this sort, he said, was found in the Convention with the United States of America, and yet it could not be doubted that the Americans considered themselves as secured in the right of navigating Bering Straits and the sea beyond them. " It can not be expected," he said, "that England should receive as a boon that which the United States hold as a right so unquestionable as not to be worth recording. Perhaps the simplest course after all will be to substitute, for all that part of the 'projet1 and 'counter projet' which relates to maritime rights and to navigation, the first two articles of the convention already concluded by the court of St. Petersburg with the United States of America in the order in which they stand in that convention. Russia can not mean to give to the United States of America what she withholds from us; nor to withhold from us anything that she has consented to give to the United States. The uniformity of stipulations in pari materia gives clearness aud force to both arrangements, and will establish that footing of equality between the several contracting parties which it is most desirable should exist between three powers whose interests come so nearly in contact with each other in a part of the globe in which no other power is concerned." British Case, Vol. 2, App.,73. In view of these and similar declarations by British representatives, made before the negotiation of the treaty of 1S25, it is earnestly contended that that treaty must receive the same interpretation that would be given to the treaty of 1824 as construed by Russia and the United States. And it is said that Russia and the United States, before the ratification of the treaty of 1824, substantially agreed that that treaty did not refer to the waters of Bering Sea, and, consequently, it is argued, "Pacific Ocean," as used in both treaties, must be held not to include that Sea. The facts upon which these contentions, in respect to the treaty of 1824, are based, may be thus summarized: The treaty of 1824 was signed at St. Petersburg April 5 (17), 1824. ■fc 89 Shortly thereafter the Russian-American Company represented to the Russian Government that consequences injurious to its rights might result from its ratification. The subject was referred by the Emperor to a committee,.at the head of which was Count Nesselrode. That committee, July 21,1824, made a report, which received the approval of the Emperor. After enumerating the advantages that would accrue to Russia from carrying out the treaty, the report proceeds: " 7. That as the sovereignty of Russia over the coasts of Siberia and the Aleutian "Islands has long been admitted by all the powers, it follows that the said coasts and islands can not be alluded to in the articles of the said treaty, which refers only to the disputed territory on the northwest coast of America and to the adjacent islands; that, even supposing the contrary, Russia has established permanent settlements, not only on the coast of Siberia but also on the Aleutian group of islands; hence, American subjects could not, by virtue of the second article of the treaty of April 5-17 land at the maritime places there, nor carry on sealing and fishing without the permission of our commandants or governors. Moreover, the coasts of Siberia and tho Aleutian Islands are not washed by tho Southern Sea, of which alone mention is made in the first article of the treaty, but by the Northern Ocean and the seas of Kamchatka and Ohkotsk, which form no part of the Southern Sea on any known map or in any geography. 8. Lastly, we must not lose sight of the fact that, by the treaty of April 5-17all the disputes to which the regulations of September 4 (16), 1821, gave rise, are terminated, which regulations were issued at the formal and reiterated request of the-Russian-American Company; that those disputes had already assumed important proportions, and would certainly be renewed if Russia did not ratify the treaty, in which case it would be impossible to foresee the end of them or their consequences. These weighty reasons impel the majority of the members of the committee to state as their opinion: " That the treaty of April 5-17 must be ratified, and that, for the prevention of any incorrect interpretation of that act, Gen. Baron Tuyll may be instructed at the proper time to make the declaration mentioned in the draft of the communication read by Count Nesselrode. The Minister of Finance and Acting State Counselor Drushinin, while admitting the necessity of ratifying the treaty of April 5-17, express and place on record the special opinion hereto annexed in the proctocol, to the effect that Baron Tuyll should be instructed at the exchange of 90 the ratification of that treaty to stipulate that tho right of free hunting and fishing granted by the twelfth article of the said treaty shall extend only from 64° 40' to the latitude of Cross Sound." U. S. Counter Case, 156,157. This report was communicated by the Russian Minister of Finance to the Russian-American Company, in a communication which closed with these words: "From these documents the board will see that, for the avoidance of all misunderstandings in the execution of the above mentioned convention, and in conformity with the desire of the company, the necessary instructions have already been given to Baron Tuyll, our minister at Washington, to the effect that the northwestern coast of America, along the extent of which, by the provisions of the convention, free trading and fishing are permitted subjects of the North American States, extends from 54° 40' northwards to Vakutat (Bering) Bay." U. S. Counter Case, 155. The instructions received by Baron Tuyll from his Government were communicated by him informally to Mr. Adams, the American Secretary of State. This appears from the Diary of Mr. Adams, under date of December 5,1824, at which time the treaty of 1824 had not been approved by the United States Senate. The account which Mr. Adams gives in his -Diary of Baron Tuyll's interview with him, is as follows: " 6th, Monday.—Baron Tuyll, the Russian Minister, wrote me a note requesting an immediate interview, in consequence of instructions- received yesterday from his court. He came, and after intimating that he was under some embarrassment in executing his instructions, said that the Russian American Company, upon learning the purport of the northwest coast convention, concluded last June by Mr. Middleton, were extremely dissatisfied ("a jete des hauts oris"), and by means of their influence had prevailed upon his Government to send him these instructions upon two points. One was, that he should deliver, upon the exchange of the ratifications of the convention, an explanatory note, purporting that the Russian Government did not understand that the convention would give liberty to the citizens of the United States to trade on the coasts of Siberia and the Aleutian Islands. The other was, to propose a modification of the convention by which our vessels should be prohibited from trading on the northwest coast north of latitude 57. With regard to the former of these points he left with mo a minute in writing. 91 "I told him that we should be disposed to do everything to accommodate the views of his Government that was in our power, but that a modification of the convention could be made no otherwise than by a new convention, and tltat the construction of the convention as concluded belonged to other departments of the Government, for which the Executive had no authority .to stipulate; that il on the exchange of the ratifications he should deliver to me a note of the purport of that which he now informally gave me, I should give him an answer of that import, namely, that the construction of treaties depending here upon the judiciary tribunals, the Executive Government, even if disposed to acquiesce in that of the Russian Government as announced by, him, could not be binding upon the courts nor upon this nation. I added that the couvention would be submitted immediately to the Senate; that if anything affecting its construction, or, still more, modifying its meaning, were to be presented on the part of the Russian Government before or at the exchange of ratifications, it must be laid before the Senate, and could have no other possible effect than of starting doubts and perhaps hesitation in that body, and of favoring the views of those, if such there were, who might wish to defeat the ratification itself of the convention. This was an object of great solicitude to both Governments, not only for the adjustment of a difficult question which had arisen between them, but for the promotion of that harmony which was so much in the policy of the two countries, which might emphatically be-termed natural friends to each other. If, therefore, he would permit me to suggest to him what I thought would be his best course, it would beto wait for the exchange of the ratifications and make it purely and simply; that afterwards, if the instructions of his Government were imperative, he might present the note, to which I now informed him what would be in substance my answer. It necessarily could not be otherwise. But if his instructions left it discretionary with him, he would do still better to inform his government of the state of things here, of the purport of our conference, and of what my answer must be if he should present the note. I believed his court would then deem it best that he should not present the note at all. Their apprehensions had been excited by an interest not very friendly to the good understanding between the United States and Russia. Our merchants would not go to trouble the Russians on the coast of Siberia or north of the fifty-seventh degree of latitude, aud it was wisest not to put 92 such fancies into their heads. At least, the Imperial Government might wait to see the operation of the convention before taking any further step, and I was confident they would hear no complaint resulting from it. If they should, then would be the time for adjusting the construction or negotiating a modification of the convention; and whoever might be at the head of the administration of the United States, he might be assured that every disposition would be cherished to remove all causes of dissatisfaction and to accommodate the wishes and the just policy of the Emperor. " The Baron said that these ideas had occurred to himself; that he had made this application in pursuance of his instructions, but he was aware of the distribution of powers in our Constitution and of the incompetency of the Executive to adjust questions. He would, therefore, wait for the exchange of the ratifications without presenting his note, and reserve for future consideration whether to present it shortly afterwards or to inform his court of what he had done and ask their further instructions as to what he shall definitively do on the subject. He therefore requested me to consider what had now passed between us as if it had not taken place ("non a venu"), to which I readily assented, assuring him, as I had done heretofore, that the President had the highest personal confidence in him and in his exertions to foster the harmony between the two countries. I reported immediately to the President the substance of this conversation, and he concurred in the propriety of the baron's final determination." Memoirs of John Quinty Adams, Vol. 6, p. 435. In conformity (it may be assumed) with Mr. Adams' advice or intimations Baron Tuyll forebore to file any official note upon the subject prior to the ratification of the treaty by the United States. The treaty having been ratified January 15, 1825, and January 25, 1825, Baron Tuyll, under instructions from his Government, filed in the Department of State, the following Explanatory Note: a Explanatory note to be presented to the Government of the United States at the time of the exchange of ratifications, with a view to removing with more certainty all occasion for future discussions, by means of which it will be seen that the Aleutian Islands, the coast of Siberia, and the Russian possessions in general on the northwest coast of America to 59° 30' of north latitude are positively excepted from the liberty of, hunting, fishing, and commerce stipulated in favor of citizens of the United States for ten years. 93 " This seems to be only a natural consequence ot tne stipulations agreed upon, for the coasts of Siberia are washed by the Sea of Okhotsk, the Sea of Kamschatka, and the Icy Sea, and not by the South Sea mentioned in the first article of the convention of April 5 (17), 1824. The Aleutian Islands are also washed by the Sea of Kamschatka, or Northern Ocean. "It is not the intention of Russia to impede the free navigation of the Pacific Ocean. She would be satisfied with causing to be recognized, as well as understood and placed beyond all manner of doubt, the principle that beyond 59° 30' no foreign vessel can approach her coasts and her islands, nor fish nor hunt within the distance of two marine leagues. This will not prevent the reception of foreign vessels which have been damaged or beaten by storm." U. S. Case, Vol. 1, App., 275; Memoirs of John Quincy Adams, Vol. 6, p. 435. In respect to these matters Mr. Blaine observed: "Of course his (Baron Tuyll's) act at that time did not affect the text of the treaty, but it placed in the hands of the Government of the United States an unofficial note which significantly told what Russia's construction of the treaty would be if, unhappily, any difference as to its meaning should arise between the two governments. But Mr. Adams' friendly intimation removed all danger of dispute, for it conveyed to Russia the assurance that the treaty as negotiated contained, in effect, the provisions which the Russian note was designed to supply. From that time until Alaska, with all its rights of land and water, was transferred to the United States—a period of forty-three years—no actorword on the part of either government ever impeached the full validity of the treaty as it was understood both by Mr. Adams and Baron Tuyll at the time it was formally proclaimed. While these important matters were transpiring in Washington negotiations between Russia and England (ending in the treaty of 1825) were in progress in St. Petersburg. The instructions to Baron Tuyll concerning the Russian-American treaty were fully reflected in the care with which the Anglo-Russian treaty was constructed—a fact to which I have already adverted in full. There was, indeed, a possibility that the true meaning of the treaty with the United States might be misunderstood, and it was, therefore, the evident purpose of the Russian Government to make the treaty with England so plain and so clear as to leave no room for doubt and to baffle all attempts at misconstruction. The Government of the United States finds the full advantage to it in the caution taken by Russia in 94 1825, and can, therefore, quote the Anglo-Russian treaty with the utmost confidence that its meaning can not be changed from that clear, unmistakable text which throughout all the articles sustains the American contention. The Explan atory Note filed with this Government by Baron TuyHis so plain in its text that after the lapse of sixty-six years the exact meaning can neither be misapprehended nor misrepresented. It draws the distinction between the Pacific Ocean and the waters now known as the Bering Sea so particularly and so perspicuously that no answer can be made to it. It will bear the closest analysis in every particular. It is not the intention of Russia to impede the free navigation of the Pacific Ocean. This frank and explicit statement shows with what entire good faith Russia had withdrawn in both treaties the offensive Ukase of Alexander so far as the Pacific Ocean was made subject to it. Another avowal is equally explicit, viz, that the coast of Siberia, the northwest coast of America to 59° 30' north latitude—that is, down to 59° 30', the explanatory note reckoned from north to south—and the Aleutian Islands are positively excepted from the liberty of hunting, fishing, and commerce, stipulated in favor of citizens of the United States for ten years." TJ. S. Case, Vol. I, App., 277, 278. It seems to me that the interview between Baron Tuyll and Mr. Adams is of far less consequence than that attached to it by Mr. Blaine. Nor, in my judgment, are the inferences which he draws from it justified by the facts as disclosed by the Russian documents and by the Diary of Mr. Adams. Recurring to the treaty of 1824, it will be remembered that Article 1 seeured to the respective citizens and subjects of the contracting powers freedom of navigation and fishing in every part of the Great Ocean commonly called the Pacific Ocean, or South Sea, and also the right to resort to coasts upon points not then occupied for the purpose of trading with the natives, subject to or saving the restrictions-aud conditions prescribed in the succeeding aricles. Among those conditions were: 1. By Article H, citizens of the United States should not resort to any point where there was a Russian establishment without the permission of the Government or commander, and the subjects of Russia should not resort, without permission, to any estab- .lishment of the United States upon the northwest coast. 2. By Article III, neither the United States nor its citizens should form any establishment upon the northwest coast of America, nor in the islands adjacent, to the north of fifty-four degrees and forty minutes of 95 north latitude, and that, in the same manner, there shall be none formed by Russian subjects or under the authority of Russia south of the same parallel. But by Article IV it was provided that for a period often years the ships of either country might frequent the interior seas, gulfs, harbors, and creeks, npon the coast mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country. Now it is apparent from the proceedings of the Nesselrode conference of July 21, 1824, the Diary of Mr. Adams, and the Explanatory Note of Baron Tuyll, that the Russian-American Company were not at all disturbed by the broad recognition in Article I of freedom of navigation and fishing throughout the whole of the Great Ocean. Their uneasiness had reference to the possibility that the treaty could be construed as giving the right for ten years to trade on the coast of Siberia and the Aleutian Islands. The substance of the answer made by the Russian Government to the Russian-American Company was that the article of the treaty reserving the right to resort for ten years to certain "interior seas, gulfs, harbors, and creeks" referred to the waters that washed the coast mentioned in Article HI, which was the coast most in dispute between the two countries, and, therefore, did not authorize citizens of the United States to trade on the coasts of Siberia and the Aleutian Islands which were never in dispute, and over which Russia for a long time, and without question, had exercised sovereign authority; in other words, that the privilege of trading for ten years did not extend to the coast of Siberia, or to the Aleutian Islands, or to the Russian possessions in general on the entire northwest coast of America, but only to the coasts, embracing the territory in dispute between the two countries, south of 59° 30' north latitude. Nowhere in the documents referred to is there a suggestion that Russia understood the treaty of 1824 as reserving to itself any iieculiar or paramount authority over the waters of the Pacific Ocean outside of the ordinary limit of territorial jurisdiction. The only part of any document implying that, in the judgment of the Russian authorities, the treaty had no reference to Bering Sea, is the statement incidentally in the proceedings of the Nesselrode Conference and in the Explanatory Note of Baron Tuyll, to the effect that the coasts of Siberia and the Aleutian Islands were not washed "by the Southern Sea" mentioned iu Article II. But there is no evidence in Mr. Adams's Diary that he assented to this view. He waived any discussion of the question. 96 It was impossible for him to have'assented to the views of Baron Tuyll except upon the theory that he recognized the treaty of 1824 as having no reference at all to the waters of the Bering Sea as part of the Great Ocean commonly called the Pacific Ocean or South Sea, a conclusion at variance with all that he contended for throughout the negotiations arising from the Ukase of 1821. In my opinion, Mr. Blaine was mistaken in saying that Mr. Adams expressed his concurrence in Baron Tuyll's interpretation of the treaty of 1824. It is, I think, quite clear that Mr. Adams prudently withheld any expression of his opinion, disclaiming authority in himself or in the President of the United States to change or give any binding interpretation of the treaty. He frankly stated to Baron Tuyll that the treaty as made must, when ratified, be carried out according to its proper interpretation and meaning. He warned him that if, on the exchange of the ratifications, he should deliver a note of the purport of that informally delivered, he, Mr. Adams, should tell him "that the construction of treaties depending here upon the judiciary tribunals, the Executive Government, even if disposed to acquiesce in that of the Russian Government as announced by him, could not be binding upon the courts nor upon this nation." Baron Tuyll distinctly said that he understood the relations subsisting in America between the executive and judicial departments of Government. So that the utmost that can be said is, that the United S tates had notice, before the rati (ication of the treaty of 1824, of the interpretation which Russia, possibly, at some future time, would place upon the treaty, so far as it embraced the subject to which Baron Tuyll referred in his Explanatory Note. The material inquiry, however, Is whether Great Britain had any notice of what took place in the interview between Baron Tuyll and Mr. Adams. This question must be answered in the negative. It is not claimed that the Explanatory Note of Baron Tuyll was ever published or brought to light from the files of the State Department of the United States uutil it was produced in this case. Nor is it pretended that a copy of it was ever sent to Great Britain. The only document relied upon to show knowledge upon the part of Great Britain of the interpretation placed by the United States upon the treaty of 1824 is the letter of Mr. Addington, the British representative at Washin gton, written August 2,1824, to Mr. George Canning. Mr. Addington said: "A convention concluded between this Government and that of Russia for the settlement of the respective claims of the 97 two nations to the intercourse with the northwestern coast of America reached the Department of State a few days since. The main points determined by this instrument are, as far as I can collect from the American Secretary of State, (1) the enjoyment of a free and unrestricted intercourse by each nation with all the settlements of the other on the northwest coast of America, and (2) a stipulation that no new settlements shall be formed by Russia south, or by the United States north, of latitude 54° 40'. The question of the mare clausum, the sovereignty over which was asserted by the Emperor of Russia in his celebrated Ukase of 1821, but virtually, if not expressly, renounced by a subsequent declaration of that sovereign, has, Mr. Adams assures me, not been touched upon in the above-mentioned treaty. Mr. Adams seemed to consider any formal stipulation recording that renunciation as unnecessary and supererogatory." British Case, App. Vol. 2, p. 66. • It is to be observed, in reference to this letter, that it was written many months prior to the interview with Baron Tuyll, and only a few days after the treaty of 1824 had reached the United States Department of State. Besides, if the writer of that letter understood Mr. Adams to say that the question of free navigation and fishing by the citizens and subjects of Russia and the United. States in the Pacific Ocean had "not been touched upon in the treaty" of 1824, it is clear that he must have wholly misapprehended the observations of the ' American Secretary of State. The treaty, upon its face, shows just the contrary. M. de Poletica, it will be remembered, at the very outset of the negotiations between Russia and the United States, expressly waived the question of the right of Russia to regard the whole sea between the North American and Asiatic continents north of 51° north latitude on one side and 45° north latitude on the other side, as a " shut sea," and only insisted upon Russia's right, as a means of protecting its colonial industries and trade, to prevent foreign vessels from coming nearer to her coasts that 100 Italian miles. If Mr. Adams said to Mr. Addington that the question of mare clausum had not been touched upon in the treaty of 1824 he meant only that the question of mare clausum, or " shut sea," as stated in its broadest aspect, but expressly waived, byM. Poletica, had not been specifically disposed of by that treaty. He could not have said that the right of the subjects and citizens of the two countries to freely navigate and fish in the open waters of the sea was left untouched by the treaty of 1824. 11492 7 98 That Great Britain signed the treaty of 1S25 without any knowledge that the treaty of 1824 would be interpreted otherwise than by its words, according to their natural signification, is shown by the letter of Mr. Stratford Canning (who negotiated the treaty of 1825) to Mr. George Canning, under date of April 3-15, 1825, in which he said: "Referring to the American treaty, I am assured as well by Count Nesselrode as by Mr. Middleton [the American minister at St. Petersburg] that the ratification of that instrument was not accompanied by any explanations calculated to modify or affect in any way the force and meaning of its articles. But I understand that at the close of the negotiation of that treaty a protocol, intended by the Russians to fix more specifically the limitations of the right of trading with their possessions, and understood by the American envoy as having no such effect, was.drawn up and signed by both parties. No reference whatever was made to this paper by the Russian plenipotentiaries in the course of my negotiations with them; and you are aware, sir. that the articles of the convention which I concluded depend for their force entirely on the general acceptation of the terms in which they are expressed." It does not appear that any such protocol was ever, in fact, executed; at any rate, we have no. evidence that it was executed. If this were a case between the United States and Russia, involving the question as to whether the treaty of 1824, in using the words "Pacific Ocean," covered the waters of Bering Sea, other considerations might possibly arise than those which must determine that question under the treaty of 1825 with Great Britain. Here the inquiry is whether Great Britain and Russia in that treaty referred to " Pacific Ocean" as including Bering Sea. And that inquiry can only be determined, apart from the words of the treaty itself, by what passed between the representatives of those two countries during the negotiations resulting in the treaty between^ them, of which the only evidence is found in the letters and official documents having reference to those' negotiations. Did Russia and Great Britain intend that Article I of the treaty of- 1825, by which those powers agreed that their respective subjects " shall not be troubled or molested in any part of the Great Ocean commonly called the Pacific Ocean, either iu navigatiug the same or in fishing therein," should be applicable to Bering Sea? Did either Government at the time the negotiations were opened, or when the treaty was concluded, regard Beriug Sea as outside of the ocean " commonly 99 called the Pacific Ocean"? In view of the grounds upon which Great. Britain, during negotiations extending over three years, steadily rested its objections to the Ukase of 1821, can it be presumed or supposed that she intended to leave that Ukase in force as to the waters of Bering Sea and thereby recognize the right of Russia to prohibit British vessels from approaching any of the coasts of that sea nearer than 100 Italian miles? It seems to me that these questions must all be answered in the negative. What waters, according to the understanding of Russia, at the date of the treaty, were in fact embraced in the Pacific Ocean? Upon this point there is scarcely room for doubt. In the letter of Baron Nicolay, dated November 12,1821, in which he gave notice to the British Government of the Ukase of 1821, he states that the possessions of Russia " extend on the northwest coast of America from the Bering Strait to the fifty-first degree of north latitude, as well as on the coast of Asia opposite and on the adjacent islands, from the same strait to forty-five degrees," and that if " the Imperial Government had strictly the right to close to foreigners^ that portion of the Pacific Ocean which is bounded by our possessions in America and Asia, a fortiori, the right in virtue of which it has just adopted a much less restrictive measure should not be called in question." In the letter, already referred to, of February 28,1822, in which M. Poletica stated fully the grounds upon which Russia based the Ukase of 1821, he stated that the first discoveries of Russia on the northwest coast of America went back to the time of Peter I, and belonged to the attempt made towards the end of his reign " to find a passage from the Icy Sea into the Pacific Ocean"; implying that the Icy Sea, which is now known as the Arctic Ocean, was connected with the Pacific Ocean. In the same letter, in which he describes the limits assigned to Russian possessions by the Ukase of 1821, M. Poletica states that "the Russian possessions iu the Pacific Ocean extend on the northwest coast of America from Bering Strait to the fifty-first degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the forty-fifth degree." It thus appears that Russia, by its representatives, in language too clear to admit of doubt as to its meaning, regarded all of its possessions on the northwest coast .of America, extending from Bering Strait to the fifty-first degree of north latitude, as being on the Pacific Ocean. It is equally clear that Great Britain so understood the matter. In 100 no dispatch emanating from the British Foreign Office is there anything indicating that, in its judgment, Bering Sea was not a part of the Great Ocean commonly called the Pacific Ocean, or that its Government was concerned simply about navigation and fishing in the waters south of the Alaskan Peninsula, which washed the shores of the particular territory^ limited in extent, and then in dispute between that country and Russia. On the contrary, in the projet of a convention which Mr. George Canning, on the 12th of July, 1824, prepared for the consideration of Russia, it distinctly appears that Great Britain contemplated a treaty covering all the coasts and waters on the North American coast from Bering Strait southward. Article I in that draft provided: "It is agreed between the high contracting parties that their respective subjects shall enjoy the right of free navigation along the whole extent of the Pacific Ocean, comprehending the sea within Bering Straits, and shall be neither troubled nor molested in carrying on their trade and fisheries, in all parts of the said ocean, either to the northward or southward thereof; it being well understood that the said right of fishery shall not be exercised by the subjects of either of the two powers nearer than two marine leagues from the respective possessions of the other." In his letter inclosing this projet to Sir Charles Bagot, the British minister at St. Petersburg, Mr. Canning said: "Tour Excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first is the assumption of the base of the mountains, instead of the summit, as the line of boundary; the second, the extension of the right of the navigation of the Pacific to the sea beyond Bering Straits. As to the second point, it is, perhaps, as Count Lieven remarks, new; But it is to be remarked, in return, that the circumstances under which this additional security is required will be new also. By the territorial demarcation agreed to in this 'projet', Russia will become possessed, in acknowledged sovereignty, of both sides of Bering's Straits. The power which could think of making the Pacific a mare clausum may not unnaturally be supposed capable of a disposition to apply the same character to a strait comprehended between two shores of which it becomes the undisputed owner; but the shutting up of Bering- Straits, or the power to shut them up hereafter, would be a thing not to be tolerated by England. Nor could we submit to be excluded, either positively or constructively* from a sea in which the skill and sci- 101 ence of our seamen has been and is still employed in enterprises interesting not to this country alone, but to the whole civilized world. The protection given by the convention to the American coasts of each power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other, if not in the form now prescribed, the free navigation of Bering's Straits and of the seas beyond them must be secured to us." British Case, tYcL 2, App. 65. Of course Mr. Canning, when he framed the above draft of a convention regarded the waters immediately south of "the sea within Bering Strait" as part of the Pacific Ocean. The same draft shows that he contemplated the settlement of the rights of the two nations on the entire coasts and in all the waters south of Bering Strait. And such evidently was the purpose of Russia, which offered a conn ter-projet of a convention, to settle, " according to the principle of mntual accommodation, the boundary between their possessions and settlements on the northwest coast of America, as well as divers questions relating to commerce, navigation, and fishing by their respective subjects in the Pacific Ocean." After defining the line of demarcation between the possessions of the two high contracting parties on the northwest coast of America and the adjacent islands, and according to the vessels and the subjects of the two powers the right in the possessions of the two powers, as defined, for ten years " to freely frequent the gulfs, harbors, and creeks iu those parts of the islands and of the coast which are not occupied by either Russian or English settlements, and there to engage in fishing and commerce with the natives of the country," the Russian counter-projet proceeds: "Art. IV. In future no settlement shall be formed by His Britannic Majesty's subjects within the limits of Russian possessions set out in Articles I and II, and, in like mauner, none shall be formed by the subjects of His Majesty tho Emperor of all theRussias outside of the said limits. Art. V. The High Contracting Parties stipulate moreover, that their respective subjects will have the right to freely navigate the whole extent of the Pacifio Ocean, both, towards the north and south, without aDy hindrance whatever, and that they will enjoy the right of fishery iu the high seas, but that this latter right shall never be exercised within a distance of two marine leagues from the coast or possessions—whether Russian or British. Art. VI. His Majesty the Emperor of all the Russias, being anxious to give a special proof of hisregard for the iuterests of His Britannic Majesty's subjects, and to- 102 render more useful the success of the enterprises which will eventually result in the discovery of a passage on the north of the American continent, consents that the freedom of navigation mentioned in the preceding article shall apply, under the same conditions, to Beriug Strait, and to the sea situated to the northward of said strait. Art. VII. Any Russian or British ships navigating the Pacific Ocean and the sea above mentioned that may be obliged, by storms or by damages, to take refuge in the respective ports of the High Contracting Parties, shall be allowed to refit therein, and to take aboard everything necessary, and to sail away again freely, without paying any other charges than port and lighthouse dues, which shall be the same as those paid by national vessels." British Case, Vol. 2, App., 68, 69. Is it not apparent from this counter-^)rojet that Russia regarded the "sea situated to the northward" of Bering Strait, that is, the Arctic Sea, as being separated from the Pacific Ocean only by the waters of that Strait, and therefore that what is now called Bering Sea was regarded by the Government of that country as part of the Pacific . Ocean? If Russia did not then regard Bering Sea as a part of the Pacific Ocean, it would follow that the privilege given by Article VII of the counter-projet to "Russian or British ships navigating the Pacific Ocean and the sea above mentioned" (the sea north of Bering Strait) to take temporary refuge, in case of storms or damage, in the respective ports of the two countries, could not be exercised by a British vessel navigating Bering Sea. A purpose to make such a distinction ought not to be imputed to Russia. It ought not to be supposed that Russia intended to assent to the navigation by British vessels of Bering Strait and the sea to the northward of it, and yet restrict the right of navigation in the waters immediately south of Bering Strait. This supposition is entirely inconsistent with the declaration in the counter-^rq/et that the treaty which the two governments were seeking to negotiate had in view the settlement of questions relating to commerce, navigation, and fishing by their respective subjects "in the Pacific Ocean." The documentary evidence to which we have referred all tends to show that Great Britain was chiefly concerned about the assumption by Russia, in the Ukase of 1821, of exclusive dominion over the Pacific Ocean, and that it regarded the question of territorial limits on the continent of America as' subordinate and relatively unimportant. It earnestly sought the repeal of an edict that asserted "exclusive jurisdiction over 103 an ocean of unmeasured extent." It withdrew its offer to establish "an exclusive fishery of two leagues from the coasts" of the respective countries, and suggested that one league to each power on its own coasts, as recognized by the law of nations, would suffice and was all that she would admit. Not long after this letter of December 8, 1824, the treaty between Russia and Great Britain, in the form above given, was signed. Mr. Stratford Canning, in the letter informing Mr. George Canning of that fact, said, among other things: "With respect to Bering Straits I am happy to have it in my power to assure you, on the joint authority of the Russian plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas north of them." Is it to be supposed, that the British plenipotentiary understood Russia as asserting or reserving exclusive rights in the sea south of those straits? In view of this array of documentary evidence the Tribunal is asked to find that the treaty of 1825. used the words "Pacific Ocean" as embracing only the waters of Bering Sea. If we so deelare, then our finding will, in effect, be a declaration that although Great Britian, during negotiations covering several years, persistently demanded the abrogation of an edict asserting for Russia the right to establish a line 100 Italian miles from its shores, washed by seas too vast in extent and too immediately connected with the great oceans of the world to come under the exclusive jurisdiction of any nation, she finally agreed to withdraw her opposition to that assumption of jurisdiction so far as it related to Bering Sea, more than 1,000 miles in length and more than 1,200 miles in width; and this notwithstanding in no part of the voluminous correspondence preceding the treaty of 1825 is there one word that expressly, or by necessary implication, indicates any purpose on the part of Russia to demand, or upon the part of Great Britian to concede, that the Ukase of 1821 should remain in force as to Bering Sea, as distinguished from the North Pacific Ocean. I have been unable to reach that conclusion. Nor can that position be sustained consistently with the position, taken by Russia itself after 1825 as to the scope and effect of the treaties of 1824 and 1825. The evidence is conclusive that Russia—whatever may have been embodied in the proceedings of the Nessdrode conference after the treaty of 1824 was signed—understood both treaties to have annulled the Ukase of 1821 in its application to foreign vessels, so far as to secure 104 to the citizens of Great Britain and America entire freedom of navigation and rights of fishing throughout the whole of Bering Sea, outside of territorial waters. InTickmenief's "Historical Review of the formation of the Russian American Company and their proceedings to the presenttime", published at St. Petersburg in 1863 {Part I,pp. 130-139), it is said: "In 1842 Etolin, governor of the colony, informed the company that in the course of his tour of inspection he had come across several American ships. Although circumstances had prevented his communicating with them at the time, he had reason to believe that they were whalers. In corroboration of this he stated that for some time he had been receiving reports from various parts of the colony of the appearance of American whalers in the neighborhood of the harbors and shores of the colony. Amongst these reports the most noteworthy was that of Captain Kad- nikoff, the commander of the company's ship Nasliednik Alexander, who stated that, on a voyage from Sitka to Okhotsk, he had hailed a whaler flying the American flag. The master informed him that he had come from the Saudwich Islands in company with thirty other ships to whale on both sides of the western extremity of the peninsula of Alaska and the eastern islands of the Aleutian group belonging to that peninsula, and that as many as 200 whalers were coming from the United States the same year. Captain Kadnikoff also ascertained from the master that in 1841 he had whaled in the same waters in company with fifty other ships, and that his ship secured thirteen whales, from which 1,600 barrels of oil were obtained." British Case, Vol. 1, App. 40. In reply to an application by the Russian American Company to prevent the Americans from fishing in the waters of the colony, the Rus- . sian foreign office, in 1842, said: "The claim to a mare clausum, if we wished to advance such a claim in respect to the northern part of the Pacific Ocean, could not be theoretically justified. Under Article I of the convention of 1824 between Russia and the United States, which is still in force, American citizens have a right to fish in all parts of the Pacific Ocean. But under Article IV of the same convention, the ten years' period mentioned in that article having expired, we have power to forbid American vessels to visit inland seas, gulfs, harbors, and bays, for the purposes of fishing and trading with the natives. That is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea." Letter from the Department of Manufactures and Internal Trade, December 14,1842, No. 5191, Dielo. Arkh. Kom., 1842, goda, No. 14, str. 7. British Case, Vol. 1, App. 40. 105 Again, in 1843, the question was presented to the Russian Foreign Office whether the claim of foreigners to take whales in Russian waters ought not to be limited by a line drawn at a distance of at least three leagues, or nine Italian miles, from the shores of the colony. The Russian Foreign Office, iu 1843, said: "The fixing of a line at sea within which foreign vessels should be prohibited from whaling off our shores would not be in accordance with the spirit of the convention of 1824, and would be contrary to the provisions of our convention of 1825 with Great Britain. Moreover, the adoption of such a measure, without preMminary negotiation and arrangement with the other powers, might lead to protests, since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea." British Case, Vol. 1, App. 41. Subsequently, in 1846, the governor-general of Siberia, in consequence of what were regarded as new aggressions on the part of whalers, expressed the opinion that, in order to limit the whaling operations of foreigners, it would be fair to forbid them to come within 40 Italian miles of the Russian shores, the ports of Petropavlosk and Okhotsh to be excluded, and a payment of 100 silver roubles to be demanded at those ports from any vessel for the right of whaling. He recommended the employment of a cruiser to watch foreign vessels. But the Russian Foreign Office, in 1847, said: " We have no right to exclude foreign ships from that part of the Great Ocean which separates the eastern shore of Siberia from the northwestern shore of America, or to make the payment of a sum of money a condition to allowing them to take whales." British Case, Vol. 1, App. 41. Of course, the waters here referred to included the whole of Bering Sea, and the language used by the Russian Foreign Office leaves no room to doubt that Russia regarded Bering Sea as part of the "Great Ocean." Nor can we suppose that Russia, after the treaty of 1825, regarded the prohibition in the Ukase of 1821 against foreign vessels approaching its shores nearer than 100 Italian miles as in force against the subjects of Great Britain, or against the people of any nation at the time of the cession of 1867 to America. It may be said that the official declarations of the Russian Foreign Office as to the spirit and meaning of the treaties of 1824 and 1825 had reference to the hunting of whales and not to the hunting of fur seals. But there is no ground to suppose that foreign vessels employed in hunting whales in Bering Sea had, in the judgment of the high 106 contracting parties, any less rights than those employed in the hunting of fur seals in the same waters. There is no trace in the record of any purpose upon the part of Russia to claim larger rights in the open waters of Bering Sea in respect to the hunting of fur seals than in respect to the hunting of whales. In fact, prior to 1867, there was no such thing known as the hunting of these fur seals in the high seas, except, perhaps, a few were taken by the natives along the coasts with spears and harpoons. .Thereis one argument, in sup'port of the contention that "Pacific Ocean" in the treaties of 1824 and 1825 do not include Bering Sea, which, deserves examination. It is, that upon a vast number of maps published prior to 1825 the waters north of the Aleutian Islands and between Alaska and Siberia were designated separately from the waters south of those islands, and that if Russia and Great Britain intended that the treaty of 1825 should embrace the waters of-Bering Sea some reference would have been made to that sea in the form of words used on maps designating it as a separate body of water. To Mr. Blaine's letter of December 17,1890, is attached a list of 105 maps, covering the period from 1743 to 1829, showing that on those maps the waters south of Beriug Sea are variously designated as the Pacific Ocean, Ocean Pacifique, Stilles Meer, the Great Ocean, Grand Mer, Grosser Ocean, the Great South Sea, Grosser Sud-Sea,- North Pacific, Mer du Sud, etc. On those maps the waters north of the Aleutian Islands are as a general rule designated siiecially, sometimes by the words "Sea of Kamschatka," and at other times by the name of "Bering- Sea." But, upon examining those and other maps, it appears that, in m'ost instances, the words "Sea of Kamschatka" and "Bering Sea" are often in letters so small as compared with the words " Pacific Ocean," " Great Ocean," " Great South Sea," etc., lower down on the map, as to justify the conclusion that the former body of water was regarded as a part of the latter. This view is supported by the fact that on many charts, and in many geographies, encyclopedias, and other publications prior to and since 1825 (references to some of which are given in the margin*) Bering "Morse's American Geography, London,, 1794, p. 650: " Russian Empire. This immense empire stretches from the Baltic Sea aud Sweden on the west to Kamschatka and the Pacific Ocean on the east, and from the Frozen Ocean on the north to about the forty-fourth degree of latitude on tho south." Malham's Naval Gazeteer, London, 1795, Vol. 2, p. 4: "Kamschatka Sea is a1 large branch of the Oriental or North Pacific Ocean." .107 Sea was often referred to as constituting a part of the Pacific Ocean or South Sea, or the North Pacific Ocean. These facts explain how it was that the treaty of 1824 described the Great Ocean, on which there should be freedom of navigation and fishing, as the body of waters commonly called the Pacific Ocean or South Sea. This description was first suggested in the projet presented to the Russian Government by Mr. Middleton, the American minister at St. Petersburg, the words of which were, "in any part of the Great Ocean, vulgarly called the Pacific or South Sea." American State Papers, Vol. 5, p. 464. Ibid, Vol. l,p. 42: "Bering's Straits, which is the passage from the North Pacific Ocean to the Arctic Sea." Brooke's General Gazeteer, 1802: "Bering's Island—An island in the Pacific Ocean." Montefiore's Commercial Dictionary, 1803: " Kamschatka—Bounded on the east and south by the North Pacific Ocean." Crutttwell'e New Universal Gazeteer, 1808: ''Kamschatka—Peninsula, bounded on the east and south by the North Pacific Ocean. Bees'$ Gyolopcedia, Vol. 26, London, 1819.—"Pacific Ocean, or South Sea, in geography, that vast ocean which separates Asia from Amorica. It is called Pacific from the moderate weather which the first mariners who sailed in it met with between the tropics; and it was called the South Sea because the Spainards crossed the isthmus of Darien from north to south. It is properly tho western ocean with regard to America. Geographers call the South Sea Mare Pacificum, the Pacific Ocean as being less infested with storms than the Atlantic. * * * This ocean is divided into two great parts. That lying east from Kamschatka, between Siberia and America, is eminently styled the Eastern or the Pacific Ocean; • that on the west side from Kamschatka, botwoeu Siberia, the Chinese Mougoley, and the Kwielly Islands is called the Sea of Okhotsk. From the different places it touches it assumes different names, e. g., from the place where tho river Anadyr falls into it, it is called the Sea of Anadyr, about Kamschatka, the Sea of Kamschatka; and the bay between the districts of Okhotsk and Kamschatka is called the Sea of Okhotsk." jGnoycloped'ie Melhodiqrie Geographic, Paris, Vol. 2, p. 501: "2d. L'Oce*an pacifi- que, la mer du sud, ou la grand mer, qui est situee entre les o6tes orientales d'Asie, et occidentales d'Amerique." (The Pacific Ocean, the South Sea, or the Great Sea, which is situated between the coasts of Asia and the western coasts of America.) Encyclopedic du Dix-Neuvieme Siecle (Encyclopaedia of the 19th Century), Paris, Vol. 17, p. 429; Ocean Pacifique ou mer du sud, appelee aussi grande Mer entre l'Ainerique et 1'Asie, eutre le cerole polaire du nord et celul du sud. (The Pacific Ocean, or the South Sea, called also the Great Sea, between America and Asia, and between the northern polar circle and the southern.) Edinburgh Gazeteer, 1822. Vol. l,p. 432: "Behring's Island—an island in the North Pacific Ocean." 108 lam of opinion in view of all the evidence—which includes many documents that do not appear to have been brought to the attention of Mr. Blaine during his correspondence with Lord Salisbury—that the words Pacific Ocean in the treaty of 1825 included, and wore intended by Russia and Great Britain to include, the waters of Bering Sea as part of "the Great Ocean commonly called the Pacific Ocean." Respecting the seal fisheries in Bering Sea, named in the first and second points of Article VI of the treaty—if the reference be to the fur-seal industries conducted under the license or authority of Russia on the islands situated in that sea—it is clear, from the records in our hands, that Russia, from a date prior to the beginning of the present century ■ down to the cession in 1867 of Alaska to the United States, had the exclusive right to such fisheries, and that her rights, in that regard, were General Gazeteer, London, 1823: "Beering's Island—in the North PacificOcean." New London Gazeteer, 1826: "Beering's Island—in the Pacific" Edinburgh Gazeteer, London, 1827, Vol. 1,p.432: "Kamschatka (Peninsula). On the east it has the North Pacific Ocean, and on the west that large gulf of it called the Sea of Okhotsk." Arrowsmith'8 Grammar of Modern Geography, 1832: "Bhoring's Strait connects the Frozen Ocean with tho Pacific The Anadir flows into the Pacific Oceain." Penny Encyclopedia, London, 1840, p. 116: "Pacific Ocean extends between America on the east and Asia and Australia on the west. * * * It is called the South Sea, because vessels sailing from Europe can only enter it after a long southorly course. The name of South Sea has been limited in later times to the southern portion of the Pacific The Pacific is the greatest expanse of water on the globe, of which it oovers more than one-half of the surface. ** * * Behring's Strait, which may be considered as its most northern boundary, lies between East Cape in Asia and Cape Prince of Wales near 66° north latitude, and is less than 40 miles wide." London Encyclopedia, 1845, Vol. 16, p. 102: Following Malte Broun's Precis de la Geographie Universelle, this book describes the Eastern or Great Pacific Ocean as embraoing among other waters "the Northeastern Ocean between Asia and North America," the "seas of Japan, Kamschatka, and Beering's Strait," making "a part of it." Encyclopedia Americana, Philadelphia, 1845, Vol. 9, p. 476: "Paoifio Ocean; the great mass of waters extending from Beering's Straits to the Antarctic Circle, a distance of 3,200 leagues, and from Asia and New Holland to America. * » * It was at first called the South Sea by the European navigators, who entered it from the north. Magellan gave it the name of Pacific," etc New American Cyclopedia, by Ripley and Dana, 1851: "Pacific Ocean: Between longitude 70° west and 110° east; that is, for the epace of 180°, or over one entire half of the globe. It covers the greater part of the earth's surface from Behring's Straits to the Polar Circle, that separates it from the Antarctic Ocean." Harper's Statistical Gazeteer of the World, By Smith. New York: 1855. "Bus- 109 recognized and conceded by Great Britain, in the sense that that country never, in any form, disputed such right, although neither Great Britain' nor the United States ever recognized or conceded even the qualified jurisdiction asserted by Russia, in the Ukase of 1821, to forbid foreign vessels from approaching nearer than 100 Italian miles from her coasts or islands. In respect to seal fisheries, if any, conducted in the open waters of Bering Sea outside of territorial waters, Russia neither held nor exclusively exercised any right not possessed, in such open waters, by all other nations. Iu respect to the fourth point of Article VI, it was not disputed in argument (as of course it could not be) that whatever rights—that is, whatever legal rights—Russia had, as to jurisdiction and as to sian America comprises the whole of the continent of northwest America -west of longitude 144° west and a strip on the coast extending south to latitude 55° north, bounded on the east by British America, south and west by the Pacific Ocean, and north by the Arctic Ocean," etc. Cyclopedia of Geography, by Knight, 1856: "Behring's Strait, which connects the Pacific with the Arctic Ocean, is formed by the approach of the continents of America and Asia." MaCulloah's Geographical Dictionary, by Martin, 1866: "Pacific Ocean: Its extreme southern limit is the Antarctic Circle, from which it stretches northward through 132° of latitude to Behring Strait, which separates it from the Arctic Ocean." Blackie's Imperial Gazeteer, London, 1874, Vol. 2, p. 558: "In the north the Pacific gradually contracts in width; the continents of America aud Asia, stretching out and approximating, so as to leave the comparatively narrow channel of Behring's Strait as the only communication between the Pacific and the Arctic Oceans." American Cyclopedia, New York, 1875, Vol. 1, p. 480: "Behring Sea. That part of the Pacific Ocean which lies immediately south of Behring Strait." Encyclopedia Britannica, Edinburgh. Ninth Ed., 1875-1890, Vol. 18, p. 115: "The Pacific Ocean is bounded on the north by Behring's Strait and the coasts of Russia and Alaska. * * * It extends -through 132° of latitude; in other words, it measures 9,000 miles from north to south. From east to west its breadth varies from about 40 milos at Behring's Strait," etc. In the English edition it is stated in a footnote that the Pacific Ocean was formerly called the South Sea. Worcester's Dictionary of the English Language, Philadelphia, 1887: "Behring Sea: A part of the Pacific Ocean north of the Aleutian Islands." Chambers's Cyclopaedia, 1888: "Behring Strait connects the Pacific Ocean with the Arctic Ocoau. Behring Sea: A part of the Pacific Ocean commonly known as the Sea of Kamchatka," 110 seal fisheries in Bering Sea east of the water boundary defined in the treaty of March 30,1867, between Russia and the United States, passed unimpaired to the United States. She conveyed all her territory and dominion, and all the rights, franchises, and privileges which she possessed in such territory, and dominion, within the limits defined by that treaty, free and unincumbered by any reservations, privileges, grants, or possession, by any company or individuals. The deed of cession of 1867 necessarily embraced all of Russia's rights, whatever they were, in the fur seals frequenting the Pribilof Islands, and in the industries carried on there for more than three-quarters of a century jirior to 1867. If I am correct in the views above expressed, the answers to the first four points of Article VI should be, substantially, as follows: To the first.—Prior to and up to the time of the cession of Alaska to the United States, Russia did not assert nor exercise any exclusive jurisdiction in Bering Sea, or any exclusive rights in the fur seal fisheries in that sea, outside of ordinary territorial waters, except that in the Ukase of 1821 she did assert the right to prevent foreign vessels from approaching nearer than 100 Italian miles the coasts aud islands named in that Ukase. But, pending the negotiations to which that Ukase gave rise, Russia voluntarily suspended its execution, s> far as to direct its officers to restrict their surveillance of foreign vessels to the distance of cannon shot from the shores mentioned, and by the treaty of 1824 with the United States, as well as by that of 1825 with Great Britain, the above Ukase was withdrawn, and the claim of authority or the power to prohibit foreign vessels from approaching the coasts nearer than 100 Italian miles was abandoned, by the agreement embodied in those treaties to the effect that the respective citizens and subjects of the high contracting parties should not be troubled or molested, in any part of the Great Ocean commonly called the Pacific Ocean, either in navigating the same or in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in other articles of those treaties. To the second.—Great Britain never recognized nor conceded any claim by Russia of exclusive jurisdiction iu Bering Sea, nor of exclusive rights as to the seal fisheries therein, outside of ordinary territorial waters; although she did recognize and concede Russia's Ill exclusive jurisdiction within her own territory and such jurisdiction inside of territorial waters as was consistent with the law of nations. To the third.—The body of .water now known as Bering Sea was included in the phrase "Pacific Ocean" as used in the treaty of 1825 between Great Britain and Russia, and, after that treaty, Russia neither held nor exercised any rights in the waters of Bering Sea, outside of ordinary territorial waters, that did not belong in the same waters to other countries. To the faurth.— All the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering Sea, east of the water boundary in the treaty between the United States and Russia of March 30,1867, passed, under that treaty, unimpaired to the United States. THE RIGHT OF PROPERTY ASSERTED BY THE UNITED STATES IN THE PBIBILOJP HERD OP SEALS, AND ITS RIGHT, WHETHER AS OWNER OP THE HERD, OR SIMPLY AS OWNER OF THE FUR SEAL INDUSTRY ON THE PRIKILOP ISLANDS, TO PROTECT THE SEALS AGAINST PELAGIC SEALING. I come now to the most important and interesting question presented for determination, namely, that involved in the fifth point of Article VI of the Treaty: "Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?" It is necessary to a proper understanding of this question, in its bearing upon the general subject of the preservation of this race of animals, that we recall the facts (never before so fully, developed as in the evidence now adduced) touching their history, nature, and habits as well as the results that necessarily follow from hunting and killing them in the high seas. These facts should be clearly apprehended before we enter upon the consideration of the principles of law and justice applicable to the case. They should be brought together here, even at the risk of some repetition. These facts—stating only such as are admitted or are established by overwhelming evidence—are as follows: 1. The animals in question belong to the species commonly designated by naturalists as the Northern Fur Seal, and are valuable for purposes 112 of raimentandfood. The race has only four breedingplaces: Commander Islands, in the western part of Bering Sea, near the coast of Asia; Robben Reef, in the Sea of Okhotsk; the Kurile Islands, on the west side of the Pacific Ocean, near the coasts of Japan and Asia; and the islands of St. Paul and St. George, part of the Pribilof group in Bering Sea. The Pribilof seals so far differ from others of the Northern Pur Seal species that their pelage can readily be distinguished by experts from that of the seals of other herds. 2. The taking or killing of fur seals, for commercial purposes, at the islands of St. Paul aud St. George, during the eighty years of Russia's ownership of the Pribilof Islands, was conducted under the license or authority of that nation. And the exclusive right of Russia, during that period, to control that business, so conducted, for its exclusive benefit or for the advantage of its subjects, was not disputed by any other country.- 3. By a joint resolution of the Congress of the United States, approved March 3,1869, providing for the more effective protection of the fur seal in Alaska, the islands of St. Paul and St. George—which, with other islands in Bering Sea, became the property of the United States by virtue of the cessiou from Russia of March 30, 1867—were declared to be "a special Reservation for Government purposes;" and it was made unlawful for any person to land or remain on either of the two islands named, except by the authority of the Secretary of the Treasury; any person found on either island without such authority being liable to be summarily removed. Subsequently, by an act of Congress, entitled "An act to prevent the extermination of the fur-bearing animals in Alaska," approved July 1,1870, it was made unlawful to kill any fur seal upon the islands of St. Paul and St. George, or in the waters adjacent thereto (except during certain named months), or to kill such seals at any time with firearms, or to use any means that tended to drive the seals from the islands; the natives on the islands being, however, allowed the privilege (subject to regulations prescribed by the Secretary of the Treasury) of killing, during other months, such young or old seals as were necessary for food and clothing. By the same statute it was made unlawful to kill any female seal, or any seal less than one year old, at any season of the year (except as provided in the case of natives), or to kill any seal in the waters adjacent to the islands, or on the beaches, cliffs, or rocks where they hauled up from the sea to remain; any person violating the above provisions or either of them being made liable 113 to a fine of not less than $200 nor more than $1,000, or to imprisonment not exceeding six months, or both to such fine and imprisonment at the discretion of the court having cognizance of the offense; all vessels, their tackle, apparel, and furniture, whose crew were found engaged in violating the provisions of tho act, to be forfeited to the United States. The same act provided that, for the period of twenty years, the number of seals killed for their skins should be limited to 75,000 per annum upon the island of St. Paul, and 25,000 upon the island of St. George; subject, however, to the power of the Secretary of the Treasury to limit the right of killing, if that should become necessary for the preservation of the seals, with such proportionate reduction of the rents reserved to the Government, as was right aud proper. The Secretary was required to lease for the term of twenty years, to proper and responsible parties, for the best advantage of the Government, the native inhabitants, their comfort, maintenance, and education, as well as to the interest of the parties previously engaged in the trade, and the protection of the fur seals, the right to engage in the business ot taking fur seals ou the islands of St. Paul and St. George, and to send a vessel or vessels to those islands for the skins of the seals; taking from the lessee or lessees bond with sufficient sureties in the sum of not less than $500,000, conditioned for the faithful observance of all the laws of Congress and of the regulations of the Secretary of the Treasury, touching the subject matter of taking fur seals, and disposing of the same, and for the payment of all taxes and dues. It was further provided, that at the end of the lease, other like leases could be made; but no persons other than American citizens were permitted to occupy the islands or either of them, for the purpose of taking the skins of fur seals, nor any vessel allowed to engage in taking such skins; any lease made by the• Secretary of the Treasury being subject to forfeiture if it was held or operated, directly or indirectly, for the use, benefit, or advantage of any person other than American citizens. These and other provisions havingfor their object the utilization of these animals for purposes of revenue and .commerce, and their protection against indiscriminate slaughter ou the islands, or in the adjacent waters, were preserved in the Revised Statutes of the United States of 1S73, §§. 1951 to 1976, inclusive. 11192 8 114 By another act of Congress, approved March 2,1889, it was provided that section 1956 of the Revised Statutes, prohibiting the killing of any otter, mink, marten, sable or seal, or other fur-bearing animal, within the limits of Alaska Territory or in the waters thereof was declared to include and apply to all the dominion of the United States in the waters ot Bering Sea; and it was made tho duty of the President, at a timely season in each year, to issue his proclamation and cause the same to be published at each United States port of entry on the Pacific coast, warning all persons against entering those waters for the purpose of violating the provisions of that section. 4. The Pribilof herd is found, en masse, every year on the islands of St.. Paul and St. George. They remain there about four or flue months. Much longer time intervenes between the first arrival of some, and the departure from the islands of those who last leave them for the season. The period during which the herd abides ou those islands, is called the breeding season. They return there regularly for the purpose of breeding and rearing their young, and of shedding and renewing their coats of fur. 5. The breeding males, called bulls, arrive in the early part of May or by the middle of that month. Each bull, immediately after coming from the sea, establishes himself upon the rocky beach, appropriating as much space as will be needed for his female companions' after they arrive. Tho non-breeding males, or bachelors, arrive during the same month, and take position, substantially in a body, and, as a general rule, in the rear of the spaces occupied by the bulls. Sometimes the bachelors occupy spaces near the water, but separate from those occupied by the bulls and their female companions. Early in June the female seals, called cows, begin to emerge in bodies or droves from the sea, and to enter the spaces provided for them by the bulls. By the 10th of July substantially the entire herd is established ou the islands. Each bull appropriates for the season at least fifteen or twenty female seals. Within a few hours, it may be, always within a few days, after reaching the islands, the mother seal, impregnated during the breeding season of the previous year, gives birth to a single r/up, the iieriod of gestation being eleven or twelve months, the pups born being about equally-divided between the sexes. The pups are conceived on the islands during the breeding season. Cohabitation, for any effective purpose, in the water, is impossible. The females appear to have an 115 unerring instinct as to the time when the period of gestation will end. The cows, after being delivered of their pups, remain for a few weeks with the bulls by whom they have been appropriated. They go from the islands into the sea as often as nature suggests to be necessary for the purpose of obtaining fish for food by which they are nourished while suckling their young. A cow, while nursing its pup, often goes long distances from the islands in search of fish. Capt. Shepard, of the United States Marine service, who examined the skins taken from sealing vessels seized in 1887 and 1889, over 12,000 in number, two thirds or three- fourths being the skins of females, says: " Of the females taken in the Pacific Ocean, and early in the season in Bering Sea, nearly all are heavy with young, and the death of the female necessarily causes the death of the unborn pup seal; in fact, I have seen on nearly every vessel seized the pelts of uuborn pups which had been taken from their mothers. Of the females taken in Bering Sea nearly all are in milk, and I have seen the mUk come from the carcases of dead females lying on the decks of sealing vessels which were more than 100 miles from the Pribilof . Islands. From this fact, and from the further fact that I have seen seals in the water over 150 miles from the islands during the summer, I am convinced that the female, after giving birth to her young ou the rookeries, goes at least 150 miles, in many cases, from the islands in search of food." Robert H. McManus, a journalist of Victoria, who had devoted some attention to the sealing industry, referring to a catch of seals in Bering Sea when he was present, says that over three-fourths of that catch were cows in milk. This, he says, at a distance of 200 miles from the rookeries, shows that the nursing cows-ramble all over the Bering Sea in search of their chief food, the codfish, though these are chiefly found on the banks along the coast of the Aleutian Islands. In the Canadian Fisheries Report of 1886, it is stated that of the seals taken that year, " the greatest number were killed in Bering Sea, and were nearly all cows or female seals;" and in the report of 1888, that " over 60 per cent of the entire catch of Bering Sea is made up of female seals." The record is full of similar evidence. 6. Upon returning from her search for food the mother seal hunts up her pup, and will refuse her milk to the.pnp of any other cow. An intelligent witness thus describes the general habits of the mother seal and its pup: "The cows appear to go to and come from the water quite frequently, aud usually return to the spot or its neighborhood, where they leave their pups crying out for them and recognizing their individual 116 cries, though ten thousand around all together should bleat at once. They quickly single out their own and attend them. It would be a very unfortunate matter if the mothers could not identify their young by sound, since their pups get; together like a great swarm of bees, spread out upon the ground in 'pods' or groups, while they are young and not very large, but by the middle and end of September until they leave in November they cluster together, sleeping and frolicking by tens of thousands. A mother comes up from the water where she has been to wash, and perhaps to feed for the last day or two, about where she thinks her pup should be, but misses it, and finds instead a swarm of pups in which it has been incorporated, owing to its great fondness for society. The mother, without at first entering into the crowd of thousands, calls out just as a sheep does for her lambs, listens, and out of all the din she—if not at first, at the end of a few trials—recognizes the voice of her offspring and then advances, striking out right and left, and over the crowd toward the position from which it replies; but if the pup at this time happens to be asleep she hears nothing from it, even though it were close by, and in this case the cow, after calling for a time without being answered, curls herself up and takes a nap, or lazily basks, and is most likely more successful when she calls again." Another witness of large experience says: "As already stated, the females now mostly spend their time in the water, returning on shore only to suckle their young as they require food. On landing the mother calls out to her young with a plaintive bleat like that of a sheep calling to her lamb. As she approaches the mass several of the young ones answer and start to meet her, responding to her call as a young lamb answers its parent. As she meets them she looks at them, touches them with her nose as if smelling them, and passes hurriedly on until she meets her own, which she at once recognizes. After caressing him she lies down and allows him to suck and often falls into a sound sleep very quickly after." If the mother seal is killed while out at sea in search of fish for food, her pup, left behind on the islands, and requiring the milk of its mother for eight weeks or more after its birth, will die from starvation. This fact is placed beyond dispute by the evidence, and is not, I think, seriously questioned. The pups do not take to swimming naturally. They are enticed or forced by then? mother, from time to time, into the water and taught to swim. If a pup, by accident, is born in the sea, it will immediately 117 sink and be drowned. As already stated, the race is both conceived aud comes into existence on land, and from the necessities of its physical nature must abide upon land during several months of the year. 7. In the latter part of September or early in October, the breeding season having closed, the pups having learned to swim, and the ice around the islands increasing the difficulty of going into the sea for fish food, the herd begins to leave the islands, in squads or bands of different sizes, proceeding in a southerly and southeasterly direction through the middle passes of the Aleutian Islands into the North Pacific Ocean south of those islands, where they get into the warmer water of the Japanese current. During the winter months many of the seals are seen off the coasts of California and Oregon. The bulls do not go so far south, and do not accompany the herd in its general migrations, usually remaining in the Gulf of Alaska until they return to the breeding grounds. In the beginning of the year the seals turn their faces towards their land home, moving leisurely in small schools or bands, but substantially as a herd, northwardly and opposite to the coasts of Oregon, Washington, British Columbia, and Alaska, thence westwardly, through the eastern passes of the Aleutian Islands, back into Bering Sea, to their breeding grounds on the islands of St. Paul and. St. George. They occupy year after year substantially the same places on the islands. Their general migration route each year from the Pribilof Islands through the passes of the Aleutian Islands into the Pacific Ocean and back to their land home ou those islands, is well known to sealers and navigators. 8. While pn the islands they are subject to the control, for every practical or commercial purpose, of those who are there by the authority or license of the United States. Credible witnesses, familiar with the habits of these animals, state that the young seals, before being weaned, could be easily handled and branded with the mark of the United States. So complete is the subjection of these animals, old and young, to control, while on the islands during the breeding season, that such of them as it may be desirable to take for commercial purposes, can be readily separated from all the others. Indeed, if pelagic sealing continues to such an extent as to imperil the existence of the race, and if the United States should find it to be unprofitable to hold the islands of St. Paul and St. George as a Government Reservation, to be used exclusively by these animals as their breeding grounds, it could take substantially 118 the entire herd, in any one breeding season, and put the proceeds of the sale of their skins into its treasury. 9. Neither iu Bering Sea, nor in the North Pacific Ocean, does the Pribilof herd intermingle, to any appreciable extent, with the herds of northern fur seals frequenting the islands on the Asiatic coast. The migration routes of the latter are altogether in the waters on the western side of the Pacific Ocean, while the Pribilof herd never have gone west of the one hundred and eightieth degree of longitude from Greenwich, and very few have ever been seen so far west. This fact is conclusively established by the evidence, and is recognized in the separate reports made by the commissioners who were appointed by the two governments (two by each government) to investigate aud make report upon the facts having relation to seal life and the meas- .ures necessary for its proper protectioh and preservation. The American Commissioners, Profs. Merriam and Mendenhall, in their separate report made under the authority of the treaty between the two governments, say: " The fur seals of the Pribilof Islands do not mix with those of the Commander and Kurile Islands at any time of the year. In summer the two herds remain entirely distinct, separated by a water interval of several hundred miles; and in their winter migrations those from the Pribilof Islands follow the American coast in a southeasterly direction, while those from the Commander and Kurile Islands follow the Siberian and Japan coasts in a southwesterly direction, the two herds being separated in winter by a water interval of several thousand miles. This regularity in the movements of the different herds is in. obedience to the well-known law that migratory animals follow definite routes in migration and return year after year to the same place to breed. Were it not for this law there would be no such thing as stability of species, for interbreeding and existence under diverse physiographic conditions would destroy all specific characters." U. S. Case, 323. The British Commissioners, Prof. Dawson, and Sir George Baden- Powell, in their separate report, under the same authority, say: "Respecting the migration range of the fur seals which resort to Commander Islands, to Robben Island, .and in smaller numbers to several places in the Kurile Islands, as more fully noted in subsequent pages, comparatively little has been recorded; but the result of inquiries made jn various directions, when brought together, are sufficient to enable its general character and the area which it covers to 119 be outlined. The deficiency in information for the Asiatic coast depends upon the fact that pelagic sealing, as understood on the coast of America, is there practically unknown, while the people inhabiting the coast and its adjacent islands do not, like the Indians and Aleuts of the opposite side of the North Pacific, naturally venture far to sea for hunting purposes. The facts already cited in connection with the migration of the seals on the east side of the Pacific show that these animals enter and leave Bering Sea almost entirely by the eastern passes through the Aleutian chain, and that only under exceptional circumstances, and under stress of weather, are some young seals, while on their way south, driven as far to the west as Atka Island. No large bodies of migrating seals are known to pass near Attu Island, the westernmost of the Aleutians, and no young seals have ever within memory been seen there. These circumstances, with others which it is not necessary to detail here, are sufficient to demonstrate that the main migration routes of the seals frequenting the Commander Islands do not touch the Aleutian chain, and there is every reason to believe that although the seals become more or less commingled in Bering Sea, during the summer, the migration routes of the two sides of the North Pacific are essentially distinct. The inquiries and observations now made, however, enable it to be shown that the fur seals of the two sides of the North Pacific belong in the main to practically distinct migration tracts, both of which are elsewhere traced out and described, and it is believed that while to a certain extent transfers of individual seals or of small groups occur, probably ever year, between the Pribilof and Commander tribes, that this is exceptional rather than normal. It is not believed that any voluntary or systematic movement of fur seals takes place from one group of breeding islands to the other, but it is probable that a continual harassing of the seals upon one group might result, in a course of years, in a corresponding gradual accession to the other group. "There is no evidence whatever to show that any considerable branch of the seal tribe which has its winter home off the coast of British Columbia resorts in summer to the Commander Islands, whether voluntarily or led thither in pursuit of food fishes; and inquiries along the Aleutian chain show that no regular migration route follows its direction, whether to the north or south of the islands. It is certain that the young seals, in going southward from the, Pribilof Islands, only rarely get drifted westward a3 far as the one hundred and seventy- 120 second meridian of west longitude, while Attu Island, on the one hundred and seventy-third meridian east is never visited by young seals, and therefore lies between the regular autumn migration routes of the seals going from the Pribilof and Commander Islands respectively." Sees. 197,198, 453, 454. 10. The herd habitually resorting to the islands of St. Paul and St. George is the same that has resorted there in the spring, summer, and fall of every year for the past century and more without any change whatever in their habits or in their migration routes. Since the discovery of the islands, the Seals frequenting them have never resorted, for any purpose whatever, to other coasts or lands. This, no doubt, is due to the fact that they find on the Pribilof Islands, and nowhere else, the isolation required for the breeding season, as well as the climatic and physical conditions necessary to their life wants, among which conditions are an uniformly low temperature and an overcast sky and foggy atmosphere that serves to protect them against the sun's rays while they remain at the rookeries during the long summer season. Whatever may be the reason for their never having landed upon any other shores, it is indisputably shown that they have -regularly resorted to those islands as their breeding grounds for a period so long that the memory of man runneth not to the contrary. And the contrary is.not asserted. 11. Prior to 1883 or 1885 the taking of these fur seals at sea was exclusively by Indians or natives inside territorial waters, at any rate, quite near the coasts. They employed for that purpose only small canoes and harpoons or spears. Their catch, however, has never been large in any year, and has not materially affected the industry conducted at the islands of St. Paul and St. George, nor apparently diminished the number of the herd. But in 1883 a schooner manned by hunters skilled in taking seals entered Bering Sea aud returned with more thau 2,000 seals. This stimulated the business of taking these animals in the open waters beyond the territorial jurisdiction of the respective governments. In 1885 firearms were first used in hunting seals. Large schooners or vessels now go out into the ocean in the route traversed by the seals aud send out small boats manned by hunters with rifles or shotguns. Ordinarily, only the head of the seal can be seen as it moves through/or lies' asleep, in the water; those thus asleep being, as a general rule, mother seals heavy with young, who, being dis- 121 abled by their condition from making rapid movements, are easily approached and killed. It is indisputably sh own by the evidence tha at least 75 per cent of all seals shot by pelagic sealers and actually secured are female seals, the larger part of whom are far advanced in pregnancy when so taken. As soon as the mother seal is taken by pelagic sealers, her body is opened aud the unborn pup thrown into the sea. It is also shown that large numbers of seals, that are shot at and wounded or killed, sink and are entirely lost before the hunter can reach them with his small boat. Tlie number so lost varies according to the skill of the hunter in using fire arms and the implements carried for the purpose of securing the seal that has been wounded or killed, before it sinks. But, making a fair average of the per cent given by witnesses on both sides, it is certain that, in addition to the seals actually taken by hunters using fire arms, not less than 25 to 40 per cent of all seals wounded sink before they are reached by the hunter, and are entirely lost. In pelagic sealing there can be no selective killing so far as sex is concerned, for it is agreed hat a hunter can not tell whether the seal at which he shoots in the water is of the male or female sex. Such an attack upon the breeding females, if continued for a few years, will, of course, result in the extermination of this polygamous race. The slaughter of the female seal not only involves the loss of the mother and its unborn pup, but, as Mr. Blaine well said, "the future loss of the whole number which the bearing seal may produce in the successive years of life. The destruction which results from killing seals in the open sea proceeds, therefore, by a ratio which constantly and rapidly increases, and insures the total extermination of the species within a very brief period." Besides, in the long run, the killing of a female which has not yet borne young, or which is too young to have borne many pups, is more destructive than to kill one somewhat advanced in years. The largest number of vessels engaged in hunting these fur seals on the high seas outside of territorial waters in any year previous to 1886 was 16. The number increased in 1886 to 34, in 1887 to 47, in 1889 to 68, in 1890 to 91, in 1891 to 115, in 1892 to 122. The catch, in the open sea' by pelagic hunters of seals belonging to the Pribilof herd has steadily increased for ten years past, so that in the North Pacific Ocean, south of the Aleutian Islands, it amounted to 68,000 in 1891 and at least 70,000 in 1892, the modus 122 vivendi for those years excluding pelagic sealers only from Bering Sea. During the breeding season of 1868, before the United States had established regulations for the taking of fur seals at the Pribilof Islands, and before its authorities had acquired any knowledge as to the necessity of imposing restrictions upon the number to be killed for commercial purposes, seal hunters took on those islands alone about 268,000 of all ages aud sexes. The evil was, of course, remedied as soon as the act of 1868 was passed. From 1869 to 1871, inclusive, the average number killed annually on the islands for commercial purposes (taking for this estimate the report of the British commissioners) was 69,258,. and from 1872 to 1S89, inclusive, 98,211, exclusive, in each period, of the pups killed by natives for food and raiment. In 1890, when the disastrous effects of pelagic sealing began to be more distinctly felt, only 20,995 young males suitable for taking could be found on the islands, and in 1891 only 12,071, including the 7,500 allowed by the modus vivendi of thai year. By the modus vivendi of 1892 only 7,500 were allowed to be taken on the islands. In the present year, under the operation of the latter arrangement, only 7,500 can be taken by the United States or its licensees on the islands, while pelagic sealers are at liberty to take all they can in the North Pacific Ocean. It is not doubted that they will take at least 80,000 this season in those waters. 12. The Commissioners appoiuted by the United States and Great Britain agree that " since the Alaska purchase a marked diminution of the seals on, and habitually resorting to, the Pribilof Islands, has taken place; that it has been cumulative in effect, and that it is the result of excessive killing by man." They also agree that "for industrial as well as for other obvious reasons, it is incumbent upon all nations, and particularly those having direct commercial interests in fur seals, to provide for their proper protection and preservation." 13. But for the protection given to these seals while on the islands of St. Paul and St. George, first by Russia, and, subsequently, by the United States, the entire herd, frequenting the Islands of St. Paul and St. George since the discovery of those islands (how much longer can not be now known), would long ago have been destroyed by raiders and seal hunters. If the care, supervision, and self-denial practiced by the United States on the islands were withdrawn, the race would be swept out of existence within a very few years. It is common knowledge thai; at the close of the last century fur seals 123 of a somewhat different species from the Northern Fur Seals, but having most of the same characteristics, could be seen iu numbers almost incredible on numerous coasts and islands in the Southern Ocean, off the coasts of South America. According to the concurrent testimony of navigators and naturalists, all these herds in the southern seas have been annihilated, or so reduced in numbers that it is no longer worth while to visit them, "owing," to use the language of Sir William H. Flower, the distinguished head of the British Natural History Museum, "to the ruthless and indiscriminate slaughter carried ou by ignorant and lawless sealers, regardless of everything but immediate profit." We have the authority of the same eminent naturalist for saying: "The only spot in the world where the fur seals are now found in their original, or even increased, numbers, is the Pribilof group, a circumstance entirely owing to the rigid enforcement of the wise regulations of the Alaska Commercial Company. But for this the fur seal before now would have been added to the long list of animals exterminated from the earth by the hand of man." Eifty-second Congress United States, First session, Senate Ex. Doe. No. 55, pp, 96-97. Dr. Philip Lutley Sclater, of the Zoological Society of London, in a recent article to which our attention has been called, says, substantially in conformity with the evidencebefore us: " Informer days South Africa, Australia, and South America all supplied seal skins for the market, derived either from the shores of the continents themselves, or from the adjoining islands, to which the fur seals resorted for the purpose of. breeding and bringing up their young. But the Antarctic fur seal trade is now practically extinct, owing to the indiscriminate slaughter of these animals, which commenced at the end of the last century and was con- .tinued until the reduction in their numbers rendered the trade altogether unprofitable. In a single year, it is said that 300,000 seal skins were taken from the South Shetland Islands, and upward of 3,000,000 are stated to have beeu carried off from the island of Mas-a-fuero, near Juan Fernandez, in the short space of seven years. In fact, the breeding places, or rookeries, as they are called, of the fur seals in the Antarctic seas have been entirely destroyed. The myriads of seals which formerly resorted to theui have beeu either swept away or reduced to a few individuals, which seek the land in scattered bands and rush to the sea on the approach of man. There can be little question, we see, of the fate that will overtake these animals in other parts of the world unless effective measures are instituted for their protection. Although, 121 IN therefore, a few lots of seal skins may still be received from the South Seas, the furseal of the North Pacific (Otaria ursina) is, in fact, the only source of the present supply of fur seal skins that can be relied upon. At the present epoch only two remaining breeding pi aces of this animal exist. These are in Pribilof islands or Bering Sea, withiu the territory of Alaska (ceded by Russia to the United States in 1867) and the Commander Islands iu the southwest corner of the same sea, which still remain under Russian jurisdiction. Two great herds of fur seals resort to these islands respectively during the summer months for the purpose of breeding and rearing their young." Again the same scientist: "If there were no other reasons to the contrary it would be quite as fair that the pelagic sealers should catch sixty thousand seals in the open Pacific, as that the American officials should slaughter the same number on the P ribilof Islands. But, in the former case there is, of course, no possibility of making a selection of age or sex. The pelagic hunter kills every seal he can come across, whether male, female, or young. According to the American Commissioners, at least 80 per cent of the seals thus takeu are females. Worse than this, according to the same authorities, they are principally females heavy with young. Thus, for every seal of this kind takeu, two lives are sacrificed. Moreover, as the seal, if shot dead, sinks quickly below the surface, many of the bodies are altogether lost, and another considerable element of wastefulness is thus attached to pelagic sealing. Now, let me ask, what owner of a deer forest in Scotland would consent to his hinds being killed, especially during the breeding season? Is it not likewise on a grouse moor forbidden to shoot grey hens at any time? In these, and In numerous other instances which might be mentioned, the sanctity of female life is universally recognized. On the' other hand, the fur seal being polygamous, males may be killed to a large extent without fear of injury to the herd, for, although nearly equal numbers of both sexes appear to be born, one adult male is sufficient for twenty or thirty females. But the selection of males from females, aud especially of males of the age required to make the best skins, earn, only be effected on land, where the assembling together of the younger male fur seals on particular spots presents the necessary opportunity. I think, therefore, that if the fur seal is to be preserved for the use of posterity every true naturalist will agree with the American Commissioners that pelagic sealing ought to be altogether suppressed—in the first place, because it necessarily involves the de- 125 struction of female life; and in the second place, because of its wastefulness through the frequent failure to recover seals shot at sea. * * * The fur seal of Alaska (practically now the only remaining member of the group of fur seals) should be declared to be, to all intents and purposes, a domestic animal, and its capture absolutely prohibited except in its home on the Pribilof Islands." Nineteenth Century, June, 1893, p. 1038. Sir George Baden-Powell, one of the British Commissioners, publicly declared before his appointment as a commissioner, that "as a matter of fact, the Canadiau sealers take very few,'if any, seals close to these (the Pribilof) islands. The main catch is made far out at sea, and is almost entirely composed of females." Dr. A. Milne Edwards, director of the Museum of Natural History at Paris, alluding to the fur seals frequenting Bering Sea, says: "What has happened in the Southern Ocean may serve as a warning to us. Less than a century ago these amphibia [fur seals] existed there in countless herds. In 1808, when Fanning visited the islands of South Georgia, one ship left those shores carrying away 14,000 sealskins belonging to the species Arctocephalus Australis. He himself obtained 57,000 of them and he estimated at 112,000 the number of these animals killed during the few weeks the sailors spent there that year. In 1822 Weddel visited the islands and he estimated at 1,200,000 the number of skins obtained in that locality. The same year 320,000 fur seals were killed in the South Shetlands. The inevitable consequences of this slaughter were a rapid decrease in the number of these animals. So, in spite of the measures of protection taken during the last few years by the governor of the Falkland Islands, the seals are still very rare, and the naturalists of the French expedition of the Romanche remained for nearly a year at Terra del Fuego and the Falkland Islands without being able to catch a single specimen. It is a source of wealth which is now exhausted. It will be thus with the Callorhinus ursinus in the North Pacific Ocean, and it is time to insure to these animals a security which may allow them regular reproduction. I have followed with much attention the investigations which have been made by the Government of the United States on this subject. The reports of the Commissioners sent to the Pribilof Islands have made known to naturalists a very large number of facts of great scientific interest, and have demonstrated that a regulated system of killing may be safely applied in the case of these herds of seals when 126 there is a superfluity of males. What might be called a tax on celibacy was applied in this way in the most satisfactory manner, and the indefinite preservation of the species would have been assured if the emigrants, on their way back to their breeding places, had not been attacked and pursued in every way." U. S. Case, Vol. 1, App. 419. The record contains the opinions of other scientific gentlemen of high repute, in answer to written inquiries on this subject made by Prof. Merriam, of the United States Department of Agriculture, and based upon a full and accurate account of seal life. Dr. Nehring, Professor of Zoology in the Royal Agricultural College of. Berlin: "I am like yourself of the opinion that the remarkable decrease of fur seals on the rookeries of the Pribilof Islands which has, of late years,' become more aud more evident, is to be attributed mainly, or perhaps exclusively, to the unreasonable destruction caused by the seal-hunters who ply their avocation iu the open sea. The only rational method of taking the fur seal, and the only one that is not likely to result in the extermination of this valuable animal, is the one which . has hitherto been employed on the Pribilof Islands under the supervision of the Government." U. S. Oase, Vol. 1, App. 420. Prof. Salvadori, of theMuseo Zoologico, Turin, Italy: "No doubt free pelagic sealing is a cause which will act to the destruction of the seal herds, and to that a stop must be put as soon as possible." U. S. Case, Vol. 1, App. 422. Prof. Von Schreuck, of the Imperial Academy of Sciences, St. Petersburg: "lam also persuaded that pelagic sealing, if pursued in the same manner in future, will necessarily end with the extermination of the fur seal." U. 8. Case, Vol. 1, App. 422. Prof. Giglioli, director of the Zoological Museum, Royal Superior Institute, Florence, Italy: "In any case, all who are competent in the matter will admit that no method of capture could be more uselessly destructive in the case of Pinnipedia than that called pelagic sealing; not only any kind of selection of the victims is impossible, but it is admitting much to assert that out of three destroyed one is secured and utilized, and this for obvious and well-known reasons. In the case of the North Pacific fur-seal, this mode of capture and destruction is doubly to be condemned, because the destruction falls nearly exclusively on those, the nursing and pregnant females, which ought on no account to be killed. * * # I quite agree with you in maintaining that unless the matoractice 0f peiagic sealing be prevented or greatly 127 checked, both in the North Pacific and in the Bering Sea, the economic extermination of Oallorhinus ursinus is merely the matter of a few years." U. 8. Case, Vol. 1, App. 423. Prof. Blanchard, of the Medical Faculty of Paris, and general secretary of the Zoological Society of France: "By reason of the massacres of which it is the victim, this species is advancing rapidly to its total and final destruction, following the fatal road on which the Rhy- tina Stelleri, the Monarchus trophicalis, and the Macrorhinus angustiros- tris have preceded it, to cite only the great mammifers-which but recently abounded in the American seas. Now, the irremediable destruction- of an eminently useful animal species, such as this one, is, to speak plainly, a crime of which we are rendering ourselves guilty towards our descendants. To satisfy our instincts of cupidity we voluntarily exhaust, and that forever, a source of wealth, which properly regulated, ought, on the contrary, to contribute to the prosperity of our own generation and of those which will succeed it. * * * With bis harpoons, his firearms, and his machines of every kind, man with whom the instinct of destruction attains its highest point, is the worst enemy of nature and of mankind itself. Happily, while yet in time; the savants sound the alarm. In this century, when we believe in science, we must hope that their voice will not be lost in the desert." Profs. Lilljeborg and Nordenskiold, of the Academy of Sciences, Sweden unite in declaring: "As to the former question, the killing of the seals on the rookeries, it seems at present regulated in a suitable manner to effectually prevent the gradual diminishing of the stock. If a wider experience should require some modifications in these regulations, there is no danger but that such modifications will be adopted. It isevidently in the interest of the owners of the rookeries to take care that this source of wealth shall not be lessened by excessive exploitation. Nor will there be any difficulty for studying the conditions of health and thriving of the animals during the rookery season. As to pelagic sealing, it is evident that a systematic hunting of the seals in the open sea on the way to and from or around the rookeries, will very soon cause the complete extinction of this valuable, and, from a scientific point of view, so extremely interesting and important animal, especially as a great number of the animals killed in this manner are pregnant cows, or cows temporarily separated from their pups while seeking food in the vicinity of the rookery. Everyone having some experience in seal hunting can also attest that only a relatively small part. 128 of tho seals killed or seriously wounded in the open sea can in this manner be caught. We are therefore persuaded that a prohibition of pelagic sealing is a necessary condition for the prevention of the total extermination of the fur seal." U. S. Gase,Vol. l,App. 428. Prof. Middendorf, an eminent scientist of Russia: "The method of treating these animals which was originally adopted by the Rnssianr Americau Company at their home on the Pribilof Islands is still continued in the same rational manner, and has, for more than half a century, been found to be excellent, both on account of the large number of seals taken and because they are not exterminated. So long as superfluous young males are kdled, not only the existence but even the increase of the herd is assured." U. S. Case, Vol. 1, App. 430. Prof. Holub, of Prague, Austria-Hungary: "If the pelagic sealing of the fur seal is carried on still longer, as it has been executed during the last, years, the pelagic sealing as a business matter and a 'living' will soon cease by the full extermination of this useful animal." U. S. Case, Vol. 1, App. 433. The abundance of fur seals at the Island of Juan Fernandez two hundred years ago is shown by Dampier, who visited that island in 1683. Iu his. Voyage Around the World, 5th ed., 1713, Vol. 1, pp. S8, 90, it is said: "Seals swarm as thick about this island (of John Fernando, as he terms it) as if they had no other place in the world to live in; for there is not a bay nor rock that one can get ashore on but Is full of them. * * * Those at John Eernando's have fine, thick, short fur; the like I have not takeu notice of anywhere but in these seas. Here are always thousands, I might say possibly millions of them, either sitting on the bays or going and coming in the sea around the island, which is covered with them (as they lie at the top of the water playing aud sunning themselves) for a mile or two from the shore. When they come out of the sea they bleat like sheep for their young, and though they pass through hundreds of other young ones before they come to their own, yet they will not sutler any of them to suck. The young ones are like puppies, and lie much ashore, but when beaten by any of us they, as well as the old ones, will make towards the sea, and swim very swift and nimble, tho' on shore they lie very sluggishly, and will not go out of our way uuless we beat them, but snap at us. A blow on the nose soon kills them. Large ships might here load themselves with sealskins and traneoyl; for they are extraordinarily fat." 129 Another writer, referring to the destruction of fur seals in the southern seas, says: "These valuable creatures have often been found frequenting some sterile islands in innumerable multitudes. By way of illustration we shall refer only to the fur seal, as occurring iu South Shetland. On this barren spot their numbers were such that it has been estimated that it could have continued permanently to furnish a return of 100,000 furs a year; which, to say nothing of the public benefit, would have yielded annually, from this spot alone, a very handsome sum to the adventurers. But what'do these men do? In two short years, 1821-2, so great is tho rush, that they destroy 320,000. They I killed all and spared none. The moment au animal landed, though big with young, it was destroyed. Those on shore were likewise immediately despatched, though the cubs were but a day old. Those, of course, all died, their number, tit the lowest calculation, exceeding 100,000. No wouder, then, at the end of the second year the animals in this locality wero nearly extinct. So it is, we add, in other localities, and so with other seals; so with the oil-seals and so with the whale itself; every addition only making bad worse. And all this |?might easily be prevented by a little .less barbarous aud revolting cruelty, aud a little more enlightened selfishness. Fishermen are by law restrained as to the size of the meshes of their net iu taking many of our valuable fish; and in the Island of Lobos, in the River Plata, where, as we have seen, there are quantities of seals, their extermination is prevented by the governor of, Montevideo; who farms out the fjtrade under the restriction that the hunters shall not take them but at I stated periods, ages, etc." Naturalist's Library, 95. Giving due weight to all the evidence adduced by the respective Governments, including the opinions of emiueut naturalists in various countries, it is absolutely certain — That this race has been conceived, and has come into existence, upon the islauds of the United States in Bering Sea, which, by formal legislative enactment, have been set apart as a land home for these animals, where they can breed, and rear their young, aud renew their coats of fur, aud to which they may return, and for more than a century have regularly returned, from their annual migration into the high seas; That these animals, from the necessities of the race, must come into existence, and for a large part of each year must abide, upon land; That the United States, in every form in which it could be done, consistently with the nature and habits of these animals, has taken . possession of, and appropriated, this race as its property; 11492 9 130 That the taking of fur seals for commercial purposes at their breeding grounds on the St. Paul and St. George, where alone there can be a discrimination between the sexes, will not itself endanger the existence of the herd if—as was done by Russia and has been done by the United States—the killing is restricted to such proportion of available males as will leave a sufficient number for purposes of reproduction; That the killing of these animals in large numbers at any other place than their land home or breeding grounds will speedily result in the loss of the race to the world; That unrestrained pelagic sealing in Bering Sea or iu the North Pacific Ocean, even if no seals be taken on the islands by the United States or its lessees, will result in the extermination, within a very few years, of the entire race frequenting those islands; That but for tke care, supervision, and protection bestowed upon these animals at their land home by the United States, the race would long ago have become extinct; That if such care, supervision, or protection be withdrawn, the race would be destroyed; and, That the United States, by its ownership of the breeding grounds of these animals is alone, of all the nations of the earth, in a position to take or control the taking of these animals, so that their increase may be regularly obtained for use without at all impairing the stock. In the light of the above facts, which can not be disputed by anyone familiar with the record, let us inquire as to the principles of law and justice applicable to. the case. The particular question now under consideration involves two propositions, to be separately examined: First, as to the right of property which is asserted by the United States in the Pribilof herd of seals; Second, as to the protection of the herd by the United States while the seals are outside of the ordinary three-mile limit. Much was said in the course of the argument as to the classification of these fur seals among animals. One theory is, that while not strictly domestic animals, they are so nearly like animals of that class that, in determining whether under any circumstances they can become the subject of property, and if so, under what circumstances, they should be classed as ,domestic animals, or, at least, as domesticated animals. Another theory is, that they are animals ferw naturce, aud not subject to exclusive appropriation as property, except in conformity to tho principles of law applicable to animals of that class. The first theory has 131 been carefully and elaborately examined and enforced by Senator Morgan. Nothing can be added to what the learned Senator has said upon that subject. I propose to consider the subjects of property and protection iu the other aspect named, and will, therefore, inquire whether the claim of the United States to own these seals is supported by any principles of law universally recognized as controlling upon the question of property in animals commonly classed as wild, rather than domestic animals. The main contentions of the United States, in support of its claim of property, are these: That while the general rule is that no one can have an absolute property in things ferasnaturm, there are animals so near the boundary drawn by the terms wild, tame, and reclaimed, that the question must be determined by a consideration of their nature and habits in connection with the grounds upon which the institution of property stands; That, according to the established rules of law prevailing in all civilized countries, the essential facts that render useful animals, classed as wild animals, the subjects of property, when in the custody or control of, as well as while temporarily absent from, their masters, are the care, industry, and supervision of man so acting on the natural disposition of the animals as to encourage their habitual return to a particular place and to his custody and power at that place, whereby he is enabled to deal with them as a whole, in a similar manner, and so as to obtain from them similar benefits, as in the case of domestic animals; that for all purposes of property, animals so acted upon and dealt 'with may be assimilated to domestic animals, even if they be not strictly of that class; That to this class the Pribilof fur seals belong, because at the same season in every year they return to the same place, the islands of St. Paul and St. George, where they become so far subject to the power of the United States that its agents or licensees can treat them in many ways as if they were domestic animals; that all that is needed to ensure their return to and remaining upon those islands from year to year, whereby the benefits of an increase of their numbers can be obtained, is that such agents and lessees shall abstain from repelling them as they approach the land, defend them after they have arrived against pursuit by hunters, disturb them as little as possible when making selections for commercial purposes, and take males only for purposes of commerce; and 132 That the United States, its agents and lessees, do all that is necessary to secure their return each year to, and their remaining at, the Pribilof Islands for all the purposes for which they must come to, and for a time abide, upon land. These considerations, it is contended—assuming that these fur seals are of the class commonly called animals ferm naturce—rest upon a prin-. ciple fundamental in the institution of property, that principle beingthat whenever any useful wild animals, the supply of which may be exhausted by indiscriminate slaughter, or by reckless handling, "so far submit themselves to the control or dominion of particular men as to enable them exclusively to cultivate such animals and to obtain the annual increase for the supply of human wants, and, at the same time, to preserve the stock, they have a property in them; or, in other words, whatever may be justly regarded as the product of human art, industry, aud self-denial, must be assigned to those who make these exertions, as their merited reward." In opposition to this claim of property by the United States, Great Britain contends that these seals are strictly animals fierce naturce; that the only property in them known to the law is dependent on actual, physical possession; that the United States or its licensees have the exclusive right to take possession of them only while they are on the islands of St. Paul and St. George, but that such right is lost when they leave the Islands and go into the high seas, for the purpose of obtaining fish for food, even if they have, when so leaving, the intention to return to their breeding grounds; that the citizens or subjects of all nations have equally the right to kill or take possession of them in the high seas; that while on the Islands neither the United States nor their lessees take manual possession of the seals other than of those actually killed; that, even if it be true that the care, industry, self- denial, and protection bestowed upon these animals while on their breeding grounds has secured, does now secure, and will alone secure, this race from extermination by pelagic sealing, that fact can not give a right of property to the United States; and that the right of pelagic sealers to capture and kill these seals in the open seas, for profit, by any methods they choose to employ, even by such as will certainly or soon destroy the entire race, is supported by the established principles of international law. While, in a sense, all property has its root in municipal law, I agree that the question as to the ownership of these animals when they are 133 in the opeft waters of the ocean, the highway of all peoples, is to be determined ultimately by the public law of nations—that is, by those principles common to, and recognized as binding by, all civilized countries in their intercourse and relations with each other. No other law can be appealed to for the settlement of a dispute between sovereign nations as to the ownership of animals when found on the seas beyond their respective territorial limits. But by what considerations are we to be governed in ascertaining what the law of nations recognizes, allows, or forbids? The counsel for the United States contended, in argument, that in determining what rights are recognized by the law of nations, the Tribunal is not to ignore, but must give effect to, those principles of right reason, justice, humanity, and morality which have their foundation in the law of nature as applied to the institution of prdperty. This view was earnestly combated by the counsel of Great Britain, and it was, in effect, said that the teachings and precepts of the law of nature were of no importance in the present inquiry; that the rights of these two nations could not be made to depend, in any degree, upon abstract principles founded only on reason, justice, humanity, or morality, but must be determined upon grounds of positive law, resting in the affirmative assent of the nations, independently of ethical considerations arising out of distinctions which the conscience of the world makes between what is morally right and what is morally wrong, or between what is supported by sound reason and justice and what is not so supported. Of course, if there be any settled, recognized rules of the law of nations governing the particular question under consideration, they must control our decision whatever may be our view of their justice. The two nations interested are bound by such rules and the Tribunal may not disregard them, or refuse to give effect to them. But if the precise case before it is not covered by some positive rule, decision or precedent, founded on the conventions or established usages of the civilized nations of the earth, and expressly set forth in the writings of public urists, we are not, for that reason, to hold that it is not provided for by the law of nations. As a court sitting under municipal authority would be bound, in the absence of precedent, to give judgment according to the principles of right derived from the whole body of the law to which it may properly refer, so this Tribunal, constituted for the determination of questions depending upon the law of nations^ may, and if it fulfills the objects for which it was constituted, must, look into the recognized sources of that law and seek in the 134 domain of general jurisprudence for the rule of decision in the case before it. One of the recognized sources of the law of nations are the principles of natural reason and justice applicable to the relations and intercourse of independent political societies. Those principles may be said to have their origin in the Law of Nature, or in what is sometimes called the Natural Law of Equity, because approved by the moral sense of mankind. No earthly tribunal, -administering justice between individuals, or between nations, if unfettered by statute, or by binding precedent, may rightfully disregard the rules of reason, morality, humanity, and justice derived from that law. Those rules are not the less binding because not formulated in some book, ordinance, or treaty. Certainly, this Tribunal of Arbitration must regard the rules of international morality and justice, applicable to the subject, and fairly*to be deduced from the rights and duties of States and from the nature of moral obligations, as an integral part of the law of nations by which the matters submitted to it are to be determined. The institution of property is ordained by society for its inirjroveinent and preservation. And there are certain rules, arising out of the very necessities of that institution, which are common to the jurisprudence of all civilized nations. While these rules may be more frequently found recognized in municipal law, they are so grounded in the well-being of man, and so thoroughly supported by right reason, and natural justice, as to have become universally recognized, and, therefore, must be regarded as part of the common law of civilized countries. Nations, no more than individuals, may disregard those rules, for upon their observance depends the existence of organized society and the security of government among civilized peoples. That I am not in error in supposing that these views have been generally accepted and are enforced where action is not controlled by statutes or by the provisions of treaties, will appear from the decisions of courts and from the works of writers upon international law. Chief Justice Marshall, delivering the judgment of the Supreme Court of the United States, after observing that the law of nations is in part unwritten and in part conventional, said that "to ascertain that which is unwritten we resort to the great principles of reason and justice; but as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions." Thirty Hhds. of Sugar vs. Boyle, etc., 9 Granch's Reports, 191,197. 135 In the case of The Helena, Lord Stowell, considering the principles of international law, observed "that some people have foolishly imagined that there is no other law of nations but that which is derived from positive compact and convention." 4 Robinson's Admiralty, Rep. 7. Bacon, in his Dissertation on the Advancement of Learning, says that "there are in nature certain fountains of justice, whence all civil laws are derived but as streams; and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain." Bk. 2, chap. 23, sec. 44. Blackstohe declares that the law of nature being coeval with mankind, and dictated by God himself, "is binding all over the globe in all countries, and at all times," and that "no hnman laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original." And he also says: "As it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, ^entirely independent of each other and yet liable to mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called the' law of nations,'which, as noneof these states will acknowledge a superiority in the other, can not be dictated by any, but depends entirely upon the rules of natural law, or. upon mntnial compacts, treaties, leagues, and agreements between those several communities; in the construction, also, of which compacts we have no other rule to resort to but the law of nature, being the only one to which all the communities are equally subject, and therefore, the civil law very justly observes that quod naturalis ratio inter omnes homines constituit vocatur jus gentium." Bk. 1, p. 41, 43. In his Commentaries on International Law Sir Robert Phijlimore says: " Grotius enumerates these sources [of international law] as being Hpsanatura, leges divinas, mores, et pacta.' In 1753 the British Government made an answer to a memorial of the Prussian Government, which was termed by Montesquieu reponse sans replique, and which has been generally recognized as one of the ablest expositions of international law ever embodied in a state paper. In this memorable document the law of nations is said to be founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage." 1 Philli- more, eh. 3, sec. 20. In the judgment delivered by him in Queen vs. 1S6 Keyn, Law Rep., 2 Exch. Div. 214, Dr. Phillimore states that this answer was framed by Lord Mansfield and Sir George Lee. The same learned author declares that the sources from which international jurisprudence is derived embrace not only the universal consentof nations, as expressed by positive compact, and as implied by usage, custom, and practice, as disclosed by precedents, treaties, public documents, marine ordinances, the decisions of international tribunals, and the works of eminent writers upon international jurisprudence, but, also, "the Divine law, embodying the principles of eternal justice, implanted by God on all moral and social creatures, of which nations are the aggregates and of which governments are the international organs," as well as "the Revealed Will of God, enforcing and extending these principles of natural justice," and " Reason which governs the application of these principles to particular cases." 1 Phillimore, p. 67, c. 8, § 58. In the above case of Queen vs. Keyn, Sir William Baliol Brett, now Lord Esher, Master of the Rolls, after observing that the authorities made it clear that the consent of nations was requisite to make any proposition a part of the law of nations, well said: " Their consent is to be assumed to the logical application to given facts of the ethical axioms of right and wrong. Such an application is the foundation of every system of law, including necessarily the law of nations." L. R., 2Exch. Div, 131. Chancellor Kent, whose writings are known to the jurists of all nations, states in his Commentaries, that the most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement, and that it would be improper to separate this law entirely from natural jurisprudence aud not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced, aud he says: "There is a natural and a positive law of nations. By the former every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience." "We ought not, therefore." that great iurist continues, "to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to 13? other powers, as tbey are in the management of their own local concerns." States or bodies politic, he observes, "are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The law of nations is a complex system, composed of various ingredients; It consists of general principles of right and justice, equally suitable to the government of individals in a state of natural equality and to the relations and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce and a code of conventional or positive law." His conclusions upon this subject are thus stated: "In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligation; and we have the authority of the lawyers of' antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligations of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science. The law of nations, so far as it is founded on the principles of natural law, is equally binding, in every age and upon all mankind." Kent's Commentaries, Part 1, Led. 1, pp. 2-4. These views of Chancellor Kent seem to be approved by the instructed judgment of Sir Travers Twiss, the ; eminent publicist of Great Britain, who has himself divided the Law of Nations into Natural or Necessary Law, and Positive or Instituted Law. The Law of Nations, ch. vi, sees. 82 and 105, ed. 1884, pp. 145,176. Ortolan, in his work on International Rules and Diplomacy of the Sea, thus states his views: "It is apparent that nations not having any common legislator over them have frequently no other recourse for determining their respective rights but to that reasonable sentiment of right and wrong, to those moral truths already brought to light, and to those which are still to be demonstrated. This is what is meant when it is said that natural law is the first basis of international law." Vol. 1, bk. 1, ch. iv.,p. 71. Vattel, in the preface of his celebrated work, states that the moderns aregenerally agreed in restricting the appellation of the law of nations to that system of right and justice whicrt ought to prevail between nations or sovereign states. And in the body of his work he says: "As men are subject to the law of nature, and as their union iu civil 138 society can not have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the law of nature, and is bound to respect them in all her proceedings." We must, therefore, he says, apply to nations the rules of the law of nature, where they can be applied in a manner suitable to the subject, " in order to discover what their obligations are, and what their rights; consequently, the law of nations is originally no other than the law of nature applied to nations." Ch. 56, sees. 5, 6. Wheaton, whose authority is recognized by all publicists, says: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, with such definitions and modifications as may be established by general consent." International Law, Pt. 1, ch. 1, see. 414. Pomeroy, an American writer of distinction, observes: "What is called international law in its general sense, I would call international morality. It consists of those rules founded upon justice and equity, aud deduced by right reason, according to which independent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations." International Law, ed. 1886, G. 1, S. 29. Woolsey, another American writer, cited by both sides in argument, says: "It would be strange if the state, that power which defines rights and makes them real, which creates moral persons or associations with rights and obligations, should have no such relations of its own—should be a physical and not a moral entity. In fact, to take the opposite ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere convenience." Ed. of 1892. Burlamaqui, in his Principles of Natural and Politic Law, (p. 14), after quoting with approval the observation of Hobbes that natural law is divided into the natural law of man and the natural law of states, and that the latter is what is called the law of nations, presents the same general view: "Thus natural law and the law of nations are in reality one and the same thing, and differ only by an external denomination. We must, therefore, say that the law of nations, properly so called, and considered as a law proceeding from a sirperior, is nothing else but the law of nature itself, not applied to men, considered simply as such, but to nations, states, or their chiefs, in the relations they have together, and the several interests they have to manage 139 between each other." Ed. 1823, Pt. II, c. 6, pp. 135, 6. In this view Puffendorf expressed his concurrence, observing that he recognized "no other kind of voluntary or positive international law, at least none having force of law, properly so called, and binding upon nations as emanating from a superior." Vol. 1, book 2, c. 3, § 23, p. 243, 5th. ed.; ed. 1729, English, 149. Heinnecius: " The law of nations is the law of nature itself respecting or applied to social life and the affairs of societies and independent -states. * * * Hence, we may infer that the law of nature doth not differ from the law of nations, neither in respect of its foundation and first principles nor of its rules, but solely with respect to its object, Wherefore their opinion is groundless who speak of, I know not what, law of nations distinct from the law of nature." Vol. I, Ed. 1763, 8ec. 21, p. 14. Hautefeuille: "What is true, aud in my opinion, incontestable, is that notions of what is just and right, and what is unjust are found in all men; it is that all individuals of the human race that are in the enjoyment of reason have these notions graven upon their hearts, and that they bring with them into the world when they are born. These notions do not extend to all the details of law as do civil laws, but they have reference to all the most prominent points of law. It cannot be denied that the idea of property is a natural and innate idea. * * The natural or divine law is the only one that can be applied among nations —among beings free from every bond and having no interest in common. * * International law is, therefore, based upon the - divine and primitive law; it is all derived ofrom this source." Vol. 1, p. 46,1848. Martens: "Each nation being considered as a moral being, living in a state of nature, the obligations of one nation towards another are no more than those of individuals, modified and applied to nations; and this is what is called the natural law of nations. It is universal and necessary, because all nations are governed by it, even against their will." Law of Nations, German, 4th ed. 1829, p. 2 of Introduction. Ferguson: " International law, being based on international morality, depends upon the state of progress made in civilization. * * * in_ vestigating thus this spirit of law, we find the definition of International Law to consist of certain rules of conduct which reason, prompted by conscience, deduces as consonant to justice, with such limitations and modifications as may be established by general consent, to meet the exigencies of the present state of society as existing amotig nations and which modern civilized states regard as binding on them in their rela- 140 tioris with one another, with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country." Manual of International Law, Dutch, 1884, Vol. 1, Pt. II, chap. 3, sec. 21, p. 66. Carlos Testa: "This application of the precepts of natural law, whieh obliges nations to practice the same duties that it prescribes for individuals, constitutes the law of nations, which, when considered according to its origin (which is based upon natural law), is also called the primitive or necessary law of nations. * * * The origins of international law are therefore three in number: (1) The reason and the conscience of what is just and unjust, independent of any prescription; (2) custom; (3) public treaties. The principles, practices, and usages of the law of nations, in accordance with these limits, regulate the conduct of nations, and it is for this reason that in their generality they constitute international law. Conventional law may abrogate the law of custom, but it loses its character as a law if it establishes provisions at variance with natural law." Le Droit International Maritime (Portuguese), translated by H. Boutiron, 1886, Pt. 1, ch. 1, p. 46. Looking, then, to the reason of the thing, and to the concurrence of views upon this point, among jurists and publicists, I must withhold my assent from the proposition that this Tribunal, in ascertaining whether the law of nations sanctions and supports the claim of property made by the United States, may not consider—the question not being concluded by treaties or precedents—what is demanded in respect to the subject of controversy by the law of nature, that is, by the principles of justice, sound reason, morality, and equity, as recognized and apjrroved. by civilized peoples. The question was propounded in argument whether any precedent precisely in point was recorded in the writings of publicists, or in the judgments of the courts, or in the statutes or ordinances of maritime nations, that supports the claim of the United States to own these seals and jjrotect them when they are in the seas, beyond territorial jurisdiction. This question must, of course, be answered in the negative, because, so far as is known, the case has never before arisen. And it would not uow be a practical one but for the intervention of pelagic sealing, the prosecution of which involves the very existence of this race of animals. It has not heretofore been asserted in behalf of any nation that the doctrine of the freedom of the seas recognized it as a right, in individuals, even by methods barbarous and cruel, to exterminate a race of useful animals, found by them in the high seas, and thereby deprive the world of all benefit to be derived from them. It 141 is more pertinent to inquire whether this claim of property is supported by principles of morality, reason, equity, and justice every where recognized as vital in organized society. It is still more pertinent to inquire whether the law of nations furnishes any precedent opposed or hostile to the claim made by the United States of property in these animals, which are conceived, and, if the race is to exist at all, must be born and reared, on land, and which, although passing much time on the high seas, periodically return to, and, for a time, abide upon the terretory of the United States. And they return to and abide upon that territory, under such circumstances, that the United States, the sovereign and owner of the land, and it alone, of -all other nations, can, by the exercise of care, industry, and self-denial take the increase for the benefit of the world, without, in any degree, diminishing or impairing the stock. If there is no recorded precedent based upon actual dispute between nations, which would determine such a case,- we may properly inquire whether there is such an agreement among civili/ed nations, in respect to the institution of property and the rules governing the acquisition of property, as will justify us in adjudging that the present claim of the United States rests upon principles universally recognized. If the rules embodied in the concurring municipal law of the different countries of the earth, and founded in reason, justice,and the necessities of organized society, will sustain this claim, our judgment to that effect will be in accordance with the law of nations; for nothing to the contrary appearing in positive enactments, binding upon this Tribunal, it must be assumed when dealing with a question of property, that the nations assent to snch rules in the law of property as are common to the jurisprudence of civilized countries. It has been well observed by Sir James Mackintosh, in his famous Discourse on the Law of Nature and Nations, that the two in i st it hi ions of property and marriage constitute, preserve and improve society: that upon their gradual development depends the progressive civilization of mankind; that on them rests the whole order of civil lite; that the duties of men, subjects, princes, lawgivers, and States are all parts of one system of universal morality; and that" the principle of justice, deeply rooted in the nature and interest of man, pervades the whole system. and is discoverable in every part of it. even to its minutest ramification in a legal formality, or in the construction of an article in a treaty." When, therefore, a Tribunal, administering the Law of Nations, is required to consider a question of property, it may not disregard what the principles of justice, right reason, and the necessities 142 of society, evidenced by the concurring municipal law of the world, demand *at its hands. Any other view is, I "submit, inadmissible. The law of self-defense is a part of the law of nations, not so much because it is declared to be so by legislation or treaty, but because it is founded in principles of justice and right that are recognized among all peoples. Murder aud theft are crimes against society, whether so declared by statute or not, and they would be so regarded by any Tribunal administering the law of nations, if its judgment depended upon its estimate of those acts, not because they are made crimes by any statute or convention binding upon the world, but because all mankind, in recognition of the principles of eternal and natural justice, implanted in man by the Creator, regard them in that light. It is said that even if there be grounds of reason and justice, that is of natural law, why it might be proper and desirable that these fur seals should be held to be the subject of property, such considerations are of no weight whatever in the absence of the general assent of nations that they may be so regarded. Such an argument leads to this strange conclusion: That in the absence of any affirmative assent of nations to a right decision, that is, to a decision conformable to the principles of sound reason, justice, and the necessities of mankind, we must, for the want of such assent, make a wrong decision, that is, one forbidden by souud reason and justice and hostile to the best interests of society. Thus, according to the argument presented, a Tribunal administering international law must, in the absence of the express assent of the nations, reject every new affirmative proposition, however strongly supported by reason, justice, and morality, and thereby establish the contrary as the rule that should govern the conduct of nations. True wisdom, indeed, the Treaty and public law, I submit, require that this Tribunal accept the doctrine that whatever is demanded by right reason, justice, and morality has the sanction of the law of nations, unless it has been otherwise determined by the general assent of mankind. This was the principle declared by Mr. Justice Story, when he said: "I think it may be unequivocally affirmed that every doctrine that may be fairly deduced by correct reasoning from the rights and duties of nations and the nature of moral obligations, may theoretically be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and custom, it may be enforced by a court of justice wherever it arises injudgment/ La Jeune Eugenie, 2 Mason's Reports, 449. 143 There are rules governing the acquisition of property, not always sanctioned by legislation, but yet common to the jurisprudence of all countries, and which we may not ignore or refuse to recognize. I cannot conceive it to be possible that the Tribunal, in deciding a question of property in animals, found in the high seas, may disregard the rules- of property which are imbedded in the concurring municipal law of civilized nations. That must be deemed the law of all to which all have assented. And so if the Tribunal should hold that these fur seals are the property of the United States when found in the high seas, it would thereby recognize the right of that country to protect them against pelagic sealing, not because that right is secured by statute or treaty, but because by the universal judgment of nations, the owner of property may employ for its protection and preservation such means, not forbidden by law, as may be necessary to that end. It is true, in fact, that the recognized doctrines as to possession, detention, right of possession, and right of property, as they have been applied in cases which have arisen between independent states, are derived from the principles of natural law as understood and as expounded by statesmen and public jurists. While there are wild animals whose nature and habits preclude the possibility of their being appropriated as property, except when they are confined or are otherwise in actual custody, there are others, valuable to mankind and usually assigned to that class, which, by the common law of the world, may, under given circumstances, become the property of man, without being held in continuous, actual possession. Attention will first be given to the Roman law, because Reason, which governs-the application of the principles of justice to particular cases, is itself " guided and fortified by a constant reference to analogous cases and to the written reason embodied in the text of the Roman law, and in the works of commentators thereupon." 1 Phillimore, c. 8, sec. 58. The same author observes that " the Roman law may, in truth, be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, historically speaking, the actual basis." Again: "Independently of the historical value of the Roman law as explanatory of the terms and sense of treaties and of the language of jurists, its importance as a repository of decisions, the spirit of which almost always, and the letter of which very frequently, is applicable to the controversies of independent States, can scarcely be overstated. From this rich treasury of the principles of universal jurisprudence, it will generally be found that .the deficiencies 144 of precedent, usage, and express international authority inay be supplied. Throughout the greater portion of Christendom it presents to each State what may be fairly termed their own consent, bound up in the municipal jurisprudence of their own country; and this not merely to the nations of Europe, whose codes are built on the civil law, but to the numerous colonies and to the independent States which have sprung from those colonies, and which cover the globe." 1 Phillimore sees. 36 and 37. Lord Stowellsaid that a great part of the law of nations was founded ou the civil law. The Maria, 1 Robinson's Adm. Rep., 363. "A great part, then, of internatioual law," Henry Sumner Maine says, "is Roman law spread over Europe by a process exceedingly like that which a few centuries earlier had caused other portions of Roman law to filter into the interstices of every European legal system. * * * In abookpublishedsomeyears ago on AncientLaw, I made this remark: 'Setting aside the Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the Roman jurisconsults, affirmed by them to be in harmony with the jus gentium [natural law], the Publicists have found a reason for borrowing it, however plainly it may bear the mark of a distinctive Roman origin.' * * * The greatest function of the law of nature was discharged in giving birth to modern international law. * * * The impression that the Roman law sustained a system of what would now be called international law, and that this system was identical with the law of nature, had undoubtedly much influence in causing the rules of what the Romans called natural law to be engrafted on aud identified with the modern law of nations" Maine's International Law, pp. 13,17, 28. VanLeeuwen: "The Roman law is at the present day almost everywhere, and by every nation upheld as a common law of nations, and adopted in cases where particular laws or customs fail." Roman-Dutch Law, Vol. 1, Bk. 1, Oh. 1, sec. 11, p. 3, Ed. 1881, Kotze's Translation. Aud, "it will generally be found," says Halleck, "that the deficiencies of precedent, usage, and express international authority may be supplied from the rich treasury of the Roman civil law. Indeed, the greater number of controversies between States would find a just solution in this comprehensive system of practical equity, which furnishes principles of universal jurisprudence applicable alike to individuals and to States." 1 Halleck's International Law, e. 2, see. 21. These authorities justify recourse to the Roman law, as expounded by jurists and commentators, for those principles of equity, right, aud justice that constitute a part of tho BBS of nations. 145 It is said in the Institutes of Justinian: "11. Things become the property of individuals iu many ways; for we obtain the ownership of some by the natural law, which, as we have said, is styled jus gentium; and of some by the civil law. It is most convenient, then, to commence with the more ancient law, and itis clear that the more ancient is the natural law, since the nature of things brought it into existence simultaneously with the human race itself;, whilst civil laws began to exist when states were first founded, magistrates appointed, and laws written. 12. Wild beasts, therefore, and birds and fishes, that is to say, all animals that live on the earth, in in the sea or in the air, as soon as they are caught by any one, become his at once by virtue of the law of nations. For whatever has previously belonged to no one is granted by natural reason to the first taker. Nor does it matter whether the man catches .the wild beast or bird on his own ground or on another's; although a person purposing to enter on another's land for the purpose of hunting or fowling may, of course, be prohibited from entering by the owner if he perceive him. Whatever, then, you have caught of this kind is regarded as yours, so long as it is kept in your custody; but when it has escaped from your custody and reverted to its natural freedom it ceases to be yours, and again belongs to the first taker. And it is considered to have recovered its natural freedom when it has either escaped out of your sight, or is still in sight, but so situated that its pursuit is difficult. 13. It has been debated whether a wild beast is to be considered yours at once, if wounded in such a manner as to be capable of capture; and some have held that it is yours at once, and is to be regarded as yours so long as you are pursuing it; but that if you desist from pursuit it ceases to be yours and again belongs to the first taker. Others have thought that it is not yours until you have actually caught it. And we indorse the latter opinion, because many things may happen to prevent your catching it. 14. Bees, too, are naturally wild. Therefore, any bees which settle upon your tree are no more considered yours, until you have hived them, than birds which have made their nest in that tree of yours; if, therefore, any one else hives them he will be their owner. The honeycomb, too, which they have made, anyone maytake away. But undoubtedly if you see a person entering .upon your land before anything has been removed (in integra re) you may legally for- 'bid him to enter. A swarm which has flown from your hive is considered to be yours, so long as it is in your sight and its pursuit not 11492 10 146 difficult; otherwise it belongs to the first taker. 15. Peacocks and pigeons are naturally wild, and it is not material that they get into a habit of flying away and coming back; for bees do the same, and their nature is admitted to be wild. Some people, too, have deer so tamed that they habitually go into the woods and come home again, and yet no one denies that these animals also are naturally wild. Still, with regard to animals of this sort, which go and come regularly, the rule lias been adopted, that they are regarded as being yours so long as they have the intent of returning; for if they cease to have that intent they also cease to be yours and become the property of the first taker. And they are held to have lost the intent of returning when they cease from the habit of returning." Book II, Title I, Abdy & . Walker's ed., pp. 82, 83, 84. To the same effect is Gaius, who, in his Commentaries, says: "66. But noC only those things which become ours by delivery are acquired by us on natural principles, but also those which we acquire by occupation, on the ground that they previously belonged to no one; of which, class are all things caught on land, in the sea, or in the air. 67. If, therefore, we have-caught a wild beast, or a bird, or a fish; anything we have so caught at once becomes ours, and is regarded as being ours so long as it is kept in our custody. But when it has escaped from our custody and returned into its natural liberty, it again becomes the property of the first taker, because it ceases to be ours. And it is considered to recover its natural liberty when it has either gone out of our sight or, although it be still in our sight, yet its pursuit is difficult. 68. With regard to those animals which are accustomed to go and return habitually, as doves, and bees, and deer, which are in the habit of going into the woods and coming back again, we have this rule handed down: that if they cease to have the intent of returning they also cease to be ours, and become the propetty of the first taker, and they are considered to cease to have the intent of returning when they have abandoned the habit of returning." Bk. II, Sees. 66, 67, and 68. Abdy & Walker's ed. p. 98. See, also, Hunter's Roman Law, 2d ed., p. 346. Van Leenwen, in his Commentaries on Roman-Dutch Law, enumerates among res. nullius those which, " although not belonging to anybody, may yet be brought under the dominion or possession of another;" and while stating that there are some wild animals, " as birds, fish, and beasts inhabiting the sea or other waters, the air, or the earth," which "may, according to the original institution of laws, be captured 147 and owned by everyone without distinction," he says, in respect to others: " For the animals that are accustomed to go out and return, as bees, pigeons, ducks, geese, and the like, although wild by nature, and frequently roaming very far, are considered to remain our property, and may not be acquired by anybody unless they have continued absent, and have been abandoned by us without hope of their returning." Bk. 2, chap. 3. Bowyer, in his treatise on Modern Civil Law, while stating the general ride to be that wild animals, birds, and fish, and all animals that are produced in the sea, the heavens, and the earth become the property, by natural law, of whoever takes possession of them, the reason being that whatever is the property of no man becomes, by natural reason, the property of whoever occupies it, says: " Bees, also, are of a wild ^nature, and therefore they no more become the property of the owner of the soil by swarming in his trees than do the birds which build in them; and they are not his unless he inclose them in a hive. Consequently, whoever hives them makes them his own. And while they are wild anyone may cut off the honeycombs, though the owner of the land may prevent this by warning off trespassers. And a swarm flying from a hive belong to the owner of the hive so long as it is within his sight, but otherwise it is the property of whoever takes possession of it. With regard to creatures which have the habit of going and returning, such as pigeons, they remain the property of those to whom they belong so long as they retain the animus revertendi, or disposition to return. But when they lose that disposition they become the property of whomsoever secures them. And they must be held to have lost the •Umimus revertendi as soon as they have lost the habit of returning," p. 72. It will not be questioned that these authorities show that, according to the Roman law. and under certain circumstances, property may exist in some animals admittedly fierce naturae. What those circumstances are will be presently considered. The law common to both of the nations here represented, except : where some statute has intervened and established a different rule, is in harmony with the rules established in the Roman law. Bracton, after showing that- dominion over things by natural right or by the right of nations may be acquired, or lost, in various ways, says: " Occupation also includes shutting up, as in the case of bees, which are wild by nature, for if they should have settled on my tree they would not be any the more mine, until I have shut them up in a hive, than birds which 148 have made a nest in my tree, and therefore if another person shall shut them up, he will have the dominion over them. A swarm, also, which has flown away out of my hive, Is so long understood to be mine as long as it is in my sight, and the overtaking of it is not impossible, otherwise they belong to the first taker; but if a person shall capture them, he does not make them his own if he shall know that they are another's, but he commits a theft unless he has the intention to restore them. And these things are true, unless sometimes from custom in some parts the practice is otherwise. What has been said above applies to animals which have remained at all times wild; and if wild animals have been tamed, and they hy habit go out and return, fly away, and fly back, such as deer, swan, sea fowls, and dov&j, and such like, another rule has been approved, that they are so long considered as ours as long as they have the disposition to return; for if they have no disposition to return they cease to be ours. But they seem to cease to have the disposition to return when they have abandoned the habit of returning; and the same is said of fowls and geese which have become wild after being tamed." Braeton, bk. 2, ch. 1. Comyn observes that although in things ferw natural, no one can have an absolute property, as in deer and conies, in hawks, doves, herons, pheasants, partridges or other fowls at large and not reclaimed, or in fish at large in the water, yet a man may have " a qualified or possessory property iu them," as in deer, pheasants, partridges, or hawks, tamed or reclaimed, or doves in a dovecot, or young herons in their nest, or fish in a tank. " But," he says, " if deer, fowls etc., tame or reclaimed, attain their natural liberty, and have no inclination to return, the property shall be lost," implying that the right of property is not lost, so long as the animal or fowl reclaimed or tamed, has, when leaving the premises of the owner, the inclination to return. Digest, Tit. Biens, E. Vol. 2, p. 135. In Bacon's Abridgment it is said: "The wild animals, such as deer, hares, foxes, etc., are understood to be those which by reason of their swiftness or fierceness fly the dominion of man, and in these no person can have property, unless they be tamed or reclaimed by him; and as property is the power that a man hath over any other thing for his own use, and the ability that he has to apply it to the sustentation of his being, when the power ceases his property is lost; and by consequence an animal of this kind, which, after any seizure, escapes into the wild common of nature and asserts its own liberty by its swiftness, is no 149 more mine than any creature in the Indies, because I have it no longer in my power or disposal. Hence it appears that by the common law every man has an equal right to such creatures as were not naturally under the power of man, and that the mere capture or seizure created a property in them." But, says the author: "By taking and taming them they belong to the owner, as do all the other tame animals, so long as they continue in this condition; that is, as long as they can be ■ considered to have the mind of returning to their wasters; for while they appear to be in this state they are plainly the owner's and, ought not to be violated; but when they forsake the houses and habitations of men, and betake themselves to the wood, they are then the property of any man." Bouvier's Ed., Title, Game, Vol. 4, pp. 431, 432. Blackstone says: "II. Other animals that are not of a tame and domestic nature are • either not the objects of property at all, or else fall under our other ' division, namely, that of qualified, limited, or special property, which fis such as is not in its nature permanent, but may sometimes subsist and at other times not subsist. In discussing which subject, I shall, fin the first place, show how this species of property may subsist in such animals as are fierce naturce, or of a wild nature, and then how it may subsist iu any other things-when under particular circumstances. " First, then, a man may be invested with a qualified, but not an absolute property, in all creatures that are fierce naturce, either per | inchistriam, propter impotentiam, or propter privilegium. "1. A qualified property may subsist in animals fierce naturce, per industriam Jtominis, by a man's reclaiming, and making them tame by art, industry, and education, or by so confining them within his own immediate power that they can-not escape and use their natural liberty. And under this head some writers have ranked all the former species -of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom, as horses, swine, and other cattle, which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity, and are, therefore, say they, called mansueta, quasi manui assueta. But, however well this notion may be founded, abstractly considered, our law apprehends the most obvious distinctions to be between such animals as we generally see tame, and are, therefore, seldom, if ever, found wandering at large, which it calls domitce naturae, and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically fcras 150 naturce, though it may happeu that the latter shall be sometimes tamed and confined by the art and industry of man—such, as are deer in a park, hares or rabbits in an inclosed warren, doves in a dove house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of man than while they continue in his keeping or actual possession; but if at any time they regain their natural liberty his property instantly ceases, unl-ess they have animum revertendi, which is only to be known by their usual custom of returning. A maxim ' which is borrowed from the civil law, revertendi animum videntur desi- nere habere tune, cum revertendi eonsuetudinem deseruerint. The law, therefore, extends this possession further than the mere manual occupation; for my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property, for he has animum revertendi. So are my pigeons that are flying at a distance from their home (especially of the carrier kind), and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester; all which remain still in my possession, and I still preserve my qualified property in them. * * * Bees also are fierce naturce, but when hived and reclaimed, a man may have a qualified property in them by the law of nature, as well as by the civil law. * * * In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible; a property that may be destroyed if they resume their ancient wildness, and are found at large." Bk. 2, p. 391. Kent, in his Commentaries, says: " Animals fierce naturce, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property; but when they are abandoned, or escape, and return to tlieir natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under the protection of law as any other property, and every invasion of it is redressed iu the same manner. The difficulty of ascertaining with precision the application of the law arises from the want of some certain determinate stawlard or rule by which to determine when an animal is fierce, vel domitce natural. If an animal belongs to the class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is then a subject clearly of absolute property; but if he belongs to the class of animals which are wild by nature, and owe all their temporary 151 docility to the discipline of man, such as deer, fish, and several kind of fowl, then the animal is a subject of qualified property, and which continues so long only as the tameness and dominion remain." Referring to the difference of opinion among naturalists and writers, as to whether all animals were originally tame, and owed their wildness or ferocity to the violence of man, the author says: "The common law has wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Puffendorf (Laws of Nature and •Nations, Bk. 4, C. 6, Sec. 5), by referring the question whether the animal be wild or tame to our knowledge of his habits derived from fact and experience." 2 Kent's Oomm., 348. Has there been any departure from these principles in the judicial tribunals of Great Britain or the United States? No case was cited in argument showing that animals fierce naturce could not, under any circumstances, become the subject of property. On the contrary, our attention has been called to cases distinctly proceeding upon the ground that the inquiry whether particular animals, naturally wild, were to be regarded as property, depended upon a consideration of their nature and habits, and the extent to which man, by acting upon their "natural instincts or disposition, and by care and watchfulness, has established an industry in respect to them, and induced them to remain so far under his control or power, as to permit him, by means of such control or power to obtain the benefit of their increase, without injuring the stock. This is illustrated by Davies vs. Powell, Willes Rep., 46, where the principal question was whether deer, in a park of 600 acres, which did not confine them so they could be taken at pleasure, were dis- trainable for rent. They were not in possession, by actual confinement, and could only have been taken by shooting, or with dogs. The case went off upon the pleadings, but Chief Justice Willes, among other things, said: "It is expressly stated in Bro. Abr. tit, 'Property,' pi. 44, and agreed in all the books, that if deer or any other things fierce naturce become tame a man may have a property in them. * * * Upon a supposition, therefore, which I do not admit to be the law now, that a man can have no property in any but tame deer, these must be taken to be tame deer, because it is admitted that the plaintiff had a property iu them. * * * Fourth. The last argument, drawn ab inusitato, though generally a very good one, does not hold in the present case. When the nature of things changes, the rules of law must change too. 152 When it was holden that deer were not distrainable, it was because they were kept principally for pleasure and not for profit, and were not sold and turned into money as they are now. But now they are become as much a sort of husbandry as horses, cows, sheep, or any other cattle. Whenever they are so, aud it is universally known, it would be ridiculous to say that when they are kept merely for profit they are not distrainable as other cattle, though it has been holden that they were not so when they were kbpt only for pleasure. The rules concerning personal estates, which were laid down when personal estates were but. small in proportion to lauds, are quite varied, both in courts of law aud equity, now that personal estates are so much increased and become so considerable a part of the property of this kingdom " The case of Morgan, etc., Executors of Abergavenny vs. Williams, Earl of Abergavenny (8 0. B., 768), has a distinct bearing on some aspects of the question under consideration. That was an action of trover to recover damages for the conversion of deer, a considerable number of which had the range of a park, consisting of upwards of 1,100 acres of laud, and, in many parts, of a very wild and rough description. Some of the deer were described by witnesses as tame, others as wild, meaning thereby, as the court said, that some were less shy and timid than others. The case appeared to have been tried upon the issues, whether the deer wereiu what was called a legal park, and whether, in view of the state and condition of the animals, the nature of the place where they were kept, aud the mode in which they had been treated, they could be regarded as tamed or reclaimed. The jury found that the park had all the incidents of a legal park, and that the animals had been originally wild, but had been reclaimed. Upon the hearing of a rule nisi for a new trial before Lord Chief Justice Wilde and Justices Maule, Coltmau, and Cresswell, the court, referring to the objection that the jury had been misdirected, said: "That it was proper to leave the question to the jury in the terms in which the issue is expressly joiued can not be disputed, and the direction that that question must be determined by referring to the place in which the deer were kept, to the nature and habits of the animals, and to the mode in which they were treated, appears to the court to be a correct direction; audit seems difficult to ascertain by what other, means the question should be determined, whether the evidence in the case was such as to warrant a conclusion that the deer were tamed and reclaimed. The court is, therefore, of opinion that the rule can not be 153 supported on the ground of misdirection. It is not contended that there was no evidence fit to be submitted to the jury, and that, therefore, the plaintiff ought to have been nonsuited; butit is said that the weight of evidence was against the verdict. In considering whether the evidence warranted the verdict upon the issue, whether the deer were tamed or reclaimed, the observations made by Lord Chief Justice Willes in the case of Davies vs. Powell, are deserving of attention. The difference iu regard to the mode and object of keeping deer in modern times from that which anciently prevailed, as pointed out by Lord Chief Justice Willes, can not be overlooked. It is truly stated that ornament and profit are the sole objects for which deer are now ordinarily kept, whether in ancient legal parks, or in modern iu closures so called; the instances being very rare in which deer in such places are kept and used for sport; indeed, their whole management differing very little, if at all, from that of sheep, or of any other animals kept for profit. And in this case, the evidence before adverted to was that the deer were regularly fed in the whiter, and does with young wero watched; thefawns taken as soon as dropped, and marked; selections from the herd made from time to time, fattened in places prepared for them, and afterwards sold or consumed, with no difference of circumstance than what attached, as before stated, to animals kept for profit and food. As to some being wild aud some tame, as it is said, individual animals no doubt differed, as individuals in almost every race of animals are found, under any circumstances, to differ in the degree of tameness that belongs to them Of deer kept in stalls, some would be found tame aud gentle, and others quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed aud reclaimed, each case must depend upon the particular facts of it; and in this case the court think that the facts were such as were proper to be submitted to the jury; and, as it was a question of fact for the jury, tho court can not perceive any sufficient grounds to warrant it in saying that the jury have come to a wrong conclusion upon the evidence, and do not feel authorized to disturb the verdict; and the rule for a new trial must, therefore,-be discharged." In Blades vs. Higgs, (13 G. B. N. 8., 844), in Exchequer Chamber, on appeal, which was an action for the conversion of rabbits, with a count for assault, and which, strictly, only involved the question whether game found, killed, and taken by a trespasser npon the land of auother became the property of the owner of the soil, ratione soli, or was the 154 property of the trespasser, Baron Wilde, an English judge of high authority, Mellor, J., concurring, said: " It has been urged in this case that an animal fierce naturce could not be the subject of individual property. But this is not so; for the common law affirmed a right of property iu animals even though they were fierce naturce, if they were restrained either by habit or inclosure "within the lands of the owner. We have the authority of Lord Coke's reports for this right in respect of wild animals, such as hawks, deer, and game, if reclaimed, or swans or fish, if kept in a private moat or pond, or doves in a dove cote. But the right of property is not absolute; for, if such deer, game, etc., attain their wild condition again, the property in them is said to be lost. The principle of the common law seems, therefore, to be a very reasonable one, for in cases where either their own induced habits or the confinement imposed by man have brought about in the existence of wild animals the character of fixed abode in a particular locality, the law does not refuse to recognize in the owner of the land which sustained them a property coextensive with that state of things." In Amory vs. Flynn (10 Johns., New York, 102), which was an action of trover for two geese of the wild kind, but which had become so tame as to eat out of the hand, the court said: "The geese ought to have been considered as reclaimed, so as to be the subject of property. Their identity was ascertained; they were tame and gentle, and had lost the power or disposition to fly away. They had been frightened and chased by the defendant's son, with the knowledge that they belonged to the plaintiff, and the case affords no color for the inference that the geese had retained their natural liberty as wild fowl, and that the property in them had ceased." So in Goff vs. Kilts (15 Wend., 550), which was trespass for taking and destroying a swarm of bees, and the honey made by them, it appeared that the swarm left the plaintiff's hive, flew off, and went into a tree on the land of another. The plaintiff (according to the report of the case) kept the bees in sight, followed them, and marked the tree into which they entered. Two months afterwards the tree was cut down, the bees killed, and the honey found in the tree taken by the defendant and others. The plaintiff recovered judgment in the court of original jurisdiction. Upon writ of error the higher court, speaking by Mr. Justice Nelson, an eminent jurist who, at a subsequent date, became a justice of the Supreme Court of the United States, said: "Animals fierce naturce, when reclaimed by the art and power of man, 155 are the subject of a qualified property; if they return to their natural liberty and wildness, without the animus revertendi, it ceases. During the existence ot the qualified property, it is under the protection of the law the same as any other property and every invasion of it is redressed in the same manner. Bees are fierce naturce, but when hived and reclaimed a person may have a qualified property in them by the law of nature, as well as the civil law. Occupation—that is, hiving or inclosuig them—gives property in them. They are now a common species of property and an article of trade, and the wildness of their nature, by experience and practice, has become essentially subjected to the art and power of man. An unreclaimed swarm, like all other wild animals, belongs to the first occupant—in other words, to the person who first hives them; but if the swarm fly from the hive of another, his qualified property continues so long as he can keep them in sight, and possesses the power to pursue them. Under these circumstances, no one else is entitled to take them- 2 Black. Gomm., 393; 2 Kent's Gomm., 394.) The question here is not between the owner of the soil upon which the tree stood that included the swarm, and the owner of the bees; as to him the owner of the bees would not be able to regain his property, or the fruits of it, without being guilty of trespass; butitbyno means follows, from this predicament, that the right to the enjoyment of the property is lost; thatthebeesthereforebecome again fiercenaturce and belong to the first occupant. If a domestic or tame animal of one person should stray to the inclosure of another, the owner could not follow and retake it without being liable for a trespass. The absolute right of property, notwithstanding, would stillcontinue in him. Of this there can be no doubt. So, in respect to the qualified property in the bees. If it continued in the owner after they hived themselves and abode in the hollow tree, as this qualified interest is under the same protection of the law as if absolute, the like remedy existed in the case of an invasion of it. It can not, I think, be doubted thatif the property in the swarm continues while within sight of the owner—in other words, while he can distinguish and identify it in the air—that it equally belongs to him if it settles upon a branch or in the trunk ofa tree, and remains there under his observation and charge. If a stranger has no right to take the swarm in the former case, and of which there seems no question, he ought not to be permitted to take it in the latter, when it is more confined and within the control of the occupant." There is nothing to the contrary of this in Gillett vs. Mason (7 Johns. 16), cited by the learned counsel for Great Britain. In that case a 156 mere finder of bees claimed, as against one interested in the soil, the right to take them, upon the ground aloue that he had marked the tree in which the bees were found. But the court decided that he could not acquire ownership by merely marking the tree, observing that " the land was not his, nor was it in his possession." In Smith's Treatise on Personal Property, a work recently published, the law is thus stated: "Another mode of obtaining title to personal property by original acquisition, through occupancy, is by reclaiming animals wild by nature, ferce naturce. Wild animals belong to nobody in particular; yet they become the qualified property of any one who subjects them to his possession or power. The qualified property thus acquired continues in the captor while possession or control is maintained, or until the animal becomes so far domesticated that it will not voluntarily leave without the animus revertendi. When this point is reached, the qualified has ripened into absolute property, the nature of the animal being changed from fierce naturce to domitce naturce, wild to tame. Until thus changed, and while in the possession or power of the captor, his qualified property will be fully under the cognizauce and protection of law; but if the animal escape and regain-its natural freedom, without the animus revertendi, the captor's title is wholly lost, and any other person may rightfully take the fugitive, thereby acquiring the same qualified property possessed by the first captor; and so on indefinitely." After observing that tho speculations of writers who attempt to draw the dividing line between the two classes of animals, wild and tame, and referring to animals that are classed as wild, the author proceeds: "Belonging to the latter [wild] class, are, however, some of an exceptionally mild type that frequently become domesticated, and hence absolute property iu their owners; among which are deer, horses, rabbits, doves, and others of like character. Honey bees are fierce naturce; but, when reclaimed and hived, they become the subjects of qualified property. * * If bees when hived escape, or a swarm departs from the hive, the owner does not lose his property in them so long as he pursues and is able to identify them. While property in wild animals can be acquired only by occupancy, actual or constructive, an actual taking is not always necessary to create title; it is sufficient if the pursuer bring the animal within his power or control." Sec. 37. From the principles thus announced by courts and jurists, this rule, at least, may be fairly deduced as resting in sound reason, in-natural 157 justice, and in a wise public policy: That although animals fierce naturce, however valuable to the world, are not the subjects of property, while in their original condition of wildness, beyond the control of man for any purpose whatever, the law will yet recognize a right of property in them in favor of one who, by acting upon their natural instincts, and by care, watchfulness, self-denial, and industry, induces or causes them to abide for stated periods in each year, upon his premises, so that he, and he only, is in a position to deal with the race as a whole, taking its increase regularly for commercial purposes without impairing the stock. The authorities proceed upon these grounds: That " occupation," as it is called, is the foundation of property in animals fierce naturce; that the right of property is not lost when the animals are away from their accustomed habitation provided for them upon the premises of the owner, as long, as their absence is accompanied with the intention to return; and that such intention is deemed to exist while they have the habit of returning. Occupation is a fact to be determined with reference to the nature and habits of each particular race of animals. What is sufficient occupation in respect to some animals may be wholly inadequate to give a right of property in others. While each case must depend npon its own facts, there must be, in every case of animals fierce naturcei in which a right of property is assorted, such an occupation as will enable the owner or controller of the premises to which they habitually resort to establish a husbandry in respect to them—an occupation which gives, at least, such certain, continuous control of them that their increase can be regularly taken for man's use without impairing the stock. Of course, without occupation, the animus revertendi will not alone, or in itself, avail to give a right of property in wild animals. But the animus revertendi will continue a right of property acquired effectively by occupation. The intention or habit of returning to the premises of the occupier must coexist, at all times, with the fact of occupation. If that intention or habit ceases, that is, if the animals permanently depart from the promises of the owner, the rights acquired by occupation are lost, and they will become the property of the first taker. It is this liability to change in ownership resulting from the loss of control by man, to which writers refer when they speak of qualified property iu animals fierce naturce, as distinguished from that full, complete, absolute property that may be lost only by the consent, express or implied, of the owner. 158 Let us see what are the analogies between the case of these fur seals and the case of certain animals, fierce naturce, which, according to universal law, may become the subject of individual property. This mode of reasoning, although pronounced in argument to be unsafe and likely to mislead, has the sanction of experience. A very large proportion of the judicial decisions in both the United States and Great Britain rest upon the application that has been made in cases, new in their circumstances, of the principle of rules announced iu prior cases. Parke, J. in Mirehouse vs. Rennell, 8 Bingham, p. 515, declared it to be of importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of the law as a science. And Dr. Phillimore has well said that analogy has great influence on the decisions of international as well as of municipal tribunals. 1 Phillimore, § 39. Another writer declares analogy to be the instrument of the progress and development of the law. Bowyer's Readings,p. 88. If the conditions, which courts and jurists have held to be sufficient to give a right of property in certain useful animals fierce naturce, substantially exist in the cases of other wild animals, valuable to mankind, and in respect to which no.ruling has been made, then the principle of the prior cases, so far as applicable, may well be recognized and enforced in subsequent cases. In what way, according to the authorities, may property be acquired in a swarm of bees? All that need be done by man, as a condition of acquiring property in them, is to provide, on his premises, a place or hive where they may abide, to which they may come and go at will, and at which a proper proportion of their honey can be obtained from time to time. While in some couutries bees are fed, as a general rule they gather, here and there, without man's aid, all that is necessary to nourish them. The owner never puts his hand upon the swarm, or upon individual bees, though he might shut them up, from time to time, in their hive. It has never occurred to any writer or court to consider whether ownership ofthe swarm depended upontheability of theowner to identify, and prove ownership of, each individual bee. The question of property does not arise as to individual bees, but only in respect to the swarm. All that the owner need do is to provide a place for the swarm, abstain from taking all the honey made by the bees, but leaving enough to sustain them until the next year, and protect them against disturbance while in the hive. That being done, as Ion g as they occupy that hive for their abiding place, when not moving through the air, and 159 ax long as they are in the habit of returning to it, or can be pursued and identified when absent from their hive, the law gives to the owner of the premises a right of property in the swarm. Possession, in fact, of the swarm, or of the individual bees, is not otherwise necessary. Possession, in law, exists, if the swarm regularly abides in the hive so that the product can be regularly obtained for man's use. And when the swarm flies abroad the right of property is not lost as long as it can be pursued and identified, and does not establish another habitation. And this right attaches not only to the swarm that has continuously occupied the hive provided for it, but to new swarms which go out from overpopulated hives in search of another home. The latter, equally with the original swarm, remain the property of the owner of the hive, wherever they may go, as long as they can be identified and until all hope of their being recovered is abandoned. In the case of wild pigeons, what must man do that he may acquire property in them ? Nothing more than to provide- a place or box in which they can take shelter, and where they can breed and rear their young in safety. There is no possession in the owner other than that coming from his occupancy of the land, and from his ownership and control of the place provided for the use of the flock. There is no handling (as there could not be) of individual pigeons constituting the flock. But the owner holds such relations to the flock that he can regularly take its increase without diminishing the stock, so long as they continue to frequent the place provided for them. While the capacity to do that exists, the original "occupation," the foundation of the right of property, remains in full force. In the case of deer, naturally wild, all that is essential to the acquisition of property in them by man is that he provide or keep a place for . them, to which, by reason of his care, industry, and forbearance they : habitually resort, aud where they remain with such regularity under his general supervision, control, and protection that he can, without impairing the stock,- reap the benefit of the increase. In the cases cited from the English courts, it does not appear that the deer were taken into actual custody. Their owner simply built a fence around a forest of vast extent, in which the deer roamed at will. Their owner could not lay his hands upon the deer at pleasure. They could be actually taken only as other deer of the forest were taken, by shooting, or with dogs. The owners simply protected them and made a husbandry of them. Similar observations may be made in respect to geese and swans. If 160 by care and industry a place is provided for them, where they can abide in safety for the purposes of breeding, to which they habitually come, and where they are protected from disturbance, so that their increase maybe regularly taken for man's use, all is done that is required to give property iu them. While these conditions exist, the right of property remains. The instinct of a wild animal to resort, for the first time, to a particular place is not, in the case of bees, pigeons, deer, wild geese, or swans, the creation of man. But, in a substantial sense, their subsequent return to and remaining at that place from time to time, so that a husbandry can be established with respect to them, is due to the self denial, care and industry of the person who provides for them a place which he maintains and protects for their use. They do not, under the circumstances stated, become tame, within the literal meaning of that word, and so as to lose all their original wildness of nature; but, in .the eye of the law, they are so far reclaimed from their natural condition of wildness that they do not always fly from the presence of man, or escape from his dominion aud control, but, as the result of his art and industry, remain so far in his power, that their product can be utilized with the same regularity, and almost as readily, as the product- of domestic animals may be utilized. It has been said that the coming of these fur seals to the Pribilof Islands, from year to year, for the purposes already indicated, is not to be attributed to anything that the United States, as the owner of the islands, has done, or has refrained from doing. Is this true? Premising that it is not the number of things done, which determines the value of what is done, let me ask, whether the United States has done all that is necessary in order to utilize this race, without destroying it, or imperiling its existence. Would the seals continue to come to Pribilof Islands, from year to year, if, by the direction or with the assent of the United States, they were met, as they might be, at the shore of the islands, and driven back into the water? Would they remain on the islands during the breeding season except for the care taken, under regulations prescribed by the' United States, to induce them to do so, and except for the protection afforded them, while on the islands, against the pursuit of seal hunters having in view immediate profit for themselves rather than the preservation of these animals for tho benefit of mankind? These questions must receive an answer in the negative. In view of the 161 habits of the seals, and of the absolute necessity of their being upon land, for several months in each year, for purposes, at least, of breeding and of rearing their young, it cannot be doubted that the very existence of the race depends upon their being cared for and protected at the place to which they habitually resort, aud to which, when going back into the sea, they will certainly return the succeeding spring and summer. It will not do to say that these animals, if not allowed to occupy the Pribilof Islands, would seek some other breeding gronuds; for, if any change of location should ever take place, the same questions would arise between the owner of the new breeding grounds and pelagic sealers that are piesented in this case. But the possibility that these seals, if driven to that course, might seek a new location, can not be made the basis of action by this Tribunal or affect the principles involved in the question submitted for determination; for, we know that these seals, with abundant oppor- ' tunitics to select other breeding grounds, have, for more than a century past, occupied Pribilof Islands as their land home. And there is no reason to believe that they will go elsewhere, as long as the United States keeps those islands exclusively as their breeding grounds, and takes care that they are not disturbed by merciless pelagic sealers who kill withont regard to sex, and slaughter mother seals about to deliver their young withont the slightest concern on that account. The presumption is conclusive that there are no coasts, near or on the migration-route of these animals, which present the same climatic and other conditions as are found by them at Pribilof Islands. In respect to the fur seals frequenting the Pribilof Islands, what did Russia do, aud what has the United States, succeeding to its rights, done, in order to bring them within the rules of property applicable to animals fierce naturce which may be the basis of a permanent husbandry? Neither hive, box, park, nor other enclosure, has been provided for them, as in the case of bees, pigeons, and deer, respectively, because such a provision is forbidden by the nature and habits of the animals, and would be absolutely useless for any practical purpose. But an abiding place for all the purposes for which thoy must, of necessity, coiue to and remain upon land, has been provided for them. Upon the discovery by Russia of the Pribilof Islands it was ascer- I taiued that this race made it their land home. Russia desired this condition of things to continue in order that these animals might be 11492 11 162 utilized for public and commercial purposes, and to that end regulations were established restricting tho number to be taken annually for such purposes. That system has been perpetuated aud improved by the United States, with the result that the return of these seals to the Pribilof Islands, from year to year, in the same mouths, and their remaining upon the islands for stated periods, and so that a due proportion of males may be tak'en without at all disturbing the herd in its entirety, is absolutely assured, provided ouly the extermination of the race by pelagic sealing is prevented. But this is not all. We have seen that by an act of Congress, passed soon after the United States acquired Pribilof Islands, the islands of St. Paul and St. George were set apart as the land home of these animals. A place was thus provided for them where they could abide while breeding, and rearing their young, and while their coats of fur were undergoing a change. Only a limited number of persons are allowed to go to or remain on the islands. Regulations have been established preventing the herd from being unduly disturbed while there. Enormous expense has been incurred in providing vessels to guard tho breeding grounds against marauding parties engaged in seal hunting; and the Government of the United States protects the race against indiscriminate slaughter while on land. The precautions thus taken for the preservation of the herd luay sometimes have been evaded, but it is not to be doubted that if raiders were permitted, without restriction, to capture and kill these seals while on the islands, the race would be speedily exterminated as other animals of like kind have been destroyed in the waters of the Southern Ocean. Further, the United States, recognizing the value of this race of animals to itself and to commerce, forbears to impair the stock through indiscriminate killing, and not only forbids, under severe penalties, the killing of female seals, but limits the takiug on the islands each year to such a proportion of males as can safely be taken, for commercial purposes, without destroying the race. If these animals, from their nature and habits, needed an actual shelter over theuOieads while at the breeding grounds, and such a shelter was, in fact, provided for them by the United States, could human ingenuity distinguish the case, in principle, from that of other valuable animals fierce natures, in which, by the law everywhere, property may be acquired by the care aud industry of man? Instead of such shelter for their protection during storm and rain the United 163 States rjrovides them with what their natures and necessities require, namely, a laud home where, without disturbance, they breed and rear their young, aud where the safety of the race from pursuit and destruction, while at that home, is assured. All this has beeu done at great expense, and by the exercise of care and supervision.- To say that the United States, by providing upon its land a hive for a swarm of bees, or a box for a flock of pigeons, or a place for a lot of deer, in which . those animals respectively may abide while breeding and rearing their young, or for other purposes required by their nature, will become the owner of such animals as long as they have the habit of returning to the places so provided for them, whereby their product may be regularly taken for man's use, and yet that it cannot become the owner of a herd or family of fur seals born and reared upon its islands, and for which it provides a land home where they breed and rear their young, where they abide in safety, during stated periods, and to which they regularly return, so that tho increase may be taken for commercial purposes without impairing the stock, is, I submit, repugnant to sound reason and inconsistent with recognized principles in the law of property. It is said that these islands, before their discovery by Russian navigators, were the land home of these animals, and, consequently; that the seals were not provided with that home by Russia or by the United States, which succeeded to Russia's rights. Theansweris, that after such discovery the islands of St. Paul and St. George have continued, for more than a century, to be the land home of these animals only because Russia, and subsequently the United States, so ordered. If tho United States desired to establish a naval post on Pribilof Islands, or to use those islands for any other public purpose different from those for which they have been used since 1867, it could easily drive the seals back into the sea when they attempted to "haul up " on the islands during the breeding season. Such treatment might result iu the destruction of the race, as we cannot be sure from any evidence before us that any other islands would be suitable for their purposes. But no such treatment is, in fact, accorded to them. On the contrary, the islands are preserved for their use as a land home. It is as if the United States had said, upon the acquisition of the islands of St. Paul and St. George: "These valuable animals have their breeding grounds here; other animals of like kind have been exterminated by indiscriminate slaughter, or for the want of governmental protection; this race 164 shall be preserved from destruction so that mankind can get the benefit of them for food and for raiment; to that end these islands shall not, as is the case in respect to Other parts of the public domain, be subject to settlement, but shall be set apart as the habitation of these animals exclusively, where they may breed aud rear their young; and they shall be protected from molestation by seal-hunters while on the islands, and only such portion of males allowed to be taken, annually, as will not endanger the integrity of the herd as a whole." All this, it is argued by counsel for the British Government, is not equivalent to "occupation," as that word is understood in the law regulating the acquisition of property in animals ferce naturce, and is of less consequence, as a means of acquiring property in these seals, than that which is done when a hive is provided for bees, or boxes for pigeons, or a place for deer. The fact is, the case of these seals is made stronger in consequence of their peculiar nature aud habits of life; their home on American soil is a permanent home, necessary to their existence, and in respect to which they never lose the animus revertendi. Again, it has been suggested that these animals pass much of their time in the high seas, which are free to all, for purposes of food. But that is quite as immaterial as to say, in the case of bees aud pigeons, that they pass the most, or much, of their time in the open air, which is free to all. The circumstance that these fur seals go great distances from the Pribilof Islands in search of food can not affect the principle involved. Suppose they passed each day in the sea, just beyond the outer line of territorial waters, but returned each night to the islands; the question of ownership would be precisely the same, in respect to the principles governing it, as is now presented, because we know that whUe these seals go regularly, at stated periods, each year, over the same route, iuto the North Pacific Ocean, they return by the same route substantially, at the same time in each year, to their breeding grounds ou the islands of St. Paul and St. George. The length of time which they pass iu the high seas, iu search of food, is wholly immaterial, in view of the fact that they will return at a particular time to their land home. They are unlike in their habits auy other known animal that passes its time partly on land and partly in the high seas. They are not products of the sea. They can not breathe under the water. They are, in every substantial sen&e, as much appurtenant to the islands on which they are born, and where they breed and rear their young, as if they never 165 passed beyond territorial waters. Notwithstanding they frequent the sea for purposes of food, they are strictly land, rather than marine, animals, because they are conceived aud are born and reared on land, could not be conceived nor come into existence in.the waters of the -ocean, and must, from the necessities of their nature, abide upon land at stated periods. Next, it is said that some of the seals which have been on the islands of St. Paul are known to have gone the succeeding year to the island of St. George. The proof on that point is too slight and unsatisfactory to be regarded. But if the fact be as suggested, it would be wholly immaterial in the present inquiry; for both islands, taken together, are the property of one nation, and that nation only is in a position to deal with the race as a whole and save it from extermination. I have not understood learned counsel to dispute the proposition that, according to the jurisprudence of all civilized nations, some animals fierce naturce are susceptible of ownership. Nor do they insist that the principles recognized in the Roman law, and equally in England and the United States, in respect to the acquisition of property in bees, pigeons, deer, etc., do not obtain in all civilized countries. We have not been referred to any instance in which it has been otherwise declared. But it is earnestly contended that tho differences between fur seals on one side and bees, pigeons, deer, and the like, on the other side, are such as to preclude the application to the former of the rules determiuiug the acquisition of property in the latter class of animals. That all these animals are unlike in many respects no one will dispute. But this circumstance is not of legal consequence, unless the differences are such as to prevent the application of the general rule prescribing the conditions on which property may be acquired in wild animals. There are no two classes of domestic^1 animals exactly alike in their nature and habits, but there are qualities common to all such animals which justify the law not only in declaring them to be the subject of ownership by man, but in declaring that the right of property in them is not lost while they are absent •from the owner, even withont the intention of returning to his posess- sion. Now, upon what ground rests the general rule that animals fierce naturce may not become the subject of property? And why does the law recognize exceptions to that rule iu the case of some animals which admittedly belong, in their original condition, to that class? 166 The general rule that wild animals become the property of the first taker proceeds upon the ground, stated iu the Institutes of Justinian, that "natural reason gives to the first occupaut that which had no previous owner." But there are exceptions to the general rule that arise from the necessary wants of society. To the end that it maj not lose the benefit of valuable animals, exhaustible in quantity, society, in other words, the law speaking for organized society, stimulates the exercise of care, industry, and self-denial, by permitting ownership in such wild animals as can be induced to come and remain so far under human control and supervision that their product can be regularly utilized for the use of mankind without injury to the stock. And this right of property is under the protection of the law. If the law did not so declare the inevitable result would be the extermination, by waste or consumption, of many animals that the world needs and with which it would not willingly part. With respect to wild animals which by universal assent come within the exception to the general rule, the law, I repeat, has prescribed certain conditions as essential to the acquisition of property in them. These conditions all point to such occupation or control of the animals by man—the result of his care, industry, and self-denial—as indicates his capacity to reap, regularly, their product without materially diminishing the race itself. And as such conditions may all be performed in the case of bees, pigeons, deer, and the like, the law, in the interest of society, that its wants may be supplied, recognises a right of property in such animals in every case where the conditions have, in fact, been performed and can be maintained. The only quality common to all of these animals is that man by art and industry may acquire such possession and control as will enable him to render to society the useful service,.necessary to human life, of reaping from them their regular increase without destroying the stock. This benefit society cannot *nave, unless it rewards the industry and self-denial so practiced with the right of property; and, therefore, it does so reward those qualities. No man would cultivate bees and furnish the market with honey unless he was promised property in both the original and new swarms. No man would furnish a place for and "cultivate" wild geese, swans, and pigeons, unless they were protected as property, while they are temporarily out of his possession. No man would care for wild deer by enclosing the forest, watching the does when they dropped their fawns, making 167 selections for slaughter, unless he was awarded the right of property in respect to such deer. Out of this condition of things arises the rule, to which I have adverted, that whenever, by the art and industry of man, useful wild animals come so far under control that they can be and are so dealt with by him, that he may carry on this species of husbandry with them, take their whole annual product for human consumption and yet preserve the stock, he has, by universal jurisprudence, a property in them, and when he can not, or does not do this, he has no right of property. This is the true teaching of the cases and authorities to which reference has been made. The property which they recognize is that most appropriately described by Blackstone as property per industriam. Expressed in its simplest and most general form, the truth which the authorities cited enforce, is that whenever any useful thing, not already appropriated, is dependent for its existence on the art and industry of man—whenever man can truly say of a particular useful thing that it is the product of his care and labor, or would not exist without his care and labor—then he may claim that thing as his property. Do not all these conditions exist in the case of the fur-seals frequenting the Pribilof Islands? Are they not met more certainly in respect to these animals than in the case of those wild animals which the authorities uniformly declare may be appropriated by and become the property of man? Are not these fur seals, when on the Pribilof Islands, so completely iu the power of the United States that the entire herd could be taken in any one breeding season? Is it not due to the care, self-denial and supervision of the United States that these animals regularly return, at stated times, to those islands, and remain there, for such long periods, and under such circumstances, that a proper proportion of their increase can be readily taken for purposes of revenue and commerce without at all endangering the race? Must not the race perish—would it not long since have perished from the earth—except for the care and self-denial practised towards it by the United States? Is it not beyond dispute that pelagic sealing is certainly and' rapidly destructive of this race? Can this race be preserved for the world unless it is recognized as the property of that nation which, alone of all the nations, can protect it from extermination? The care and labor which the United States exerts in respect to these animals is to withdraw the Pribilof Islands from all other pos- 168 sible uses and devote them to theseseals; to guard them, at enormous expense, from outside depredation; and to refrain from taking any females, and only a due proportion of males, thereby leaving the stock unimpaired. If either one of these forms of care be withdrawn the race would be swept away with a rapidity only commensurate with the neglect. Human society can have no other interest in useful animals, bestowed for the comfort and sustenance of man, except to preserve the race so that its product may be perpetually enjoyed. If it can obtain this service from one nation only it must of necessity employ that nation and decree to it the appropriate reward. The United States is in a position to render that service. Other nations and their subjects can touch these animals on the sea alone; but they can touch them only to destroy, because the animals cannot possibly be taken on the sea, to any material extent, without speedily exterminating the race. The divine law, reason, justice, and the municipal jurisprudence of all civilized nations, and therefore, as I submit, international law, all concur in declaring that the right thus to destroy that which all mankind is interested in preserving does not exist. The suggestion has been earnestly pressed that there can be no such appropriation or occupation of these animals, as is requisite to give property, except iu respect to such of them as are captured and taken into actual, physical possession. The idea underlying this suggestion is, that there cannot be any legal possession of these fur- seals until they are confined or shut up in an inclosure of some kind. But this view entirely ignores all consideration of what, in view of the nature and habits of the particular animals, is essential to be done in order that they may come under such control that their increase may be regularly taken for use, leaving the stock unimpaired. As to some animals fierce naturce, no such result can possibly be attained unless they are effectively restrained in their liberty by actual confinement. In cases of that kind the right of property is of course lost when manual custody ceases, for the obvious reason that the increase of such animals can never be obtained for the use of man in the absence of their actual continuous confinement. When, therefore, the right of property rests, as in the case of some animals it unquestionably does, alone on actual physical custody, such right is lost when the custody cel^p. But, when continuous confinement or custody is not essential in order that the product may be regularly and certainly obtained, then such control as 169 is consistent with the nature of the animals and as will suffice to enable man to establish a husbandry in respect to them, whereby the product may be regularly secured, is all that the law requires in order to give property. Hence, in the cases of bees, pigeons, and deer, actual manual custody is not vital, but ownership and legal possession coexist when there is such control that the annual increase, by means of the owner's care and industry, can be readily taken. Whether boxing up, or fencing, or actual confinement in some mode, of animals fierce naturce, is essential, as a foundation of the right of property, must always depend upon the nature of the particular animal. Actual, continuous possession of the entire race is never necessary to accomplish the ends for which society instituted property. The fundamental inquiry, in every case, I repeat, is whether the person claiming a right of property in particular valuable animals fierce naturce has such general custody or control of the race, such capacity to deal with it as a whole, that he is capable of regularly taking their increase at the place to which they habitually, regularly resort, and which his care and industry has provided as their habitation. This inquiry is the only one at all consistent with, or that will certainly secure, those beneficial ends for the accomplishment of which the law wisely enables man to acquire, under given conditions, a property in such animals, and protects his rights in that regard, as long as he is capable of utilizing their increase for commercial purposes. Such right of property is qualified only in the sense that it may be lost by the act of the animal in leaving the premises of the owner and never returning. As illustrating their view of the question of possession, the learned counsel for GreatBritain quote this passage from thetreatiseof Pollock and Wright on Possession in the Common Law: " On the same ground trespass or theft can not at common law be committed of living animals -fierce naturce unless they are tamed 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 so confined or so powerless by reason of immaturity that they can be taken at pleasure with certainty." p. 231. But the authors add, in the next succeeding paragraphs, these significant words: " An animal once tamed or reclaimed may continue in a man's possession although it fly or run abroad at '■-will, if it is in the habit of returning regularly to a place where it is under his comple control. Such habit is commonly called animus revertendi." The same authors say: " To determine what acts will be 170 sufficient in a particular case we must attend to the circumstances, and especially to the nature of the thing dealt with, and the manner in which things of the same kind are habitually used and enjoyed. * * * Again, there is another and quite different way in which possession in law may be independent of de facto possession. We may find it convenient that a possessor shall not lose his rights merely by losing physical control,- and we may so mould the legal incidents of possession once acquired that possession iu law shall continue though there be but a shadow of real or apparent physical power, or no such poweratall. ThistheCommonLawhasboldlyandfullydone. * * * Legal possession, in our law, may continue even though the object be to common apprehension really lost or abandoned." P. 13,18. The whole subject of possession, as distinguished from ownership, is fully examined in Hunter's Roman Law. "Possession," tliat author says, "is the occupation of anything with the intention of holding it as owner," and " a thing is said to be occupied or held when the occupier is in a position to deal with it." Again, "In acquiring possession of objects not before owned or possessed by others, the question is whether the intending possessor has so far overcome the physical difficulties as to be able freely to deal with the subject." Iu reference to possession of things not before owned (res nullius) or possessed, the author says that "in such cases to acquire possession is, at the same time, to acquire ownership." Among the examples given by him are those given in the iustitutes of Justinian aud in the Commentaries of Gaius, to which reference has already been made, namely, animals fierce naturce which habitually go away and return to the place provided for them. If while they are absent the occtipier has not abandoned the intention of dealing with them to the exclusion of all other persons, so as to take their increase regularly at the places provided for them, his possession remains while they have the habit of returning. Under such circumstances, and although the animal is for a time out of the view of the occupier, the law holds that neither " occupation" nor the intention to exclude others —both of which are necessary to constitute possession—have ceased to exist. Hunter's Roman Law, 2d ed., pp. 341, 344, 345, Title Possession. Of course it is not to be disputed in this case that the United States, by what it has done and can do on the islands of St. Paul and St. George, is^n a position where it can deal with this entire race of animals so as regularly to take their increase without materially affecting its existence or integrity, nor that it has intended to appropriate or "occupy" this herd to the exclusion of all other nations or peoples. 171 Speculate as we may about some aspects of this case, or differ as we may about the weight of evideuoe upon some points, this is absolutely certain: If the United States had actual manual custody of each of these animals, at all times in the year, it could not properly deal with them in any other mode than that pursued by it, namely, to take only such part of the males each year as will leave the race or herd unimpaired in its entirety for the use of man. And they can not possibly be dealt with in that manner, and with such results, except by the United States or its licensees, or at any other place than at the breeding grounds on its islands. All this is so clearly established that no one, having the slightest regard for the evidence, will assert the contrary. I have referred to the self-denial practiced by the United States in restricting the taking of seals at the Pribilof Islands to males of proper age and in such limited numbers as will not cause a substantial impairment of the stock. The Government of that country, let me repeat, has the power, if it chooses to exercise it, of taking in any one year such an undue proportion of the seals, male and female, which frequent its islands as would give the United States an immediate profit of large amount. Its power over the seals while on the islands is so absolute that, as counsel suggest, it could practically exterminate the race almost at one stroke. But it recognizes a moral obligation resting upon it to preserve, not to destroy, a race of animals useful to the world. In order that the species may be preserved for itself and for mankind it abstains from sacrificing the race for the sake of temporary or present profit. This abstinence is industry under another name. And this principle of abstinence, or saving, is recognized by all writers upon economic questions as a potent agency in the creation of wealth and in the progress of the world. John Stuart Mill, in his Principles of Economy, has said that "as the wages of the laborer is the remuneration of labor, so the profits of the capitalists are properly the remuneration of abstinence." Vol. 2, p. 484. A recent writer.upon the ethics of usury and interest has said: "On the hypothesis that all have equal opportunities of social progress, the social destroyers of its wealth deserve condemnation, while those who have served the cause of progress by saving from personal consumption a part of the earth's produce aud devoting it to the improvement of national mechanism have a claim to an award proportioned to their service and to the efforts which they have made in rendering it. These 172 are the conditions of advance in civilization in the arts and sciences, in literature, and religion. For command over nature differentiates the civilized man from the savage. * * * It appears, hence, how accurate is the common phrase which calls thrift 'saving.' Economists favor such other words as 'abstinence,' deferred 'enjoyment,' and the like; but to 'save' expresses the primary idea that something has been saved from the destruction to which mere animal instinct would devote it. In such salvage lies the progress of the human species from savagery to godhead. By how much has been thus saved has the salvation, material, mental, and moral, of the race been achieved." Bliss- ard's Ethics and Usury, 1892, p. 26 et seq. "The origin of all capital," says another writer, "is abstinence, and the reward of this abstinence is profit." Perry's Introduction to Political Economy, p. 115. If it be said that a difficulty in the way of awarding to the United States a right of property in these seals is the impossibility of identifying any particular body of seals as frequenting or habitually resorting to the Pribilof Islands, the answer is that no such description of the situation is justified by the evidence before us. It may be that here and there, in the greatocean separating the American and Asiaticcoasts may be found stray, scattered fur seals, of which it might be difficult to say, while they are in the water, and not immediately under the eye, that they belong to a particular herd of northern fur seals; just as it would be difficult to identify a wild pigeon as belonging to a particular flock, or individual bees as belongiug to a particular swarm hived at a named place. But such facts can not affect the principle involved in such cases. The evidence is overwhelming that the migratory routes of the northern fur seals frequenting the islands on the Asiatic and Japan coasts are separated by more than 800 miles from the migration routes of the fur seals habitually resorting to Bering Sea and frequenting the Pribilof Islands. There is no appreciable intermingling of the Pribilof seals with other fur seals of the same general species. H there are any exceptions to this rule they are so rare and relate to so few seals as to be of no consequence in the inquiry whether the fur seals frequenting or habituallyresorting to the Pribilof Islands do not constitute, substantially, a collective body or herd separate and distinct from every other herd of the same species. That they do constitute a separate and distinct herd is so clearly established that a statement to the contrary might well cause surprise to any one at all familiar with the evidence submitted to us, or who is able to consider it without regard to special 173 interests depending upon the action of this Tribunal. The treaty identifies the herd to which regulations are to apply by the fact of their habitually resorting to the waters and islands of Bering Sea. If the award so describes them there will be no uncertainty in the decree. National legislatures and courts will find no difficulty in following the award, either in making laws or in applying them to the proper seals. The only possible objection that can be urged against the claim of ownership of these fur seal animals by the United States is the general rule that animals fierce naturce are not subject to individual ownership. But we have seen that, according to settled principles of law, an exceptiou to this rule has been handed down to us, and is everywhere recognized, which admits of individual ownership of J useful wild animals, the supply of which is limited, and which, by reason of their nature and habits, and the control or power which man may acquire over them, are susceptible of ownership, that is, are : capable of exclusive appropriation. All of these conditions are ful- ' filled in the case of the Pribilof fur seals. It is not denied that they are useful animals, or that the supply is limited. The experience of the past proves that the race can be easily exterminated if man is tallowed to hunt and slaughter them wherever they may be fouud, on the land or in the high seas. It is equally beyond dispute that they may be exclusively appropriated, because they come, at stated periods, to the islands of the United States, where they remain under such control that the increase can be obtained for the benefit of the world with- £6ut auy injurious diminution of the stock. The reason why the doctrines to which I have adverted, have been taught more directly and fully in municipal jurisprudence is that questions of property more frequently arise between individuals. Nations do not often engage in judicial controversy with each other upon questions of this character. But there are some things which from their situation are susceptible only of national ownership. These have been considered by writers upon international law, and where the same grounds and reasons exist for the recognition of property, as between nations, that are found in the cases determined by concurring municipal law, they have conceded national ownership. Illustrations of this rule are the cases of pearl and other oyster beds, coral reefs, etc., situated ou the sea outside of territorial waters, in some instances thirty or more miles. These gifts of nature are exhaustible, and would be soon exhausted if treated as res nullius, and left open to the indiscrimi- 174 nate enjoyment of the people of all nations. They cannot well be enjoyed unless they are under particular control, so that the product may be taken at the right season and in limited amounts. In other words, they require that sort of care, restraint, and self-denial which is induced only by a recognition of property in those who bestow such care, aud practice such restraint and self-denial. I am relieved from the necessity of showing that these things, even when beyond territorial waters, maybe appropriated as property by the nations in whose neighborhood they he, and who choose to exercise the restraint and control required for their preservation; for, the opinions of great writers upon international law are explicit and concurring to that effect. And Great Britian in its counter case and by its counsel in argument, distinctly admit that they are the subject of property. Great Britian, in its Counter Case, referring to the legislation affecting the pearl fisheries of Ceylon, says that "the claim of Ceylon is not to an exceptional extent of water forming part of the high seas as incidental to the territorial sovereignty of the island, but is a claim to the products of certain submerged xiortions of the land, which have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction." The counsel for the British Government, enforcing the theory that international law recognizes the right of a state to acquire the soil under the sea, and consequently the products attached to it, and referring to theCeylon and other fisheries, say that this claim "may be legitimately made to oyster beds, pearl fisheries, and coral reefs." But looking at the grounds upon which property in pearl and other oyster beds, coral reefs, and the like, rest, it immediately appears that those things are incapable of occupation or possession in the ordinary sense of those words. That they are attached to the soil under the sea is not, it seems to me, at all controlling in the inquiry as to property. No such reason is assigned by the writers upon international law. What they do say on the subject has reference to social utility and to the right of the nation, near whose territory, these things are found, to enjoy the advantages of its peculiar relation to them. Such things are exhaustible; there is not enough for all; if left open to indiscriminate and unregulated attack they would be destroyed; whereby a particular nation would be injured. Puffendorf says: "As for fishing, though it hath much more abundant subject in the sea than in lakes or rivers, yet 'tis manifest that it may in part be exhausted, and that if all nations should desire such right and liberty near the coast of any particular country, that country 175 must bo very much prejudiced in this respect; especially since 'tis very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case, there is no reason why the borderers should not rather challenge to themselves this happiness of a wealthy shore or sea than those who are sealed at a distance from it." Law of Nature and Nations, Bk. 4, Chap. 5, Sec. 7. Vattel, upon the same general subject: "The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, etc. Now, in all these respects, its use is not inexhaustible; wherefore the nation to whom the coasts belong may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahren and Ceylon may lawfully become property? And, though, where the catching of fish is the only object, the fishery appears less liable to be exhausted; yet, if a nation have on their coast a particular fishery of a profitable nature, aud of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighboring nations?" Again: "A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a ■ second reason for which governments extend their dominion over tho sea along their coast as far as they are able to protect their right." Law of Nations, Bk. II, Chap. 23, Sees. 217, 288. This passage from Vattel is quoted by Sir Travers Twiss, who says: "The usus of all parts of the open Sea in respect to navigation is common to all nations, but the firuetus is distinguishable in law from the usus, and in respect of fish, or zoophites, or fossil substances, may belong in certain parts exclusively to an" individual nation." Ch. XI, Sec. 191. The essential grounds upon which the doctrine is placed in these extracts is precisely that upon which the similar decisions have been made in the instances from municipal law of bees, pigeons, and the like. It is that these properties would be destroyed and lost unless they 176 were protected by that care, industry, and self-denial which can be called into activity only by the reasons which the institution of property offers. It is because the neighboring nations and none others can exercise these qualities and thus perform the service of preservation. It is because they fall under the general proposition that where any useful thing is dependent for its existence upon the care and self-denial of particular men, those men have a property in the thing. That the United States, by its ownership of Pribilof Islands, is in a condition to reap the benefit of these animals, and preserve the race, and that no other nation, by any action it may alone take, can accomplish these beneficial results, and that the preservation of the race does not admit of their being taken at any other place than at their breeding grounds, are conclusive reasons why the law should recognize its claim of property. Blackstono, observing that there are things iu which a permanent property may subsist, but which would be found without a proprietor had not the wisdom of the law provided a remedy to obviate this inconvenience, says that "the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner." Chapter on Property. Sir Henry Maine, in his Treatise on Ancient Law, eh. 8, p. 249, thus states the principle: "It is only when the rights of property gained a sanction from long practical inviolability, and when the vast majority of objects of employment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion oyer commodities over which no prior proprietorship has been asserted. The sentiment iu which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginning of civilization. The true basis seems to be not a distinctive bias'to wards the institution of property, but a presumption, arising out of the long continuance of that institution, that everything aught to have cm owner. When possession is taken of a 'res nullius,' that is, of an object, which is not, or has never been, reduced to doiniuion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the rights of property, except the occupant. The occupant, in short, 177 becomes the owner because all things are presumed to be somebody's property, and because no one can be pointed out as having better right than he to the proprietorship of this particular thing." Of course, as we have seen from the authorities cited, the possession of which the learned writer speaks, is not necessarily actual manual possession, continuously held, which in many cases is impracticable, but that possession in law, that general control, which may exist, although the thing possessed is temporarily absent from its owner with the animus rever tendi. So, Mr. Bowyer, in his Commentaries on the Constitutional Law of England, 2d Ed., London, 1846, p. 427: "III. The third primary right of the citizen is that of property, which consists in the free use, enjoyment, and disposal of all that is his, without any control or diminution, save by the law of the land. The institution of property—that is to say, the appropriation to particular persons and uses of things which were given by God to all mankind—is of natural law. The reason of this" is not difficult to discover, for the increase of mankind must soon have rendered community of goods exceedingly inconvenient or impossible consistently with the peace of society; and, indeed, by far the greater number of things cannot be made fully subservient to the use of mankind iu the most beneficial manner unless they be governed by the laws of exclusive appropriation." The suggestion has been much pressed that the authorities cited in support of the claims of property by the United States refer to animals ferce naturce that have been either tamed or reclaimed by the art or industry of man. And it was said that these fur seals are neither tamed nor reclaimed. But upon careful attention to the reasons assigned by courts and writers for the recognition of property, under given circumstances, in bees, pigeons, deer, wild geese, and swans, it will become manifest that there was no purpose to declare in respect to any of these animals that they had lost all of their original wildness. Some wild animals may be so tamed, or become so subdued by the treatment accorded to them or by the circumstances attending I their situation, as to exhibit very little timidity or shyness in the. presence of man. Other animals, usually called wild, but not gentle in their nature, are more difficult to approach. Still others retain, under all circumstances, so much of their original wildness, and so much of their innate fear of man, that it is impossible to handle them as can often be' done in the case of some strictly domestic animals. When, 11492 12 178 therefore, the authorities speak of bees, pigeons, deer, wild geese, and swans, as tamed or reclaimed, they mean, and could mean only, that their original wildness had, by the art and power of man become so far dimished, modified, or controlled, that man is able to establish ahus- bandry iu respect to them, and obtain the benefit of their increase without impairing therace. If animals, originally wild, come under the power and control of man to such an extent that they can be thus "cultivated" and utilized; if such power cau be acquired over them that man is able, to use the words of Bacon, to apply them " to the susten- tation of his being," then they are "reclaimed" within the meaning of the authorities that recognize a right of property, under named'condi- tions, iu animals ferce naturce. Are not these fur seals in every substantial sense, so far ''reclaimed" from their original wildness that they can be utilized by man, with quite as much ease as if they were strictly domestic animals? They are peculiarly gentle and docile, and easily approached, although they can be so alarmed as to fear the approach of man. Wlnle on their breeding grounds, protected against indiscriminate slaughter at the hands of seal hunters, they are as completely within the control and power of the United States as if they were so many horses, cows, or sheep. And they remain there, for several months in every year, under the power and control of man, without any disposition, under ordinary circumstances, to flee from, or eveu to become disturbed by his presence. There is, consequently, every reason why in the interests of society, that its increasing wants may be supplied, they should be regarded, for all purposes of property, as reclaimed animals. In the course of the argument the question was often propounded whether a recognition of the claim of the United States to own this herd of seals would not seriously impair the right which, by universal consent, belongs equally to all, to take and appropriate to their own use such wild animals as have not been previously appropriated by actual confinement, or by some other mode that deprives them of their natural liberty. To this it may be answered, that the principle which I have maintained has no application to those useful animals in respect to which the care, industry, and labor of man is ineffectual or unnecessary to utilize their increase, while preserving the stock. Some of them cannot be brought within the reach or efforts of man; some have not the sure instinct of retiMiing to the same place so that they can be identified; and in respect to others, nature has made such liberal provision for the needs of mankind, and for such an enor- 179 mous increase in the number of the animals, that there is no occasion for a recognition of property, either as a reward of man's industry or for the presevation of the race. A recognition in favor of the United States of property iu the Pribilof herd of seals does not by any means place all wild animals in the same category. The conditions which exist in the case of those, wild animals which are admittedly subjects of appropriation as property do not exist in the case of all animals fierce naturce. And we need only inquire whether those conditions exist in the case of these fur-seals. If they do, our duty is to apply the principle which those conditions suggest, whatever may be the difficulty of applying it in the case of some wild animals to which counsel have referred in argument. It is scarcely necessary to say that these principles, in the judgment of some courts, have no application to noxious animals, that can subserve no useful purpose and may be dangerous to the community, except, perhaps, when they are actually confined 'and are kept for amusement or for scientific purposes. An illustration of this distinction is found in Hannan vs. Mockett decided by the court of King's Bench, and reported in 2 Barn. & Cress., pp. 934, 937-8,943-4, 38, 43, 44. The declaration in that case stated that the plaintiff was possessed of a close of land with trees growing thereon, to which rooks had been used to resort and build their nests and rear their young by reason whereof he had been used to kill aud take the rooks and the young thereof, from which great profit and advantage had accrued to him; yet the defendant, wrongfully and maliciously, intending to injure the plaintiff and alarm and drive away the rooks, and to cause them to forsake the trees of the plaintiff, wrongfully and injuriously caused guns loaded with gunpowder to be discharged near the plaintiff's close and thereby disturbed and drove away the rooks, in consequence of which the plaintiff was prevented from killing the rooks and taking the young thereof. The plea was not guilty. Bayley,. J., said: "The plaintiff does not state any special right in him to have the rooks resort to his trees; he relies upon that general right which all the King's subjects have, and he describes the profit to arise to him, not from the eggs, but from killing the birds and their young. To maintain an action the plaintiff must have had a right, and the defendant must have.done a wrong. A man's rights are the rights of personal liberty, persoual security, and j>rivate property. Private property is either property in possession, property in action, or property that an individual has a special right to acquire. The injury in this case does 180 not affect any right of personal security or personal liberty, nor any property in possession or in action; and the question then is, whether there is any injury to any property the plaintiff had a special right to acquire. A man in trade has a right in his fair chances of profit, and he gives up time and capital to obtain it. It is for the good of the public that he should. But has it ever been held that a man has a right in the chance of obtaining animals fierce naturce, where he is at no expense in enticing them to his premises, and where it may be at least questionable whether they will be of any service to him, and whether, indeed, they will not be a nuisance to the neighborhood? This is not a claim propter impotentiam, because they are young, propter solum, because they are on the plaintiff's land, or propter industriam, because the plaintiff has brought them to the place or reclaimed them, but propter usum et consuetudenem of the birds. They, of their own choice, and without any expenditure or trouble on his part, have a predilection for his trees and are disposed to resort to them. But has he a legal right to insist that they shall be permitted to do so? Allow the right as to these birds and how can it be denied as to all others? In considering a claim of this kind the nature and properties of the birds are not immaterial. The law makes a distinction between animals fitted for food and those which are not; between those which are destructive to private property and those which are not; between those which have received protection by common law or by statute and those which have not. It is not alleged in this declaration that these rooks were fit for food; and we know in fact that they are not generally so used. So far from being protected by law they have beeu looked upon by the legislature as destructive in their nature, and as nuisances to the neighborhood where they are. That being so, surely a party can have no right to have them resort to his lands, to the injury of his neighbors; and, consequently, no action can be maintainable against a person who prevents their so doing. * * * .They certainly answer the description of animals fierce naturce. They are not protected by any statute, but on the contrary have been declared by the legislature to be a nuisance to the neighborhood where they are. That being so, it is quite clear no person can claim a right to have them resort to his lands, nor'can any person become a wrongdoer by preventing their so doing. Keeble y. Hialceringill bears a stronger resemblance to the present than any other case, but it is aistinguishable. There it was decid ed that an action on the case lies for discharging guns near the decoy 181 pond of another, with design to damnify the owner by frightening away the wild fowl resorting thereto, by which the wild fowl are frightened away and the owner damnified. But in the first place it is observable that wild fowl are protected by the statute (25 H. 8. cii.): that they constitute a known article of food, and that a person keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a profitable mode of employing his land, aud-was considered by Lord Holt as a description of trade. That case, therefore, stands ou a different foundation from this. All the other instances which were referred to in the argument on the part of the plaintiff, are cases of animals specially protected by acts of Parliament, or which are clearly the subject of property. Thus hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teals, widgeons, wild geese, black game, red game, bustards, and herons are all recognized by different statutes as entitled to protection, and consequently, in the eye of the law, are fit to be preserved. Bees are property, and are the subject of larceny. Fisheries are totally different. The fish can do no harm to anyone and constitute a well-known article of food. Upon the ground, therefore, that the plaintiff had no property in these rooks, that, they are birds fierce naturce, destructive in their habits, and not protected either by common law or by statute, and that the plaintiff is at no expense with regard to them, we are of opinion that the plaintiff had no right to insist upon having them in his neighborhood and that he can not maintain this action." The case of Keeble v. Hicheringill (11 East, 574), above referred to, illustrates the rule in respect to animals ferae naturae that are useful. That was an action on the case. The plaintiff was the owner of a decoy pond to which wild fowl used to resort. At his own costs and charges, he prepared aud procured divers decoy ducks, nets, machines, and other appliances for the decoying and taking of wild fowl, and enjoyed the benefits in taking them. The defendant, knowing these facts, and intending to injure the plaintiff in his yivary, and to Ifright and drive away the wild fowl, used to resort thither, and to deprive him of his profit, frequently discharged loaded guns at the head of the pond and vivary, whereby he drove away the wild fowl then in the poud. There was a verdict for the plaintiff. Chief Justice Holt said: " I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. k3?or, first, this using or making a decoy is lawful; secondly, this 182 employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may enjoy it for his pleasure and profit, as for alluring and procuring ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; bat it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind as to kill and destroy wild fowl or tame cattle. Then, when a man useth his art or his skill to take them to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable for an action for so hindering him. # # # # # * # " And when we do know that of long time in the Kingdom these artificial contrivances of decoy ponds and decoy ducks have been used for enticing into these ponds wild fowl in order to be taken for the profit of the owner of the pond, who is at the expense of servants, engines, and other management, whereby the markets of the nation may be furnished, there is great reason to give encouragement thereunto, that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefits and have their action. But, in short, that which is the true reason is that this action is not brought to recover damage for the loss of the fowl, but for the disturbance." In the report of the same case in (11 Modern, 75), the Chief Justice says: "Suppose the defendant had shot in his own ground; if he had occasion to shoot it would be one thing, but to shoot on purpose to damage the plaintiff is another thing and a wrong." The two cases last cited are alike in that in each the plaintiff sought to recover damages for 1 malicious injury to an alleged industry. In Hannam vs. Mockett, the alleged industry was based upon what the plaintiff had done to secure the coming of the rooks to his lands. But as these animals were fierce naturce and were held not to be useful, the plaintiff had no property in them which could be the basis of an industry that the law would protect against such acts as those complained of. In Keeble vs. Hickeringill, although the action was not brought to recover damages for the loss of the ducks frightened away from the plaintiff's land by the defendant, its foundation was. necessarily, that the ducks, although fierce naturce, were useful, and could be the basis of an industry which the law could protect against the wrongful acts of others to the injury of the person who owned the place to which, by his care, they habitually resorted. 183 It was suggested in argument that if the claim of the United States to own the Pribilof fur seals be sustained, the result would be to establish a monopoly in its favor, by excluding the citizens and subjects of other nations from engaging in the business of taking seals in the open waters of the sea. But surely this can not constitute any reason whytheclaimshouldnotbesustainedifitbe well founded in law. Such an objection could be made to property in anything; for all property is monopoly. The world has no interest in permitting the destruction of a race of animals bestowed for the well-being and subsistence of mankind. It so happens that the United States, by its ownership of the Pribilof Islands, is in a situation to care for and preserve these seals for the benefit of the world aud to furnish the means of government while taking the annual increase, which ultimately goes into commerce. If its claim be denied, and pelagic sealers are unrestrained in the taking of these animals in the open seas in the destructive mode practiced by them, the species will soon be exterminated. It is idle to say that the existence of these fur seals can possibly be secured, if pelagic sealing to any material or profitable extent is permitted in Bering Sea, or in any part of the North Pacific Ocean where they may be found while on their way back to their home on the Pribilof Islands. H, therefore, pelagic sealing is suppressed and the taking of these seals is restricted to their breeding grouuds, where alone it is possible to make a discrimination as to the sex of the animals and as to the number killed for use, the result will be the preservation of the race to the world. The object of the treaty under which we are proceeding was, as the learned Attorney-General of Great Britain conceded in argument, to secure these fur seals against extermination, without reference to any special interests possessed either by the United States or by.pelagic sealers. And as they may be preserved by the United States, under the regulations it has established for the taking of male seals at their breeding grounds, and cannot be preserved at all if unrestrained pelagic sealing continues, that fact is of conclusive weight in determining whether the right of property in them should be awarded to the United States; for, according to all the authorities, a right of property in animals fierce naturce depends upon the capacity of the party asserting such a right, exclusively to take the increase of.such animals from time to time without destroying or impairing the stock. II, therefore, an award of property in favor of the United States will give that country, practically, a monopoly in the business of taking these fur seals for use, it will be a monopoly which all civilized nations are interested in fostering. When a monopoly in 184 a particular nation is the only or the best mode of preserving to man a gift of nature, then the world is not interested in breaking it down in order simply that a few, whose methods of utilizing that gift will surely destroy it, may realize slight temporary gain. The nations do not begrudge the enjoyment by Great Britain and some of its colonies of a monopoly in pearl and other fisheries off their respective coasts, far out in the open sea beyond territorial waters. And so of the coral in which France and Italy are interested, and of the fisheries on which the prosperity of Norway so much depends. This case, then, although new in its special circumstances, because relating to animals which, in many respects, are unlike all other known animals, is not, to use the words of Chief Justice Holt, new in the reason or principles of it. Bringing together the principal facts, and the conclusions arising from them, the case presented by the United States, and upon which it asks a judgment at the hands of this Tribunal sustaining its claim to own these seals, not only while they are at their breeding grounds, but when temporarily absent therefrom in the high seas in quest of food, is as follows: (a) This race of auimals is exhaustible in number and is valuable for purposes of raiment and food. They are not a product of the sea, for they are conceived on land, can not be conceived in the ocean, and must, of necessity, come into existence, and for a considerable part of each year abide, upon land. (b) When away from their land home it is for temporary purposes, and with the absolute certainty that, unless waylaid and killed by pelagic sealers, while they are beyond territorial waters, they will return to that home at a particular time, and remain there for several months, in every year, during which a proper proportion of their increase can be readily taken, leaving the herd unimpaired in its integrity. (c) The land on which they wereboru—the islands of St. Paul and St. George—became the property of the United States in 1867, and has been maintained for more than a century, first, by Russia, and afterwards by the United States, exclusively as the habitation of this race, to which they could resort, in safety, and to which for a period so long that the memory of man runneth not to the contrary, they have regularly resorted, for the purpose of breeding and reariug their young, and of renewing their coats of fur. (d) While on the islands, during the breeding season, they are protected 185 at great expense against indiscriminate slaughter by raiders and seal- hunters In addition, and that they may not be unduly disturbed while on the breeding grounds, the United States excludes all persons from the islands of St. Paul and St. George, except such as are required in connection with the industry there conducted under its authority or license—that industry being the taking, for purposes of revenue arid commerce, such proportion of males as can be safely taken without impairing the stock, and forbidding the killing of all female seals. (e) On the islands of St. Paul aud St. George, during the season, and at"no other place, nor at any other time, can discrimination be made in respect to the sex of seals taken for use. Such discrimination is impossible when the seals are taken in the ocean. (/) The taking of these seals in thehigh seas to any extent that isprofit- able to those engaged in it involves the very existence of the race, because the killing by pelagic hunters of seals heavy with young, or suckling mothers, or impregnated females, will inevitably result in the speedy extermination of the race. (g) So that the taking of these animals at the breeding grounds for commercial purposes, under regulations that enable a proper proportion of males to be taken for use, and the killing of them in the open waters of the ocean, where no discrimination as to sex is possible, is the difference between preserving the race for the benefit of the world and its speedy extermination for the benefit of a few Canadian and American sealers prosecuting a business so barbarous in its methods that President Harrison fitly characterized it as a crime against nature. (h) The coming of these animals from year to year to the Pribilot Islands and their abiding there, so that their increase can be taken for man's use withoutimpairing the stock, being due entirely to the care and supervision of the United States, if that care, industry, and supervision be omitted or withdrawn, the speedy destruction of the race will certainly follow. The same result will inevitably follow if pelagic sealing be recognized as a right under international law, to be restrained, if at all, or effectually, only by a convention to which all the great maritime nations of the earth are parties—a convention which all know could never be obtained; and which, if possible to be obtained under any circumstances, could not be had until-its object, the.preservation of these animals for the use of the world had been defeated in the meantime by the extermination of the race. (i) On the other hand, a recognition of the right of property asserted 186 by tho United States in these animals would secure, beyond all question, the preservation of these animals. Natural justice, right reason, and the interests of mankind, demand that this recognition be given by this Tribunal; for the United States, alone of all the nations, holds such relations to these animals, that it can preserve the race from extermination while utilizing it for the purposes for which it was bestowed upon man. No possible harm, but only good, can come from a judgment to that effect. Such a judgment will declare that the law of nations is adequate to preserve valuable animals whose existence is endangered by the acts of a few who seek temporary profit for themselves in the extermination of the race. For the reasons stated, I am of opinion that these fur seals, conceived, born, and reared on the islands of St. Paul and St. George, belonging to the United States, are, when found in the high seas on their way back to their land home and breeding grounds oh those islands, the property of the United States, and that this right of property is qualified only in the sense that it will cease, when, but not before, they cease to have the habit of returning to the Pribilof Islands after their customary migration into the open waters of Bering Sea and the North Pacific Ocean. If the claim of the United States to own these fur seals rests, in law, upon a sound foundation, the next inquiry is whether it may protect its property? There can be but one answer to this question. Manifestly it would have the same authority to protect its property that an individual has for the protection of his property. The United States may, to that end, employ any means which the law, under the bike circumstances, permits to an individual for the protection of his property. No one questions its right to afford protection, to that extent, while the seals are on its islands, and while they are within territorial waters. That right—if the United States owns the seals—is not lost while they are tempOrarilly absent in the high seas, beyond territorial waters; for, they are rightfully in the high seas, and the United States is rightfully present wherever its ships may be in the high seas. It is scarcely necessary to cite authorities in support of this position. The Attorney-General of Great Britain concedes that "if the fur seal is to be treated as an article of property, there is the right to defend it on the high seas if attacked"—"the ordinary right of defense of pos. session which belongs to an individual owner of property." 187 But does the right of the United States to protect this race of animals from extermination by pelagic hunters depend upon its ownership of the herd, while the seals are beyond jurisdictional limits in the high seas? Does that country have such special pecuniary interest in the preservation of the race that it may, consistently with the law of nations and independently of any right of property in the herd itself, iutei'pose, if need be by force, to prevent their wanton destruction while absent from the Pribilof Islands? I say wanton destruction, because no one can for a moment doubt that pelagic sealing, if it continues to the extent practiced within the past five years, will soon exterminate this race. The principal facts upon which the United States rests the contention that, independently of property in this herd of seals, it may use such means as are necessary to prevent the destruction of the race by pelagic sealers, are summarized in the following extracts from the printed argument of the counsel of the United States: "Here is a herd of amphibious animals, half human in their intelligence, valuable to mankind, almost the last of their species, which from time immemorial have established their home with a constant animus revertendi on islands once so remote from the footsteps of man that these, their only denizens, might reasonably have been expected to be permitted to exist and to continue the usefulness for which the beneficence of the Creator designed them. Upon these islands their young- are begotten, brought forth, nurtured during the early months of their lives, the land being absolutely necessary to these processes and no other land having ever been sought by them, if any other is, in fact, available, which is gravely to be doubted. "The Russian and United States Governments, successively proprietors of the islands, have by wise and careful supervision cherished and protected this herd, and- have built up from its product a permanent business and industry valuable to themselves and to the world, and a large source of public revenue, and which at the same time preserves the animals from extinction or from any interference inconsistent with the dictate's of humanity. "It is now proposed by individual citizens of another country to lie in wait for these animals on the adjacent sea during the season of reproduction, and to destroy the pregnant females on their way to the islands, the nursing mothers after delivery while temporarily off the islands in pursuit of food, and thereby the young left there to starve after the 188 mothers have been slaughtered; the unavoidable result being the extermination of the whole race and the destructiou of the valuable interests therein of the United States Government and of mankind; and the only object being the small, uncertain, and temporary profits to be derived while the process of destruction lasts, by the individuals concerned. "And it is this conduct, inhuman and barbarous beyond the power of description, criminal by the laws of the United States and of every civilized country so far as its municipal jurisdiction extends, in respect to any wild animal useful to man or even miuistering to his harmless pleasure, that is itisisted upon as a part of the sacred rights of the freedom of the sea, which no nation can repress or defend against, whatever its necessity. Can anything be added to the statement of this proposition that is necessary to its refutation? "What precedent for it, ever tolerated by any nation of the earth, is produced? From what writer, judge, jurist, or treaty is authority to be derived for the assertion that the high sea is or ever has been free for such conduct as this, or that any such construction was ever before given to the terms 'freedom of the sea' as to throw it open to the destruction, for the profit of individuals, of valuable national interests of any description whatever?" The general proposition deduced from these statements is, that no individual can be said to have a right, under international law, to exterminate a race of valuable animals, for the sake simply of the temporary profit realized from such practices while the process of destruction goes on; consequently, it is argued, the United States may, upon the principles of self-protection or self-preservation, employ, even upon the high seas, such force as is necessary to prevent that destruction and thereby protect the industry which is maintained on its islands for jmrposes of revenue and commerce as well as for the comfort and maintenance of the native inhabitants of those islands—the existence of which industry depends absolutely upon the existence of this race of animals. This proposition is disputed by Her Britannic Majesty, who insists, by counsel, that her subjects, unless forbidden by the laws of Great Britain, or by some treaty or couvention to which that country is a party,,are entitled under the law of nations to capture aud kill for use or profit, any animals, however valuable, found in the high seas; that this rigat does not depend in the slightest degree upon the inquiry wheffler the particular methods employed in capturing and 189 ^killing the animals are or are not barbarous, or whether the prosecution of the business will or will not result in the speedy extermination of the'race, or in the destruction of the fur seal industry maintained by, or under the authority of, the United States on its islands; and that any interference whatever by other nations with the exercise of this right by British subjects is forbidden by tho doctrine of the freedom of the seas as recognized by international law. In respect to that branch of the general proposition advanced by the United States which assumes that pelagic sealing, conducted according to the destructive methods and to the extent now practiced, involves the speedy extermination of the race, and, consequently, the destruction of the fur seal industry established on the Pribilof Islands, I do not care to add anything to what has already been said by me; for it can not be disputed, under the evidence, that such results will speedily follow from unrestrained pelagic sealing. But is it not equally clear that the subjects of Her Britannic Majesty are not entitled, of right, under the law of nations, thus to exterminate a race of useful animals? Certainly no such right is recognized in the muuicipal law of any civilized country, much less in the law of nations which, all writers agree, rests primarily upon those principles of natural justice aud morality, aud those distinctions between right and wrong which, in the words of Cicero, are "congenial to the feelings of nature, diffused among all men, uniform, eternal, commanding us to our duty, .prohibiting every violation of it—one eternal and immortal law, which can neither be repealed nor derogated from, addressing itself to all nations and all ages, deriving its authority from the common Sovereign of the universe, seeking no other lawgiver and interpreter, carrying home its sanctions to every breast, by the inevitable punishment He inflicts on its transgressors." There is fair room for discussion as to whether the annihilation of this race of useful animals by individuals or associations of individuals, while such animals are in the high seas, can be legally prevented in any other mode than by a treaty or convention that will control equally the citizens or subjects of all nations. But the mind instantly recoils from the suggestion that such practices are in the exercise of' a right protected by the law of nations, and must be submitted to by the United States, however injurious they may be to its material interests. A declaration by this Tribunal, in express words, or by the necessary effect of its award, that the destruction, from mere wantonness, of useful ani- 1II 190 mals, is in the exercise of a right secured or protected, by the law of nations, would shock the moral sense of mankind. But, in principle, there can be no difference between the destruction from mere wantonness of these useful animals, and their destruction, for temporary gain, by methods that are inhuman and barbarous, and which will surely result in the speedy extermination of the entire race, thereby defeating the beneficent purposes for which they have been bestowed by the Creator upon man. If it be said that these animals are given to mankind for their use, and that the taking of them in the high seas is only one mode of utilizing them,the answer is, that the obligations arising from the relations which men and states miist sustain to each other forbid any mode of taking them that is plainly incompatible with the existence of the race, and, therefore, destructive of such use. Paley says that from reason or revelation, or from both together, " it appears to be God Almighty's intention that the productions of the earth should be applied to the sustentation of humanlife;" and, "consequently, all waste and misapplication of these productions is contrary to the divine intention and will, and therefore wrong, for the same reasons that any other crime is so." Among- tho illustrations given by the author of such wrongs or crimes is the " diminishing the breed of animals by wanton or improvident consumption of the young, as of the spawn of shellfish or the fry of salmon, by the use of unlawful nets or at improper seasons." Paley's Moral Philosophy, c. XI. Ahrens, in his Course of Natural Law, states, as the result of rational principles to which the right of property and its exercise are subjected, " that property exists for a rational purpose and for a rational use; it is destined to satisfy the various needs of human life; consequently all arbitrary abuse, all arbitrary destruction, are contrary to right." Vol. 2, ed.1876, Bk. I, div. 1,64; ed. 1860, p. 356. Schooler, in his Treatise on the Law of Personal Property, says: "Nature teaches the lesson, doubly enforced by revelation, that the right of the human race to own and exercise dominion over the things of this earth in successive generations carries with it a corresponding moral obligation to use, enjoy, and transmit in due course for the benefit of the whole human race, not for ourselves only, or for those who preceded us, but for all who are yet to come besides, that the grand purpose of the Creator aud Giver may be accomplished." Thiers, in his'Treatise on Property, says that experience demonstrates the absolute necessity of the institution of property, its appropriateness, 191 its usefulness; that property is a general, constant, universal fact, as indispensable to the existence of man as liberty is to his welfare; that, in all ages and in all countries, man has instituted property as the nee- cessary reward of labor, and that property has become a law of his species. Bk. ii, chapters 1, 2, 3, and 4. But no writer has ever maintained the monstrous proposition that society when instituting, property, recognized the wanton, reckless extermination of a race of useful animals as one of the rights inherent in man, or as tolerated by the principles of justice, benevolence, and right which constitute the basis of the law of nations. All will concede that one of the great objects, if not the supreme object, which society exxiectedto accomplish by the institution of property, was to preserve and increase those things, animate and inanimate, that are bestowed upon man for his use. Mankind is entitled to participate in the enjoyment of the things thus bestowed upon the world, and that it may do so, society recognizes the right of every one to appropriate to his own use such things as susceptible of ownership, have not been appropriated by others. He is allowed, under given circumstances, to appropriate to himself, exclusively, valuable animals fierce naturce, but he may not, of right, exterminate the race itself. If, by care, industry, and self-denial, he can bring the race under such control that he, and he alone, is able to deal with it as a whole, taking the increase without diminishing the stock, then as I have ahead endeavored to show, a recognition of a right of property in him is not only a fair and just return for the care, industry, and self- denial bestowed by him, but is consistent with the objects for which property has been instituted. But he cannot, without committing a wrong against society, exterminate the race itself, either from mere wantonness or by the employment of methods that inevitably lead to that result. With entire truth, therefore, it may be said that the extermination of this race of animals by the destructive methods of pelagic sealing, involving necessarily the killing in vast numbers of female seals heavy with young or nursing, their pups, or impregnated, is a crime against the lawof nature, and consequently without any sanction whatever in thelaw of nations. That law, indeed, recognizes the freedom of the seas for the peoples of all nations, and no nations have stood more firmly by that doctrine or are more interested iu its enforcement than Great Britain and the United States. But I have not found in any treatise upon in- 192 ternational law, or iu the judgment of any court, a hint even that this doctrine confers upon individuals or associations a right to employ methodsfor the takingof useful animals found in the high seas which will exterminate the race, when all know, or may easily know, that such animals maybe readily taken at their breeding grounds, and not elsewhere, by methods that regularly give their increase for man's use without at all impairing or diminishing the stock. One method results in the extermination of the race, whereby the object of its creation is entirely defeated; the other results in its preservation, whereby that object is secured. It is inconceivable that the law of nations gives or recognizes the right to employ the former. No civilized nation does or would permit, within its own territory, the destruction or extermination of a race of useful animals by methods at once cruel and revolting. And yet it is said that such conduct, if practiced on the high seas, the common highway of all peoples, is protected by international law which rests, as jurists and courts agree, primarily upon those principles of morality, justice, right, and humanity, by which the conduct of individuals and states are, and ought to be, guided. Thus the law to which all civilized nations have assented is made, by the contention in question, to cover and protect acts which no one ofi those nations would, for an instant, tolerate within its limits. It is beyond all comprehension that an act which every civilized man must condemn can be justified and sustained as having been done in the exercise of a right given or secured by a law based upon the assent of nations. I That I am correct in saying that no nation would permit, within its territory, any methods for the taking of useful wild animals that would result in the speedy extermination of the race is shown by reference to the legislative enactments and regulations in different countries for the protection of valuable animals, the basis of important industries, against the reckless conduct of those who consult temporary gain for themselves at the expense of. the rights of the general public. But it is said: " Grant that the taking of these animals in tho high seas, by methods destructive of the race, is not-a right under the law of nations; grant that the employment of such methods is inhuman and injurious to the best interests of mankind; grant that the fur seal industry maintained at the Pribilof Islands depends absolutely upon these animals not being killed while they are temporarily in the high seas in search of food, or while they are on their way back to their 193 breeding grounds; by what authority does the United States interfere with the movements of the subjects of other countries on the high seas, and by the use of force prevent them from taking these animals while they are beyond the jurisdictional limits of that country?" This question proceeds upon the ground—propounded, not, indeed, in words, but, in effect, by the argument of counsel—that, without support from treaties or conventions between the maritime nations of the world, the United States is powerless, under the law of nations, to preserve the industry established and maintained by it at the Pribilof Islands against the lawless acts of individuals upon the high seas. These acts are so characterized, because the killing of these fur seals in the high seas, as now practiced, where no discrimination as to sex is possible, and when the extermination of the race will be the inevitable result of such killing, is forbidden by every consideration of humanity, reason, and justice. And, in view of the facts disclosed by the record, it is clear that the killing of these animals by pelagic sealers, while they are in the high seas, on their migration-route, is as certainly destructive of the industry maintained by the United States at the Pribilof Islands as if the pelagic hunters came personally to the islands, during the breeding season, and engaged there in the indiscriminate slaughter ofi the animals, without regard to their sex or age. That the United States can rightfully control the killing of these animals both on the Pribilof Islands aud within its territorial waters will not be disputed. This much, all admit, may be done in virtue of its sovereignty over such country and waters. But as the important industry maintained ou the islands can be preserved only by preventing the destruction of these animals after they have passed beyond territorial waters into the high seas, with the intention of returning to their breeding grounds the succeeding spring and summer, does not the right of self-protection or self-preservation, which belongs to every independent nation, entitle it to protect these animals while temporarily abseutfromtheirlaudhome? Vattelsays: "In vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them aright to preserve themselves from everything that might render this care ineffectual. * * * Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfectiou, and happiucss—that is, to preserve herself from all injuries; aud this right is a perfect one, since it is given to satisfy 11492- -13 194 a natural indispensable obligation; for when we can not use constraint in order to cause our rights to be respected their effects are very uncertain. It is this right to preserve itself from all injury that is called iheright ofi security." Bk.2,c. 4. Dr. Phillimore, in his Commentaries on International Law, says: "The right of self-preservation is the first law of nations, as it is of individuals. A society which is not in a condition to repel aggression from without is wanting in its principal duty to the members of which it is composed and to the chief end of its institution. All means which do not affect the independence of other nations are lawful for this end. No nation has a right to prescribe to another what these meaus shall be, or to require any account of her conduct in this respect." Again, the same author: " We have hitherto considered what measures a nation is entitled to take for the preservation of her safety within her dominions. It may happen that the same right may warrant her in extending precautionary -measures without these limits, and even in transgressing the borders of her neighbor's territory. For international law considers the right of self-preservation as prior and paramount to that of territorial inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right." 1 Phillimore, 252-253, c. 10, §§ 211, 214, 2d ed. Hall says: "In the last resort almost the whole of the duties of states are subordinated to the right of self-protection. * * * There are, -however, circumstances falling short of occasions 'upon which existence is immediately in question, in which through a sort of extension of the idea of self-preservation to include self-protection against serious hurt, states are allowed to disregard certain of the ordinary rules of law, in the same manner as if their existence were involved." Hall Int. Law, PI. II, C. 7, 2 ed.,p. 244. It has been suggested that the doctrine of self-protection, referred to by-writers upon international law, has application only where the acts against which the state defends itself involve its existence, independence, or safety, or the inviolability of its territory, and do not justify in time of peace, any exercise of authority or power by a state, beyond its jurisdictional limits, in order merely to prevent the doing of that which, in its direct effects, will work injury to its material interests. A fifciliar illustration of the extent to which a State may go in defending its existence or providing for its safety, is that of a blockade which interferes with the commerce of neutral nations. " The greatest liberty," Manning says, "which law should allow in civil government H the power of doing everything that does not injure any other person, 195 and the greatest liberty which justice among nations demands is that every state may do anything that does not injure any other state with which it is at amity. The freedom of commerce and the rights of war, both undoubted as long as no injustice results from them, become questionable as soon as their exercise is grievously injurious to any independent state, but the great difference of the interest concerned makes the trivial nature of the restriction that can justly be placed upon neutrals appear inconsiderablewhen balanced against the magnitude of the national enterprises which unrestricted neutral trade might compromise. That some interference is justifiable will be obvious on the consideration that if a neutral had the power of unrestricted commerce he might carry to a port blockaded and on the point of surrendering, provisions which would enable it to hold out and so change the whole issue of a war; and thus the vital interests of a nation might be sacrificed to augment the riches of a single individual." Manning's Law ofi Nations, Bk. 3, c. 3. The force of this principle is not lessened by the suggestion that it relates to a time of war, to the rights of belligerents. The right of self- protection or self-preservation is as complete and perfect in time of peace as in time of war. The means employed when war prevails may not always be used iu a time of peace. The test, both in war or in peace, is whether the particular means used are necessary to be employed for purposes of self-protection against wrong and injury. Undoubtedly, the general rule that a state may employ such means for its self-preservation as are necessary to that end, is subject to the qualification stated by Mr. Chitty iu his notes to the 7th American edition (1849) of Vattel, namely, that a nation has the right, in time of peace or of war, to diminish the commerce or resources of another by fair rivalry and other means not in themselves unjust, precisely as one tradesman may by fair competition undersell his neighbor and thereby alienate his customers. P. 142. But this qualification is wholly inapplicable to the present case, for the reason that the killing of these animals in the high seas, by seal hunters, is in itself unjust, and as I have attempted to show, does not rest upon any right secured by the law of nations to those who are engaged in that mode of taking them. It is equally true that the commonest and simplest form in which the doctrine of self- preservation is illustrated is in cases where a nation employs force beyond its own limits, either on the high seas or within the limits of another state, iu order to meet a threatened attack upon its existence or a threatened invasion of its territory. But I am aware of no author- 196 ity for the broad statement that a nation may not use, upon the high seas, in time of peace, such force as is necessary to prevent the commission of acts which have no sanction in the laws of nations, are in themselves wrong, and, if committed, will inevitably destroy important industries established and maintained by that nation within its territory for' purposes of revenue and commerce. The nation thus employing force for the protection of its lawful industries does not thereby appropriate to itself any part of the ocean, or extends its dominion, or interfere with an innocent use of the sea for purposes of navigation or fishing. It only prevents the doing of what can not be rightfully done, aud thereby preserves what no one has a right to deotroy. The doctrine of the freedom of the seas does not authorize or sanction the destruction of the material interests of a nation by means of acts done on the high seas which are in themselves unjust and wrong, because hostile to the interests of mankind, and contrary to those rules of morality, justice, and right reason which govern the conduct of individuals and nations with each other. Mr. Blaine well said: "The law of the sea is not lawlessness. Nor can the law of the sea and the liberty which it confers and which it protects be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the welfare of mankind." As declared by Mr. Justice Story, speaking for the Supreme Court of the United States, in the case of the Marianna Elora (11 Wheaton, 1,42): " Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; but, whatever be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is sic utero tuo, ut non alienum Icedas." Observe, that the business upon the high seas, the uninterrupted prosecution of which is protected by the doctrine that the free use of the ocean for navigation and fishing is common to all mankind, is that which is " lawful." This doctrine can not be invoked to support the use of the high seas for the perpetration of wrongs or injuries. On the contrary, the principal ground on which that doctrine rests is that the sea is so vast iu extent, and so inexhaustible in its products, that its free use for purposes of navigation and fishing can do no harm to any one. Twiss, in his work upon the Law of Nations, after observing that 197 the open sea is by nature not capable of being reduced into the possession, or beiug effectively occupied, or brought under the empire of one nation, says: "But independently of these insurmountable difficulties, the use of the open sea, which consists in navigation, is innocent and inexhaustible; he who navigates upon it does no harm to any one, and the sea in this respect is sufficient for all mankind. But nature does not give to man a right to appropriate to himself things which may be innocently used by all, and which are inexhaustible and sufficient for all. For since those things, whilst common to all, are sufficient to . supply the wants of each, whoever should attempt to render himself sole proprietor of them (to the exclusion of all other participants) would unreasonably wrest the bounteous gifts of nature from the parties excluded. Further, if the free and common use of a thiug, which is incapable of being appropriated, was likely to be prejudicial or dangerous to a nation, the care of its own safety would authorize it to reduce that thing under its exclusive empire, if possible, in order to restrict the use of it on the part of others, by such precautions as prudence might dictate. But this is not the case with the open sea, upon which all persons may navigate without the least prejudice to any nation whatever, and without exposing any nation thereby to danger. It would thus seem that there is no natural warrant for any nation to seek to take possession of the open sea or even to restrict the innocent use of it by other nations." Again, the same author: "The right of fishing in the open sea or main ocean is common to all nations, on the same principle which sanctions the common right of navigation, namely, that he who fishes in the open sea does no injury to any one, and the products of the sea are in this respect inexhaustible and sufficient for all." Twiss,' Law of Nations, Title, Right ofi the Sea 0. 11, §§ 172,185. So Gro- tius: "It is certain that he who would take possession of the sea by occupation could not prevent a peaceful aud innocent navigation; such atransit can not be interdicted even on land, though ordinarily itwould be less necessary and more dangerous." Bk. 2, c. 3, § 12, page 445, Vattel: "It is manifest that the use of the open sea which consists in navigation and fishing is innoeent and inexhaustible; that is to say, he who navigates or fishes is sufficient for all mankind." Ghap. 33, Sec. 291. Azuni, in his work on the Maritime Law of Europe, well says that the sea is intended by Providence to be common to the different nations of the world, "to contribute to the wants, the commerce, the well-beiug and the prosperity of ad who 198 have the means of navigating its surface"—not that it may be used of right to the injury of mankind in order that a few may reap a temporary profit from the destruction of that which has been bestowed for the benefit of all. Pt. 1, c. 1, § 11. In view of these authorities, how can it be said that the doctrine of the freedom of the seas justifies and protects the use of the seas for the pnrposeor wi th the inevitable effect of destroying a race of valuable animals, limited in numbers, easily exhaustible by waste, and in the preservation of which all mankind is interested? If the United States does not own this herd of seals, and if, in order that they may reap temporary profit, British subjects may, of right, exterminate it when found in the high seas, and temporarily absent from its land home, and thus destroy an important industry maintained for more th an a century within the present territory of the United States, then, I admit, that any interference by the United States with the hunting and killing of these animals in the high seas by British subjects would be a marine trespass of which their country could rightfully complain. But I deny that any use of the seas for the purpose, or with the certainty, of producing that result, is a lawful use of the ocean, or that the right of the United States to preserve its material interests, thus directly attacked, depends upon the consent of other countries to be manifested by treaty or legislation. The nation, whose interests are thus assailed may stand upon its inalienable right of self-protection, and by force, if need be, prevent the commission of such acts, even if it may not in its own courts inflict personal punishment for such wrongs upon the subjects of other countries who commit them. If it employs for its self-protection more force than is reasonably necessary it will be responsible therefor to the country upon whose subjects such force is used. But its inability to inflict such punishment, in its own courts, can not affect its right, by such force as is necessary, to preserve its material interests by repressing the acts of wrongdoers directly injurious to those interests. When the books speak of the equal rights of all people to use the ocean for purposes of navigation they mean navigation for purposes that are innocent and lawful, and not for purposes which are, in themselves, unjust and injurious to others. These views are not at all in conflict with the general rule that a state may not exercise sovereign authority or jurisdiction beyond the line of territorial waters, whether that hue be a marine league from its shores, or at such distance as may be measured by cannon shot. That rule has its origin in the necessity which every state is under to provide for the safety of its own people and interests. But the right of self- 199 protection or self-preservation does not end with the outer line of marginal or territorial waters. In the very nature of things it could not end with that line without rendering the right valueless. Rutherford, in his Institutes of Natural Law, gives expression to views upon the doctrine of self protection which are universally accepted. He says: "Iu short, the true principles upon which our right of defending either our persons or our goods depends is this: The law of nature does not oblige us to give them up when any one has a mind to hurt them, or to take them from us; and that the law of nature does not oblige us thus to give them up, is evident; because our right to them would be unintelligible, or would, in effect, be no right at all if we were o'bliged to suffer all mankind to treat them as they pleased, without endeavoring to prevent it. If this, then, is the principle upon I which the right of defense depends, we can not expect to find that the law of nature has exactly defined how far we may go, or what we may lawfully do, in endeavoring to prevent an injury which anyone designs and attempts to do us. The law allows us to defend our persons or our property; and such a general allowance implies that no particular means of defense are prescribed to ns. We may, however, be sure that whatever means are necessary must be lawful, because it would be absurd to suppose that the law of nature allows of defense, and yet forbids us at the same time to do what is necessary for this purpose." Bk. 1, e. 16, 2d American ed. An illustration of these priuciples is furnished by the case in the Supreme Court of the United States of Church vs. Hubbart (2 Cranch's Reports, 186, 234), decided iu 1801. That was an action upon policies of insurance upon the cargo of a vessel, which contained provisions exempting the insurance company from liability in case of a seizure of the vessels by the Portuguese for illicit trade. During the life of the policies the vessel was seized by the Portuguese and condemned in one of its municipal tribunals for a violation by it of the laws of Portugal prohibiting commercial intercourse between its colonies and foreign vessels. On behalf of the insured it was contended, among other things, that the policy of insurance did not exempt the company from liability, unless the seizure was justified by the laws of Portugal and by the law of nations. His counsel said: " The sentence does not go on the ground of illicit trade. At most it only expresses a suspicion. The vessel was seized five leagues from the land, at anchor on the high seas. The seizure was not justified by their [Portuguese! laws. She was not within their- territorial jurisdiction. By the law 200 of nations territorial jurisdiction can extend only to the distance of cannon shot from the shore. Vattel, B. I, c. 23, s. 280, 289. A vessel has a right to hover on the coast. It is no cause of condemnation. It can, at most, justify a seizure for the purpose of obtaining security that she will not violate the laws of the country. The law which is produced forbids the vessel to enter a port, but does not authorize a seizure upon the open sea. Great Britain, the greatest commercial nation in the world, has extended her revenue laws the whole length of the law of nations, to prevent smuggling. But she authorizes seizures of vessels only within the limits of her ports, or within two leagues of the coast; and then only for the purpose of obtaining security". 4 Bac. Abr., 543. Counsel for the insurance company, referring to the rule cited from Vattel, and observing that it had reference only to the rights of a neutral territory in time of war, said: "It is a very indefinite rule indeed, even for the purpose to which it extends, for it makes the extent of a nation's territory depend upon the weight of metal or projectile force of her cannon. It is a right which must resolve itself into power, and comes to this, that territory extends as far as it can be made to be. respected. But this principle does not apply to the right of a nation to cause her revenue and colonial laws to be respected. Here all nations, do assume at least a greater extent than cannon shot; and other passages from Vattel show the distinctions which are acknowledged on this point." I have given these extracts from the arguments of counsel to show that the question was distinctly presented whether the seizure of the vessel by the Portuguese authorities, outside of its territorial waters five leagues from land, was, for that reason merely, illegal under the law of nations. Upon this question the Supreme Court of the United States, speaking by Chief Justice Marshall, said: "That the law of nations prohibits the exercise of any act of authority over a vessel iu the situation of the Aurora, and that this seizure is, on that account, a mere marine trespass, not within the exception, cannot be admitted. To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute aud exclusive. The seizure of a vessel withiu the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But 201 its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a ueutral vessel on the high seas for coutrabrand of war is universally admitted, because the belligerent has aright to prevent the injury done to himself by the assistance intended for his enemy; so too a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent, aud it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. "In different seas, and on differeut coasts, a wider or more contracted range, iu which to exercise the vigilance of the government, will be assented to. Thus in the channel, where a very great part of the commerce to and from all the north of Europe passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade, must necessarily be restricted to very narrow limits; but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further; and foreign nations submit to such regulations as are reasonable in themselves, and are really necessary to secure that monopoly of colonial commerce which is claimed by all nations holding distant posessions. "If this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests, which h?»ve sometimes ended in open war. The English, it will be recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the guarda costas of that nation seized vessels not in the neighborhood of their coasts. This practice was the subject of long and fruitless negotiations, and at -length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters, to visit vessels four leagues from our coast, is a declaratioff that iu the opinion of the American Government no such principle as that contended for has a real existence." Church vs. Hubbart, 2 Crctnch, 187, 234, 235. 202 The diligence of learned counsel has not brought to light any adjudged case, either in England or in America, which is in conflict with or modifies to any extent the principles announced in Church vs. Hub- bart. IS the judgment in that case is consistent with the settled principles of international law, it must follow that the right of the United States to prevent the extermination of a race of animals upon whose existence depends an imxiortant industry maintained within its limits— an industry which is a source of revenue, and is directly connected with the government of the native inhabitants of the Pribilof Islands— is not to be denied upon the ground merely that such force, to be effective to accomplish that end, must be used on the high seas beyond its territorial waters.' It is a fact, not without interest, that the decision in Church vs. Hubbart was referred to with approval in the opinion of Lord Chief Justice Cockburn (concurred iu by Lush and Field, J. J. and Pollock B.) in the great case of The Queen vs. Keyn (L. R. 2 Exch. Div., 63, 214). The principal question iu that case was whether an English criminal court had jurisdiction to try a foreigner, charged with the offense of manslaughter committed by him on his vessel, a foreign ship, while it was passing within three miles of the shores of England on a voyage to a foreign port. In the course of his opinion, the Lord Chief Justice said: "I pass on to the statutory enactments relating to foreigners within the three-mile zone. These enactments may be divided, 1st, into those which are intended to protect the interests of the State and those which are not; 2d, into those in which the foreigner is expressly named, and those in which he has been held to be included by implication only. Hitherto legislation, so far as relates to foreigners in foreign ships iu this part of the sea, has beeu confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and fishery laws, aud, under particular circumstances, to cases of collision. In the first two, the legislation is altogether irrespective of the three-mile distance, being founded on a totally different principle, namely, the right ofi a state to take all necessary measures for the protection of its territory and rights and the prevention of any breach of its revenue laws. This principle was well explained by Marshall, C. J., in the case of Church vs. Hubbart (2 Cranch, 234)." After quoting what appears in the above extract from the opinion of Chief Justice Marshall, the Lord Chief Justice proceeds: "To this class of enactments belong' the acts imposing penalties for the viola- 203 tion of neutrality and the so-called 'Hovering Acts' and acts relating to the customs." I have not understood counsel to question the validity, under the law of nations, of the statutes of either England or the United States, commonly known as hovering acts, by which those countries assume to exert their authority (if need be, employing force) beyond the line of territorial waters, when that becomes necessaryfor the protection of her revenue against those who intend to violate their customs laws and regulations. This is done, to repeat the words of Lord Chief Justice Oockburn, in the exercise of "the right of a state to take all necessary measures' for the protection of its territory and rights and the prevention of any breach of its revenue laws." Suppose individuals should organize in England a plan for smuggling goods into the United States iu violation of its revenue law, and to that end should load a vessel at Liverpool with the goods thus intended to be introduced clandestinely into the United States and sail from one of the ports of that country iu direct execution of their illegal scheme. Would any one doubt the right of the United States, if the circumstances made that course necessary, to authorize the seizure of the goods in mid-ocean and confiscate them? Must the United States, in such a case, forbear to take any steps whatever for the protection of its rights and its revenue until the vessel gets near to its coasts? Upon what principle can the righ t to cause such seizure outside of territorial waters and within the distance from the shore fixed by hoveriug acts, be any greater than that of seizing, under the circumstances stated, in mid- ocean? Suppose, again, that a vessel laden with rags infected with yellow fever were on its way to one of the ports of the United States. Can any one doubt that the government of that country would be entitled, under the law of nations, to cause the seizure of the infected rags in mid-ocean and their destruction, if that mode of proceeding were, under all the circumstances, necessary to protect its people against the danger of yellow fever? It seems to me that the question as to the extent to which a nation may go in protecting its rights depends entirely ou the circumstances of each particular case. If the rights assailed are such as the nation may defend and preserve against the wrongful acts of others, then it may employ, at the place of attack, from which the injury proceeds, certainly, if that place be not within the exclusive jurisdiction of another power, all the 204 - means necessary to prevent the commission of those acts. In the case before us it appears, by overwhelming evidence, that if prelagie sealing continues to any material extent, the important industry which the United States has established and maintains, at great expense, on the Pribilof Islands, for purposes of revenue and commerce, and for the benefit of all countries, must perish by the acts of individuals and associations of individuals committed beyond its jurisdictional limits, on the high seas, where the ships and peoples of all nations are upon an equality—an industry which has never been interfered with until pelagic sealers devised their barbarous methods for slaughtering female seals, some impregnated, some heavy with young, and others suckling mothers in search of food for the sustenance of themselves and their offspring. If, as already suggested, these acts are done in the exercise of a right recognized and secured by the law of nations, then they can not be prevented or restrained by the United States, however injurious they may be to any business conducted within the territory of that nation. But if those acts are not recognized and protected by the law of nations; if no one can claim that all the nations have assented to the doing of that on the high seas which no single nation would permit to be done within its own territory; in short, if no one has the right, for mere temporary gain, to destroy useful animals by methods that will inevitably and speedily result in the extermination of the race, then the United States, whose revenue and commerce are directly involved in the preservation of that race, may, consistently with the law of nations, protect its interests by preventing the commission of those wrongful acts. If the views which I have expressed are shared by a majority of the Arbitrators, the answer to the fifth question of Article VI of the treaty should be That the herd of fur seals frequenting the islands of St. Paul and St. George in Bering Sea, when found in the ocean, beyond the ordinary three-mile limit, are the property of the United States, and as long as these animals have the habit of returning from their migration-routes to, and of abiding upon, those islands, as their breeding grounds,, so that their increase may be regularly taken there, and not elsewhere, without endangering the existence of the race, that nation, in virtue of its ownership of such herd and islands, may rightfully employ, for the protection of those animals against pelagic sealing, such means as the law permits to individuals for the protection of their property; and, That independently of any right of property in tho herd itself, the- 205 United States, simply as the owner of the fur seal industry maintained by its authority on the islands of St. Paul and St. George, and under the doctrine of self-protection, may employ such means, including force, as may be necessary to prevent the commission of acts which will inevitably result in the speedy extermination of this race of animals, the basis of that industry, while they are in the high seas beyond territorial waters, and temporarily absent from their breeding grounds or land home on those islands. COXCDRRG!Vr RGGULATIONg, The Tribunal having determined that the Government of the United States has no authority or jurisdiction in Beriug Sea, beyond the ordinary limit of territorial waters, except such as appertains equally to all nations, and that it has no right of property in, nor any right to protect, the fur seals frequenting its islands in that sea, when they are found outside of the ordinary three-mile limit, what is our duty in respect to Concurrent Regulations for the protection and preservation of these animals? We have seen that by the Seventh Article of the Treaty, under which the Tribunal is proceeding, it is provided: " If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit. "The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other powers to such Regulations." It is unnecessary to determine whether the words " foregoing questions" in this Article refer to the questions specifically mentioned iu Article VI, or to those of a more general character enumerated in Article I of the Treaty. In either ease, we must proceed to consider the subject of Regulations; for, if the United States has no "exclusive jurisdiction" over the waters traversed by these seals in their annual migrations (as clearly it has not); if, as the majority of the Arbitrators 206 have declared, that Nation does not own this herd of seals when they are in the high seas, beyond jurisdictional limits, and can not, in virtue of any power it possesses, protect them against pelagic sealing; and if, as the same majority hold, British subjects at any time, or by any methods they choose to employ, may, when unrestrained by the laws of their own country, capture and kill these animals, while they are in the open waters of the ocean, and without limit as to the numbers so taken, it is too clear to admit of discussion that the concurrence of Great Britain is necessary in the establishing of regulations applicable to its own subjects and to waters outside the jurisdictional limits of the respective Governments. So that it must now be decided by the Tribunal, whether concurrent regulations are necessary for "the proper protection aud preservation" of the seals while they are in the high seas, beyond territorial waters? If so, over what waters shall such regulations extend, and to what extent must pelagic sealing be restricted ? If I have not misapprehended what has been. said by Arbitrators during this Conference, we are all agreed that regulations of some kind are necessary; indeed, that an adjournment of this Tribunal without its having prescribed regulations "for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea," would be regarded as a violation of duty upon the part of its members. It has been suggested that the Tribunal is without power, under the treaty, to establish any regulations that will have the effect to suppress altogether the business of taking these animals, in the high seas, by the citizens of the respective countries here represented; and that the duty of this Tribunal—it having been decided that pelagic sealing is not forbidden by the law of nations—is to prescribe regulations that will not injure, to any material extent, much less destroy, the business of pelagic sealing. I had occasion, at one of the early sessions of this Tribunal, to express my views as to its powers or competency, under the treaty, iu respect to regulations. My opinion then was, and is now, that the Tribunal has the power, and is under a duty, from the discharge of which it may not shrink, to prescribe whatever regulations are necessary for the protection and preservation of these seals when in the high seas. If that end can not be accomplished otherwise than by regulations, which either expressly or by their operation, prohibit all pelagic sealing, then it is our duty to prescribe regulations of that character. 207 But it is said that, as the two governments have agreed "to cooperate in securing the adhesion of other powers to such regulations" as may be established, the Tribunal must do nothing likely to defeat any effort that may be made to obtain this adhesion of other nations. If we find from the evidence—and, in my opinion, the evidence conclusively shows—that this race can not be preserved, but will be entirely destroyed for all commercial purposes if pelagic sealing is permitted to any material extent, then our duty is to make regulations that will protect the race against such an attack. We must assume that civilized nations will approve and make applicable to their peoples any regulations which have for their object, and which plainly will secure, the preservation of this race for the benefit of mankind. Surely, there can not be "proper" protection and preservation of these seals, when in the high seas,- if the regulations adopted by the Tribunal admit of pelagic sealing to an extent that will seriously endanger the existence of the race. If that mode of taking these seals for use can be permitted to an extent that does not materially endanger the integrity of the race, then I concede that to that extent—the Tribunal having determined the questions of property and protection against the United States—it may be allowed. I protest- against any interpretation of the treaty which assumes that other nations will refuse to give their support to any regulations except such as are based upon a mere compromise, as between Great Britain and the United States, which leaves this race of animals unprotected against destruction. In view of the diplomatic correspondence which has been placed in our hands, there is ground for surprise at the earnestness with which is contended that other nations could not be expected to assent to regulations that would suppress pelagic sealing, and that this Tribunal, when considering the subject of regulations applicable to the peoples of the United States and Great Britain, should permit the inquiry as to what regulations are in fact necessary to be controlled by conjecture as to what might be agreeable to other nations than those who made the Treaty. From that correspondence (some of which is given in the margin*), it will distinctly appear that Lord Salisbury proposed * "What is now the seventh article of the Treaty was proposed by President Harrison as early as June 25, 1891. (U. S. Case, Vol. I, App., 319.) It having been proi)osed that the two Governments -should sign the text of tho seven articles to be inserted in the Arbitration Agreement, and of the Joint Commission Article, as settled in the diplomatic correspondence, in order to record the 208 to sign the articles which the two Governments agreed should be inserted in the Arbitration Agreement, with a reservation that the Regulations would not become obligatory on Great Britain and the United States "until they have been accepted by the other maritime powers." President Harrison refused, through Mr. Blaine, to permit any such reservation. Lord Salisbury, subsequently, stated that his progress made in the negotiations, Sir Julian Pauncefote wrote to Mr. Blaine, under date of November 23, 1891, expressing the assent of Lord Salisbury to that course. But for the purposes of obviating any doubts that might arise as to the meaning of Article VII, Sir Julian said, in that letter: "His lordship understands, first, that the necessity of any regulations is loft to the Arbitrators, as well as the nature of those regulations, if the necessity is in their judgment proved; secondly, that the regulations will not become obligatory on Great Britain and the United States until they have been accepted by tho other maritime powers. Otherwise, as his lordship observes, the two Governments would be simply handing over to others the right of exterminating the seals. "I have no doubt that you will have no difficulty in concurring in the above reservations, and, subject thereto. I shall bo prepared to sign the articles as proposed." To this letter Mr. Blaine, November 27,1891, replied: "You inform me now that Lord Salisbury asks to mate two reservations in the sixth article. His first reservation is that 'the necessity of any regulations is left to the arbitrators, as well as the matter of those regulations if the necessity is in their judgment proved.' "What reason has Lord Salisbury for altering the text of the article to which he had agreed? It is to be presumed that if regulations are needed they will be made, if they are not needed the arbitrators will not make them. The agreement leaves the arbitrators free upon that point. The first reservation, therefore, has no special meaning. "The second reservation which Lord Salisbury makes is that 'the regulations shall not bocome obligatory on Great Britain and the United States until they shall have been accepted by the other maritime powers.' Does Lord Salisbury mean that the United States and Great Britain shall refrain from taking seals until every maritime power joins in the regulations, or does he mean that scaling shall be resumed the 1st of May next, and that we shall proceed as before tho arbitration until the regulations have been accepted by the other 'maritime powers'?' " 'Maritime powers' may mean one thing or another. Lord Salisbury did not say the principal maritime powers. France, Spain, Portugal, Italy, Austria, Tnrkey,Eussia, Germany, Sweden, Holland, Belgium, are all maritime powers in the sense thatt they maintain a navy, great or small. In like manner Brazil, the Argentine Confederation, Chile, Peru, Mexico, and Japan are maritime powers. It would require a lono- time, three years at least, to get the assent of all these powers. Mr. Bayard, on the 19th of August, 1887, addressed Great Britain, Germany, France, Russia, Sweden and Norway, and Japan with a view to securing some regulations in regard to the 209 Government would retain the right of raising the point suggested "when the question of framing the regulations came before the Arbitrators." He wished it understood that the Arbitrators would have full discretion in the matter, and might attach " such conditions to the regulations as they may a priori judge to be necessary and just to the two powers, in view of the difficulty pointed out." But to this suggestion seals in Bering Sea. France, Japan, and Russia replied with languid indifference; Great Britain never replied in writing; Germany did not reply at all; Sweden and Norway said the matter was of no interest to them. Thus it will be again. Such a proposition will postpone the matter indefinitely. "The President regards Lord Salisbury's second reservation, therefore, as a material change in the terms of the arbitration agreed upon by this Government; and he instructs me to say that he does not feel willing to take it into consideration. He adheres to every point of agreement which has been made between the two powers, according to the text -which you furnished. He will regret if Lord Salis'- bnry shall insist on a substantially new agreement. He sees no objection to submitting the agreement to the principal maritime powers for their assent, but he can not agree that Great Britain and the United States shall make their adjustment dependent on the action of third parties who have no direct interest in the seal fisheries, or that the settlement shall be postponed until those third parties see fit to act." Sir Julian Pauncefote, December 1, 1891, in acknowledgment of Mr. Blaine's letter, said: " As regards the first reservation, Lord Salisbury observes that the statement contained in your note that the clause leaves the arbitrators free to decide whether regulations are needed or not, assures the same end as the proposed reservation, which therefore becomes unnecessary and may be put aside. " With respect to the second reservation, his lordship states that it was not the intention of Her Majesty's Government to defer putting into practical execution any regulations which the arbitrators may prescribe. Its object is to prevent the fur- seal fishery in Bering Sea from being placed at the mercy of some third power. There is nothing to prevent such third power (Russia, for instance, as the most neighboring nation), if unpledged, from stepping in and securing the fishery at. the very seasons and in the very places which may be closed to the sealers of Great Britain and the United States by the regulations. " Great circumspection is called for in this direction, as British and American sealers might recover their freedom and evade all regulations by simply hoisting the flag of a nonadhering power. "How is this difficulty to be met? Lord Salisbury suggests that if, after the lapse Of one year from the date of the decree of regulations, it shall appear to either Government" that serious injury is occasioned to the fishery from the causes above mentioned, the Government complaining may give notice of the suspension of the regulations during the ensuing year, and in such case the regulations shall be suspended until arrangements are made to remedy the complaint. "Lord Salisbury further proposes that, in ease of any dispute arising between tho 11492 14 210 President Harrison refused his assent, and expressly denied the right of the British Government to appeal to the Arbitrators to decide any point not embraced in the articles of Arbitration. Mr. Blaine, speaking for the President, announced his willingness to sign the articles of agreement "withont any reservation whatever." And the representative of Great Britain at Washington, by the direction of Lord Salis- two Governments as to the gravity of the injury caused to the fishery or as to any other fact, the question in controversy shall be referred for decision to a British and an American admiral, who, if they should be unable to agree, may select an umpire. • " Lord Salisbury desires me to ascertain whether some provision of the above nature would not meet the views of your Government." Mr. Blaine, under date of December 2, 1891, in reply: "The President is.unable to see the danger which Lord Salisbury apprehends of a third nation engaging in taking seals regardless of the agreement between Great Britain and the United States. The dispute between the two nations has now been in progress for more than five years. During all this time, while Great Britain was maintaining that the Bering Sea was open to all comers at any time as of right, not another European nation has engaged in sealing. "A German vessel once made its appearance in Bering Sea, but did not return, being satisfied, I suppose, that at the great distance they have to sail, the Germans could not successfully engage in sealing. Russia, whose interference Lord Salisbury seems to specially apprehend, will not dissent from the agreement, because such dissent would put to hazard her own sealing property in the Bering Sea. On the contrary, we may confidently look to Russia to sustain and strengthen whatever agreement Great Britain and the United States may oonjointly ordain. "It is the judgment of the President, therefore, that the apprehension of Lord Salisbury is not well grounded. He believes that, however the arbitration between Great Britain and the United States may terminate, it will be wise for the two nations to unite in a note to the principal powers of Europe, advising them in full of what has been done aDd confidently asking their approval. He does not believe that, with full explanation, any attempt will be made to disturb the agreement. If, contrary to his firm belief, the agreement shall be disturbed by the interference of a third power, Great Britain and the United States can act conjointly, and they can then far better agree upon what measure may be necessary to prevent the destruction of the seals than they can at this time. "The President hopes that the arbitration between Great Britain and the United States will be allowed to proceed on the agreement regularly and promptly. It is of great consequence to both nations that the dispute be ended, and that no delay be caused by introducing new elements into the agreement to which both nations have given their consent." Sir Julian Paunceforte, December 8,1891: " The Marquis pf Salisbury, to whom I telegraphed the oontents of your letter of the 2d instant on the subject of the sixth article of the proposed Bering Sea Arbitration agreement, is under the impression that the President has not rightly under- 211 bury, signed them, distinctly stating that they were signed as proposed in Mr. Blaine's note, that is, " without any reservation whatever'' And, now, it is contended that while this Tribunal may not make the adhesion of other maritime powers to our Regulations a condition precedent to their being obligatory upon the United States and Great Britain, it may, nevertheless, properly refuse to prescribe regulations that will stood his lordship's apprehension with reference to the regulations to be made by the Arbitrators under that article. His fear is not that the other powers will reject the regulations, but that they will refuse to allow the arrest by British and American cruisers of ships under their flag which may engage in the fur seal fishery in violation of the - regulations. Such refusal is highly probable in view of the jealousy which exists as to the right of search on the high seas, and the consequence must inovitably be that during the close season sealing will go on under other flags. "It can not be the intention of the two Governments, in signing the proposed agreement, to arrive at such a result. "I do not understand you to dispute that should such a state of things arise the agreement must collapse, as the two Governments could not be expected to enforce on their respective national regulations which are violated under foreign flags to the serious injury of the fishery. "I hope, therefore, that on further consideration the President will recognize the importance of arriving at some understanding of the kind suggested in my note of the 1st instant." Mr. Blaine, December 10,1891, in reply: "In reply to your note of the 8th instant I have the following observations to make: "First. Ever since the Bering Sea question has been in dispute (now nearly six years) not one ship from France or Germany has ever engaged in sealing. This affords a strong presumption that none will engage in it in the future. "A still stronger ground against their taking part is that they can not afford it. From France or Germany to Bering Sea by the sailing line is nearly 20,000 miles, and they would have to make the voyage with a larger ship than can be profitably employed in sealing. They would have to start from home the winter preceding the sealing season, and risk an unusually hazardous voyage. When they reach the fishing grounds they have no territory to which they could resort for any purpose. "Third. If we wait until we get France to agree that her ships shall be searched by American or British cruisers we will wait until the last seal is taken in Bering Sea. "Thus much for France and Germany. Other European countries have the same disabilities. Russia, cited by Lord Salisbury as likely to embarrass the United States and England by interference, I should regard as an ally and not an enemy. Nor is it probable that any Amerioan country will loan its flag to vessels engaged in violating the Boring Sea regulations. "To stop the arbitration a whole month on a question of this oharaoter promises 212 suppress or materially diminish pelagic sealing, however necessary such regulations may be for the protection and preservation of this race of animals, if, in view of all the probabilities of the situation, we conjecture—it can be nothing more than conjecture—that other nations will not approve them. This would enable Great Britain to accomplish precisely what it could have accomplished had it been permitted to sign the Treaty with a reservation of authority for the Arbitrators to make the assent of the maritime powers a condition of our regulations, ill for its suocess. Some other less important question even than this, if it can be found, may probably be started. The effect can only be to exhaust the time allotted for arbitration. We must act mutually on what is probable, not on what is remotely possible. " The President suggests again that the proper mode of proceeding is for regulations to be agreed upon between the United States and Great Britain and then submitted to the principal maritime powers. That is an intelligent and intelligible process. To stop now to consider the regulations for outside nations is to indefinitely postpone the whole question. The President, therefore, adheres to his ground. first announced, that we must have the arbitration as already agreed to. He suggests to Lord Salisbury that any other process might make the arbitration impracticable within the time specified." Sir Julian Pauncefote, under date of December 11, 1891: "I have the honor to inform you that I telegraphed to the Marquis of Salisbury the substance of your note of-yesterday respecting the sixth article of the proposed Bering Sea arbitration agreement, and that I have received a reply from his lordship to the following effect: In view of the strong opinion of the President, reiterated in your note of yesterday, that the danger apprehended by Lord Salisbury, and explained in my note of the 8th instant, is too remote to justify the delay which might be incurred by guarding against it now, his lordship will yiold to the President's appeal and not press for further discussion at this stage. "Her Majesty's Government of course retain the right of raising the point when the question of framing the regulations comes before the arbitrators, and it is understood that the latter will have full discretion in the matter, and may attach such conditions to the regulations as they may a priori judge to be necessary and just to the two powers in view of the difficulty pointed out. " With the above observations Lord Salisbury has authorized me to sign the text of the seven articles and of the joint commission article referred to in my note of the 23d ultimo, and it will give me much pleasure to wait upon you at the State Department for that purpose at any time you may appoint." Mr. Blaine, December 14,1891, in reply: " I have the honor to advise you that I submitted your note of the 11th instant to the President. After mature deliberation he has instructed me to say that he objects to Lord Salisbury's making any reservation at all, and that he cannot yield to him the right to appeal to the arbitrators to decide any point not embraced in the articles of arbitration. The President does not admit that Lord Salisbury can resorve 213 whether self-executing or not, becoming obligatory npon Great Britain and the United States. I can not believe that this Tribunal will proceed upon any such ground as that now suggested by the Counsel for Great Britain. During the argument much was said about the mode in which the business of taking for seals on the Pribilof Islands had been conducted by the licensees of the United States. It was said then, and the sug- the right in any way to affect the decision of the arbitrators. We understand that the arbitration is to proceed on the seven points which are contained in the articles which you and I certify were the very points agreed upon by the two Governments. "For-Lord Salisbury to claim the right to submit this new point to the Arbitrators is to entirely change the arbitration. The President might, in like manner, submit several questions to the Arbitrators, and thus enlarge the subject to such an extent that it would not be the same arbitration to which we have agreed. The President claims the right to have the seven points arbitrated, and respectfully insists that Lord Salisbury shall not change their meaning in any particular. The matters to be arbitrated must be distinctly understood before the Arbitrators are chosen. And after an arbitration is agreed to, neither of the partios can enlarge or contract its scope. "I am prepared now, as I have been heretofore, to sign the articles of agreement without auy reservation whatever, and for that purpose I shall be glad to have you call at the State Department on Wednesday the 16th instant, at 11 o'clock a. m." Sir Julian Pauncefote, December 17,1891: " I have the honor to inform yon that I conveyed to the Marquis of Salisbury, by telegram, the substance of your note of the 14th instant, respecting the sixth article of the proposed Bering Sea Arbitration agreement, and that I have received a reply from his lordship in the following sense: "Lord Salisbury is afraid that, owing to the difficulties incident to telegraphic opmmunications, he has been imperfectly understood by the President. He consented, at the President's request, to defer for the present aU further discussion as to what course the two Governments should follow in tho event of the regulations prescribed by the Arbitrators being evaded by a change of flag. It was necessary that in doing so he should guard himself against the supposition that by such consent he had narrowed tho rights of tho contending parties or of the Arbitrators under the agreement. "But in the communication which was embodied in my note of the 11th instant, his loraship made no reservation, as the President seems to think, nor was any such word used. A reservation would not be valid unless assented to by the other side, and no such assent was asked for. Lord Salisbury entirely agrees with the President in his objection to any poiut being submitted to the Arbitrators which is not embraced in the agreement and, in conclusion, his lordship authorizes me to sign the articles of the arbitration agreement, as proposed at the olose of your note under reply, whenever you may be wining to do so." (U. S, Case, vol. 1, App. 339 to 345). 214 gestion has been repeated here, that the present depleted condition of this race is due largely, if not principally, to unreasonably large drafts made, for many years past, upon male seals while they were on the breeding grounds, whereby vast numbers of that sex, competent for service, and which ought to have been preserved for purposes of reproduction, have been killed. This suggestion is unsupported by any fair view of the evidence. What has been said on that subject by some witnesses, notably by Prof. Elliott, is in gross exaggeration of the facts. No complaint can be justly made of the rules that have been prescribed by the United States in regulation of the taking of these seals on the islands. Audit must be conceded that those rules, if observed, do not admit of the taking of an undue proportion of males. The killing of female seals on the islands is absolutely prohibited. While in particular years there was mismanagement to some extent on the islands, nothing done or omitted to be done there, at any time within the past fifteen or twenty years, accounts for the recent and extraordinary diminution in the number of seals frequenting those islands during the breeding season. There is, in my judgment, no possible escape from the conclusion that such diminution is the direct result of pelagic sealing. What has or has not been done or omitted on the islands, or what may hereafter be done there, can not be made an element in the present inquiry. This Tribunal has no authority to deal with the management of the seals while at their breeding grounds on the islands of St. Paul and St. George, any more than with the mode of taking them within the territorial waters of Canada. The United States would never have submitted to this or to any other Tribunal a question involving its complete control over these seals while on its islands or within its territorial waters. It would not brook any interference with the authority which appertains to it within its own territorial limits. Proper respect for the Government of that nation compels us to assume that it has the desire to correct, and will correct, any abuses that have existed, or that may hereafter exist, in the conduct of the fur seal industry on the Pribilof Islands; just as we must assume, that the Governments of Great Britain and of Canada, after this Tribunal has made its award, will properly control the taking of seals within territorial waters. The two nations here represented took care to exclude from the consideration of this Tribunal all matters affecting their sovereign authority within jurisdictional limits, and therefore restricted inquiry touching the proper protection and preservation of these seals "to concurrent 215 regulations outside the jurisdictional limits of the respective Governments." The irrelevancy, when considering the subject of regulations, of any inquiry as to what has been done or omitted to be done on the islands, is apparent in view of one, fact clearly established by the evidence, namely: That pelagic sealing to any material extent—that is, to such extent as will be profitable to sealers—will speedily exterminate this race, even if the taking ofi seals is entirely suspended on the islands, and the United States should expend time and money in protecting the seals during the breeding season, in order simply that pelagic sealers may not be disturbed in their occupation of killing suckling females while in the ocean in search of food for the sustenance of themselves and their young, or in their business of capturing.and cutting open the bodies of mother seals, heavy with young, and throwing the unborn pups into the ocean. Our manifest duty is to inquire what, under the evidence, is the effect of pelagic sealing, in and of itself; and, according to the result of that inquiry and without any reference whatever to what has occurred or may occur on the islands in respect of this race of animals, and without regard to the special interests either of the United States or of pelagic sealers, we should establish, or by our award impose upon the two nations here represented the duty of establishing, such regulations, "outside the jurisdictional limits of the respective Governments " as are necessary for the proper protection and preservation of this herd of fur seals. Anything less from this Tribunal will shake the confidence of the world in the efficacy of arbitration as a means of composing differences between nations in respect to matters of great moment and interest. I now come to the important practical question as to what regulations, in view of all the evidence, are necessary for the proper protection and preservation of this herd of seals. We have seen that these seals begin to leave the islands in September, and by November substantially all of them are in the North Pacific Ocean, south of the Aleutian Islands. During December they may be found off the coasts of the United States, north of the 35th degree of north latitude. In January they turn their faces northward, and move, generally in small schools or bands, along, but some distance from, the coasts of the United States and British Columbia. Those in advance go through the passes of the Aleutian Islands, on their way back to the Pribilof Islands, early in June. They are moving through those passes 216 duringthe whole of that month. By the 1st or 10th of July, the entire herd has left the North Pacific and reassembled at their breeding grounds on the islands of St. Paul and St. George. As soon as the mother seals reach the islands, or within a very few days thereafter, they give birth to their pups, and take position with the bulls by whom they have been appropriated. According to the evidence, the pups require sustenance from their mothers for about eight or ten weeks. During that period, say, during July and August, the mother seals, in vast numbers, go out into the sea, in every direction, often to the distance of 100 and 150 miles, in quest of food to sustain themselves and their young. Seals have been taken in the North Pacific in January, February, and March, but not to any great extent. The opportunity for taking them improves as the season advances. The last half of April and the months of May and June are favorable for pelagic sealing, particularly the two months last named. In Bering Sea the months of July and' August are also very favorable for seal hunting. While seals may be taken in that sea during September, it is not, as a general rule, profitable to pursue the business there after August, or, at any rate, after the middle of September. The principal mischiefs from pelagic sealing have come from the killing of the seals in May and June, in the North Pacific, while the herd is moving northward to their land home, and from the killing in July and August, in Bering Sea, of breeding females which have left their pups on the islands for a time and gone into the sea in search of food. Our attention has been called to various schemes of regulations. In 1888 Mr. Bayard proposed a closed season for the period between April 15 and November 1 of every year, during which the citizens or subjects of the United States and Great Britain should be prevented from killing fur-seals with firearms or other destructive weapons, | north of 50° of north latitude, and between 160° of longitude west and 170° of longitude east of Greenwich." But a much better scheme was agreed upon, provisionally, as a basis of negotiations, at the conference subsequently held, in London, April 16,1888, between the representatives of the United States, Great Britain, and Russia. By that scheme, if it had been put into operation, a closed season, extending from April 15 to November 1 would have been established, during which no seals could be killed in athe sea between America and Russia, north ofi the 47° ofi latitude." But this scheme failed of adoption because of the intervention and protest of Canada, which was effectual to prevent Lord Salisbury 217 from adhering to it as a final settlement of the controversy. At a later stage of the negotiations between the United States and Great Britain, Mr. Blaine expressed the willingness of the United States to accept a settlement upon the basis of a zone of 20 marine leagues, within which no ship should hover around the islands of St. Paul and St. George from the 15th of May to the 15th of October of each year. U. 8. Case, Vol. I, App., 284. It is said that the scheme of regulations now proposed by the United States is far more stringent than that proposed by Mr. Bayard and Mr. Blaine, on behalf of the United States. That is true. But it should be remembered that at the time the schemes of Mr. Bayard and Mr. Blaine were proposed, the facts of seal life were not so well known as now, so full have been the recent investigations made by the two Governments, with direct reference to the present controversy, and for the purpose of ascertaining what was required in order to preserve this race of animals from extermination. In view of the fuller knowledge all now have on the subject, no one would be so wanting in frankness as to say that this race of useful animals could possibly survive pelagic sealing under the scheme proposed by Mr. Bayard, or under that proposed by Mr. Blaine. While the British Government has contrasted, to the disadvantage of the United States, the scheme now proposed by the latter, with the propositions made by Mr. Bayard and Mr. Blaine, the United States Government con-. trasts, to the disadvantage of Great. Britain, the scheme now proposed by Her Britannic Majesty with that acceded to, provisionally, by Lord Salisbury in 1888. I am of opinion that the determination of the question before us should not depend upon considerations of this kind. It is of no consequence, in the present inquiry, that the respective governments were willing, at one time, to accept regulations different from those now proposed. We must determine the questiou of regulations in the light of the facts now disclosed. If weprescribe regulations that are inadequate, we will not stand acquitted in our own consciences, or before the world, by the circumstance that that which is done may have been approved by the two Governments or either of them at sometime in the past, when the facts were not fully developed. At a former meeting of this Tribunal I presented a scheme of regulations which, in the judgment of my colleague, Senator Morgan, and myself, are adequate for the proper protection and preservation of these seals outside the jurisdictional limits of the respective Governments. That scheme provides that no citizen or subject of either country should 218 kill, capture, Of pursue these fur seals anywhere in the waters of Bering Sea or of the North Pacific Ocean, outside the jurisdictional limits of the respective governments, north of the 35° of north latitude (south of which this herd have never been known to go in its migrations) and east of the 180° of longitude from Greenwich. It also provides that offending vessels may be seized by the naval or duly- commissioned officers of either Government, and handed over, as soon as practicable, to the authorities of the nation to which they respectively belong, to be dealt with by that nation—the -witnesses and proof necessary to establish the offense or to disprove the same being also sent with the vessel seized. It further provides that every person guilty of violating these regulations should, for each offense, be fined not less than $200 nor more than $1,000, or imprisoned not more than six months, or both; such vessels, their tackle, apparel, furniture, and cargo to be forfeited and condemned. Only regulations of this character, which prohibit pelagic sealing altogether, in all the waters traversed by these seals, will, in my judgment, make the preservation of this race of animals absolutely certain. Of course, a closed season, covering all of such waters and all the months of the year when the weather admits of pelagic sealing, will give, practically, the same security as regulations of a prohibitory character covering the whole year. (Mr. Justice Harlan hero entered upon an. examination of the evidence in detail for the purpose of showing that he had not overstated the effect of pelagic sealing upon the Pribilof herd of seals. He read, at length, from the depositions, reports, tables of figures, etc., introduced by the respective Governments, to show the disastrous results of pelagic sealing. It is unnecessary to encumber this opinion with the details of the evidence to which he referred. When the subject of Regulations was under consideration in the Conference, Mr. Justice Harlan offered the following resolution, as embodying the views of Senator Morgan and himself on the question of the competency of the Tribunal: "Resolved, That the purpose of Article VII of the Treaty is to secure in any and all events, the proper protection and preservation of the herd of seals frequenting the Pribilof Islands; and in the framing of Eegulations, under the Treaty, no extent of pelagic sealing should be allowed whioh will seriously endanger the accomplishment of that end." He subsequently presented, with the concurrence of Senator Morgan, the following motion: "This Tribunal has power, and it is its duty, under the Treaty, to prescribe sneh concurrent Eegulations, covering the vraters, outside the jurisdictional limits of the two countries, of both Bering Sea and the North Pacific Ocean, traversed by the fur seals in, or habitually resorting to, Bering Sea, as may be found necessary for the proper protection and preservation of such seals, even if such Eegulations, when 2.19 Sanctioned by the legislation of the two Governments, should, by reason of their express provisions, or by their practical operation, result in preventing the hunting and taking of these seals during the seasons when the condition of said waters admits of fur seals being taken by pelagic sealers.") The scheme proposed by myself may be objected to upon the ground that the regulations which it embodies are self-executing, whereas it is argued this Tribunal has only the power to recommend the adoption of regulations, leaving it to the two Governments to enforce them by legislation. I do not assent to this view of the competency of this Tribunal. The two Governments contemplated, and we are so informed by the Treaty, that the result of our proceedings should be considered " as a full, perfect, and final settlement of all the questions referred to the Arbitrators." (Article XIV.) Our final decision or award, when made, will become, in legal effect, a part of the Treaty, as much so as if it was embodied in it. But the Treaty, when thus perfected, will not be a full, perfect, and final settlement of the controversy, if the decision or award is so framed as to amount to nothing practically until the two nations shall have had further negotiations and agreed upon such additional concurrent legislation as will be required in order that the award shall become operative for the proper protection and preservation of this race. I find nothing in the Treaty looking to such a condition of things as the result of our proceedings. Under the Constitution of the United States, a treaty, made pursuant to that instrument, and duly ratified, becomes "the supreme law of the land," without the aid of legislation, except that legislation will be required where the treaty provides for the payment of money. This exception arises from the provision in that Constitution that "no money shall be drawn from the Treasury but in consequence of appropriations made by law." Of course, if, under the British Constitution, regulations established by the Tribunal, providing for the seizure of vessels and the punishment of persons offending against such regulations, can not be made applicable to British vessels and British subjects, without legislative sanction, we must rely upon the. good faith of the two Governments interested to give effect to our decision by appropriate enactments. But I do not understand the British Constitution to require legislative approval of the regulations prescribed by the Tribunal before they can become operative against British vessels and British subjects. We have been invested by the two Governments with full power, as Senator Morgan has well said, to write into the Treaty of February 29,1892, such regulations as we find necessary and such as will be immediately effectual for the proper protection and preservation of these fur seals when they are outside the 220 jurisdictional limits of the respective nations. The engagement of the two Governments with respect to regulations was that they would cooperate in securing the adhesion of other powers "to such Eegulations" as this Tribunal should prescribe. This could have referred only to regulations which by their own force, without further action of the two Governments, would properly protect and preserve this race of animals. The adhesion of other nations to Regulations which did not, in themselves, secure the protection and preservation of this race, would be of no value. One of the schemes before us is that proposed by Sir John Thompson. I mean no disrespect to its distinguished author, whose good faith is not questioned, when I say that, in view of all the evidence, that scheme may be fairly entitled "A plan for the certain and speedy extermination of the Pribilof herd of fur seals." Under regulations such as are embodied in that plan all the seals, including gravid females, would be exposed to attack by pelagic sealers during the months of May and . June in the North Pacific Ocean; and during July, August, and September in Bering Sea, outside of a zone of thirty miles around the Pribilof Islands, nursing female seals could be slaughtered in vast numbers. The use of rifles and nets are prohibited by this scheme, while it saves to pelagic hunters the use of the destructive shotgun now in general use by them. A prohibition of rifles is of no value whatever if the shotgun is allowed. Nor is it of the slightest consequence that this scheme prohibits the killing of seals in Beriny Sea (east of the line of demarcation adopted in the Treaty of 1867 between Russia and the United States) before the 1st of July and after October 1 in each year; for, the seals can not be found in Bering Sea in any numbers worth mentioning after October 1 and before July 1. I object to this scheme upon the further ground that it allows either Government upon notice to put an end to our regulations after a named time. Whatever this Tribunal may do in this matter, let that which is done be final and permanent, subject only to such modifications or change of policy as the two governments, in their wisdom, may mutually agree to make. I see no objection to a reexamination from time to time, by the two governments, of the subject of regulations but there are many reasons against a reservation to each government of the right to set aside the regulations after the lapse of any given time. This whole subject has been a source of disturbance between these nations for so long a period that "the controversy should be now settled 221 and forever put aside. That is what these countries had in view when the Treaty of 1892 was concluded. If we put it in the power of each Government, after a named date, to set aside our regulations, the decision we make will not be a "full, perfect, and final settlement" of these questions. The wisdom and patriotism of the two great nations here represented is a sufficient guarantee that all will be done, by mutual agreement, which further investigation and developments show to be necessary. Without further elaboration, I must say that the scheme of Sir John Thompson can not be approved if we accept, as justified by the evidence, what Sir Richard Webster said in his very able argument, when he declared that " no gravid female ought to be killed, so far as it can be reasonably avoided," and that " no nursing female upon whose life that of the pup depends ought to be slaughtered or injured in any way." The same eminent counsel also frankly observed: "It seems to me that upon the simple principle that has governed and controlled the game laws of all civilized people, the killing of a female which is about to bring forth its young, or upon whoso life the lives of the young are dependent, is a matter which no Tribunal would indorse by recommendation, and that, therefore, the contrary of that would recommend itself to the mind of this Tribunal." (After the general discussion in conference upon the subject of regulations was concluded—the Arbitrators named by the Governments of Great Britain and the United States having alone participated in that discussion—the matter was taken under advisement by the Arbitrators from France, Italy, and Norway, and they submitted a scheme of regulations for the consideration of the Tribunal. A copy of that scheme is appended to this opinion, and it became the subject of discussion among the Arbitrators.) I confess some disappointment in finding that the majority of the Tribunal do not favor regulations which, in terms or by their necessary operation, will put an end to all pelagic sealing in the waters traversed by these fur seals. It is very much to be feared that the theory of compromise has had more weight than, as I- submit, it ought to have upon the determination of the pending question. A compromise, between conflicting views, which leaves the preservation of this race in doubt, as far as their preservation depends upon regulations, ought not be favored. It seems to me that the supreme object of regulations, the protection and preservation of this race of animals, could not be certainly accomplished except by regulations of the kind proposed by me, with the concurrence of Senator Morgan. 222 But, as our views are not accepted by the Tribunal, the question is presented whether the report made by Baron de Courcel, Marquis Visconti-Venosta and His Excellency M. Gram, shall receive our support. Upon maturereflection, we have concluded to vote in favor of the scheme of regulations recommended by those Arbitrators, although it contains some provisions not acceptable to us. It establishes a zone of 60 miles around the Pribilof Islands, inclusive of territorial waters, within which the taking of seals at any time by the citizens or subjects of either country is to be prohibited. It establishes a closed season, between April 15 and July 31, both inclusive, for all the waters, both of the North Pacific Ocean and of Bering Sea, north of the thirty-fifth degree of north latitude. It allows only sailing vessels to take part in fur seal fishing operations. It forbids the use of nets, firearms, and explosives, in fur seal fishing, with the exception of the shotgun in the North Pacific Ocean prior to April 15. While it permits a new examination, by the two Governments, every five years, of the proposed regulations, to ascertain whether there is any occasion to modify them, the regulations now proposed, if adopted, are to remain in force until they shall have been, in whole or in part, abolished or modified by "common agreement" between the two nations. The features of this scheme that are chiefly objectionable are these: (1) It permits pelagic sealing with shotguns, in the North Pacific Ocean, prior to April 15; (2) it allows pelagic sealing, after July 31, in Bering Sea, with harpoons and spears. Notwithstanding these defects iu the scheme, there is a hope, though not a certainty, that this race may under the regulations so proposed, escape destruction at the hands of pelagic sealers. For that reason, and in the interest of peace between the two nations, Senator Morgan and myself have determined to give our votes in support of this scheme, as the best solution likely to be obtained from the Tribunal of the question of regulations. (Protocol LIV will show the votes in Conference upon the several resolutions, motions, and plans presented by Arbitrators, relating to regulations, and also votes upon different amendments made in the scheme of Eegulations proposed by Baron de Courcel, Marquis Visconti-Venosta and His Excellency M. Gram.) ' 223 nvAiri-ATio>;s proposed by mb. justice maia v\, con<t urn: n in bt senator morgan. Article; 1. No citizen or subject of the United States or Great Britain shall in any manner kill, capture, or pursue anywhere upon the seas, "within the limits and boundaries next hereinafter prescribed for the operation of this regulation, any of the animals commonly called fur seals. Art. 2. The foregoing regulation shall apply to and extend over all those waters, outside the jurisdictional limits of the above-meutioned nations, of the North Pacific Ocean and Bering Sea which are North of the thirty-fifth parallel of north latitude and east of the one hundred and eightieth meridian of longitude from Greenwich. Art. 3. Every vessel or person offending against these regulations may be seized and detained by the naval or duly commissioned officers of either the United States or Great Britain, but they shall be handed over as soon as practicable to the authorities of the nation to which they respectively belongf*who alone shall have jurisdiction to try the offense and impose penalties for the same. The witnesses and proof necessary to establish the offense or to disprove the same found on the vessel shall also be sent with them. Art. 4. Every person guilty of violating these regulations shall, for each offense, be fined not less than $200 nor more than $1,000, or imprisoned not more than six months, or both; and vessels, their tackle, apparel, furniture, and cargo, found engaged in violating these regulations shall be forfeited and condemned. REGULATIONS PROPOSED BY SIB JOHN THOMPSON. Article 1. No sealing except by licenses which are to be issued at two United States and two Canadian ports on the Pacific coast. These licenses to be granted only to sailing vessels, and not to be granted earlier than a date that would correspond with the 1st of May in the latitude of Victoria, British Columbia. Art. 2. Each vessel carrying such liceuse to use a distinctive flag and to keep a record in the official log of the number of seals killed or wounded, and the locality in which the hunting takes place, from day to day; aU such entries to be filed with the collectors of customs on the return of the vessels. Art. 3. The use of rifles and nets in seal fishing is prohibited. Art. 4. The killing of seals to be prohibited within a zone of 30 miles from the Pribylov Islands, and within a zone of 10 miles around the Aleutian Islands. Art. 5. The killing of seals to be prohibited in Bering Sea (east of the line of demarcation adopted in the treaty of cession from Russia to the United States) before the 1st of July and after the 1st of October in each year. Art. 6. The forgoing regulations shall be brought into force from and after a day to be agreed upon by Great Britian and the United States, and shall continue in. operation for ten years fifom the above day; and, unless Great Britain or the United States shall, twelve months before the expiration of the said period of ten years, give notice of intention to terminate their operation, shall continue in force one year longer, and so on from year to year. 224 BEfiULATIONS PROPOSED BY BARON DE COIJRCEL, MARQUIS TISCONTI-TENOSTA, AlfD BIS EXCELLENCY 91. ORAM. Aeticle 1. The Governments of the United States and of Great Britain shall forbid their citizens and subjects respectively to kill, capture, or pursue at any time and in any manner whatever, the animals commonly called fur seals, within a zone of 60 miles around the Pribylov Islands, inclusive of the territoral waters. The miles mentioned in the preceding paragraph are geographical miles, of 60 to a degree of latitude. Aut. 2. The two Governments shall forbid their citizens and subjects respectively to kill, capture, or pursue, in any manner whatever, during the season extending each year from the loth of April to the 31st of July, both inclusive, the fur seals on the high sea in the part of the Pacific Ocean, inclusive of the Bering Sea, which is situated to the north of the thirty-fifth degree of north latitude. Art. 3. During the period of .the time and in the waters in which the fur seal fishing is allowed only sailing vessels shall be permitted to carry on or take part in fur- seal fishing operations. They will, however, be at liberty to avail themselves of the use of canoes or small boats, propelled wholly by oars. Art. i. The sailing vessels authorized to fish for fur seals must be provided with a special license issued for that purpose by its Government and shall be required to carry a distinguishing flag to be prescribed by its Government. Art. 5. The masters of the vessels engaged in fur seal fishing shall enter accurately in their official log book the date and place of each fur seal fishing operation, and also the number and sex of the seals captured, upon each day. These entries shall be communicated by each of the two Governments to the other at the end of each fishing season. Ajrt. 6. The use of nets, firearms, and explosives shall be forbidden in the fur seal fishing. This restriction shall not apply to shotguns when such fishing takes place outside of Bering Sea. Art. 7. The two governments shall take measures to control the fitness of the men authorized to engage in fur seal fishing; these men shall have been proved fit to handle with sufficient skill the weapons by means of which this fishing may be carried on. Art. 8. The regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain, and carrying ou in their canoes, at a small distance from the coasts where they dwell, fur seal fishing. Art. 9. The concurrent regulations hereby determined with a view to the protection and preservation of the fur seals shall remain in force until they have been in whole or in part, abolished or modified by common agreement between the governments of the United States and of Great Britain. The said concurrent regulations shall be submitted every five years to a new examination, so as to enable both interested governments to consider whether in the light of past experience, there is occasion for any modification thereof. 225 FINAL DECISION. Now we, the said Arbitrators, having impartially and carefully examined the said : questions, do in like manner by this our award decide and determine the said questions in manner following, that is to say, we decide and determine as to the five points mentioned in Article VI, as to which our award is to embrace a distinct decision upon each of them: As to the first of the said five points, we, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir Johu Thompson, Marqu is Visconti Venosta, and Mr. Gregers Gram, being the majority of the said Arbitrators, do decide and determine as follows: By the Ukase of 1821, Eussia claimed jurisdiction in the sea now known as the Bering Sea, to the extent of 100 Italian miles from the coasts and islands belonging to her; but, in the course of the negotiations which led to tho conclusion of the treaties of 1824 with the United States, and of 1825 with Great Britain, Eussia admitted that her jurisdiction in tho said sea should be restricted to the reach of cannon-shot from shore, and it appears that, from that time up to the time of the cession of Alaska to the United States, Eussia never asserted in fact or exercised any exclusive jurisdiction in Bering Sea or any exclusive rights in the seal fish- erics therein beyond tho ordinary limits of territorial waters. As to the second of the said five points, we, the said Baron do Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. -Gregers Gram, being a majority of the said Arbitrators, decide and determine that Great Britain did not recognize or concede any claim, upon the part of Eussia, to exclusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary territorial waters. As to the third of the said five points, as to so much thereof as requires us to decide whether the body of water known as Bering Sea was included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Eussia, we, the said Arbitrators, do unanimously decide and determine that tho body of water now known as the Bering Sea was included in the phrase "Pacific Ocean," as used in the said treaty. And as to so much of the said third point as requires us to decide what rights, if any, in the Bering Sea were held and exclusively exercised by Eussia after the said Treaty of 1825, we, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that no exclusive rights as to the seal fisheries therein were held or exercised by Eussia outside of ordinary territorial waters after the Treaty of 1825. As to the forth of the said five points, we, the said Arbitrators, do unanimously decide and determine that all the rights of Eussia as to jurisdiction and as to the seal fisheries in Bering Sea, east- of tho water boundary, in the Treaty between the United States and Eussia of the 30th of March, 1867, did pass unimpaired to the United States under the said Treaty. As to the fifth of the said five points, we, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that the United States has not 11492 15 226 any right of protection or property in the fur seals frequenting the islands of the United States in Beriug Soa, whon such seals are found outside the ordinary three- mile limit. regulations proposed by baron de courcel, marquis yisconti venosta, a5d his excellency ii. gbah, as amended and adopted by a majority of the tribunal. Article 1. Tho Government of the United States and of Great Britain shall forbid their citizens and subjects respectively to kill, capture, or pursue, at any time and in any manner whatever, the animals commonly called fur seals, within a zone of 60 miles around the Pribilov Islands, inclusive of the territorial waters. The miles mentioned in the preceding paragraph are geographical miles, of 60 to a degree of latitude. Article 2. The two Governments shall forbid their citizens and subjects respectively to kill, capture, or pursue, in any manner whatever, during the season extending, each year, from tho 1st of May to the 31st of July, both inclusive, the fur seals on the high sea, in the part of the Pacific Ocean, inclusive of tho Bering Sea, which is situated to tho north of the 35th degree of north latitude, and eastward of the 180th degree of longitude from Greenwich till it strikes the water boundary described in Article I of the Treaty of 1867 between the United States and Eussia, and following that line up to Bering Straits. Article 3. During the period of lame and in the waters in which the fur-seal fishing is allowed, only sailing vessels shall be permittod to carry on or take part in fur seal fishing operations. They will however be at liberty to avail themselves of the use of such canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing boats. Article 4. Each sailing vessel authorized to fish for fur seals must bo provided with a special license issued for that purpose by its Government, and shall be required to carry a distinguishing flag to bo prescribed by its Government. Article 5. The masters of tho vessels engaged in fur seal fishing shall enter accurately in their official log book the date and place of each fur seal fishing operation, and also the number and sex of the seals captured upon eaoh day. These entries shall be communicated by each of the two Governments to the other at tho end of each fishing season. Article 6. The use of nets, firearms, and explosives shall be forbidden in the fur seal fishing. This restriction shall not apply to shotguns when sneh fishing takes place outside of Bering's Sea during the season when it may be lawfully carried on. 227 Article 7. The two Governments shall take measures to control the fitness of the men authorized to engage in fur seal fishing; these men shall have been proved fit to handle with sufficient skill the weapons by means of which this fishing may be carried on. Article 8. The regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain, and carrying on fur seal fishing in canoes or undecked boats not transported by or used in connection with other vessels and propelled wholly by paddles, oars or sails, and manned by not more than five persons each in the way hitherto practiced by the Indians, provided such Indians are not in the employment of other persons, and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur seals outside of territorial waters under contract for the delivery of the skins to any person. This exemption shall not be construed to affect the municipal law of either country, nor shall it extend to the waters of Bering Sea or the waters of the Aleutian Passes. Nothing heroin contained is intended to interfere with the employment of Indians as hunters or otherwise in connection with fur sealing vessels as heretofore. Article 9. The concurrent regulations hereby determined with a view to the protection and preservation of the fur seals, shall remain in force until they have been, in whole or in part, abolished or modified by common agreement between the Governments of the United States and of Great Britain. The said concurrent regulations fehall be submitted every five years to a new examination, so as to enable both interested Governments to consider whether, in the light of past experience, there is occasion for any modification thereof. DECLARATIONS MADE BY THE TRIBUNAL OF ARBITRATION AND REFERRED TO THE GOY- EBNMENTS OF THE UNITED STATES AND GREAT BRITAIN FOR THEIR CONSIDERATION. I. The Arbitrators declare that the concurrent regulations, as determined npon by the Tribunal of Arbitration, by virtue of Article VII of the treaty of the 29th of February 1892, being applicable to the high sea only, should, in their opinion, be supplemented by other regulations applicable within the limits of the sovereignty of each of the two powers interested and to bo settled by their common agreement. n. In view of the critical condition to which it appears certain that the race of fur seals is now reduced in consequence of circumstances not fully known, the Arbitrators think fit to recommend both Governments to come to an understanding in order to prohibit any killing of fur seals, either on land or at sea, for a period of 228 two or tliree years, or at least one year, subject to such exceptions as the two Governments might think proper to admit of. Such a measure might bo recurred to at occasional intervals if found beneficial. III. The Arbitrators declare moreover that, in their opinion, the carrying out of the regulations determined upon by the Tribunal of Arbitration, should be assured by a system of stipulations and measures to be enacted by the two powers, and that the Tribunal must, in consequence, leave it to the two powers to decide upon the means for giving effect to the regulations determined upon by it. BERING SEA TRIBUNAL OF ARBITRATION. OPINION OF SENATOE MOEGAN AT THE CONFERENCE IN PARIS OF THE BEEING SEA TEIBUNAL OF AEBITEATION, CONSTITUTED BY THE TEEATY OF FEBEUAEY 29, 1892, BETWEEN HEE BEITANNIC MAJESTY AND THE UNITED STATES OF AMEEICA, AND COMPOSED OF THE FOLLOWING MEMBEES: BARON DE COURCEL, Senator and Ambassador of France, President of the Tribunals THE RIGHT HONORABLE LORD HANNEN, Of Great Britain; THE HONORABLE SIR JOHN THOMPSON, Minister of Justice and Attorney-General of Canada: MR. JUSTICE HARLAN, A Justice of the Supreme Oourt of the United States; SENATOR MORGAN, A Senator of the "United, States,- MARQUIS EMILIO VISCONTI VENOSTA, ^jj$*>'" Former Minister of Foreign Affairs^ and Senator of the Kingdom of Italy $ And HIS EXCELLENCY GREGERS GRAM, Minister of State of Norway. "WASHINGTON, D. O.: GOVERNMENT PRINTING OFFICE. 1893. THE TRIBUNAL HAVING UNDER CONSIDERATION THE MOTION OF MR. JUSTICE HARLAN, SET FORTH IN THIS PAPER, SENATOR MORGAN SUBMITTED THE FOLLOWING STATEMENTS AND REMARKS. Prom the time when the controversy, which is the subject of this arbitration, assumed the form of treaty engagements between the United States aud Great Britain, it became a matter that invoked the sovereign powers of both Governments, and the rights of the United States and of the subjects of Great Britain were merged in those of each sovereign, as they are fixed by that treaty. Bach Government, in its own way, and according to its own will, without legal responsibility to its citizens or subjects, undertook to control the entire subject iu its capacity as a sovereign. These powers were exerted in their broadest form iu the modus vivendi of 1891, which was fully executed, and in that of 1892, which is made a pap of the Treaty of February 29,1892. In the creation of this Tribunal of Arbitration, and in the definition and limitation of its powers, this arrangement was continued in force. It results from this attitude of the two Governments toward the fur-seals referred to in the treaty that any dealing with them on the high seas by any person lawfully bearing the flag of either Government is an act for which that Government must be responsible to the other Government if any question of responsibility arises. It was quite as competent for the two Governments to prohibit the taking of fur-seals as far to the south as the equator as it was to prohibit it iu Beriug Sea, so far as their citizens or subjects are concerned; and it was as competent for them to'make the prohibition perpetual as it was to confine it to two or more fishing seasons. The two Governments forebore to prohibit pelagic sealing in the North Pacific Ocean pending this arbitration, in the evident hope and belief that the award in this case would be made in time to prevent any seriously mischievous effects of that pursuit, by a decision that would settle the question whether the right and duty of protecting seal life would rest exclusively with the United States, or would require to be accomplished through the concurrent action of both Governments. No power was conferred on this tribunal to protect the seal herd, the preservation of which is the great leading purpose of the arbitration, while the proceedings are in progress. The result is that unrestrained pelagic fur-sealing is now being carried on in the North Pacific Ocean, and if the experiences of the years 1891 and 1892 are repeated in 1893, the destruction of the species is now progressing. with fatal rapidity. In view of these facts, it is of vital importance that the humane and wise purpose of both Governments to preserve and protect these fur- seals should not be defeated by any.objection to the jurisdiction of this tribunal that is based on technical grounds, and is held back by the objector to meet the views of counsel, or others, upon a question of the order of our proceedings. Especially is this true when one of the Governments is solemnly denying to this tribunal the right to consider a vital feature of the subject submitted to the tribunal, which the other government, with equal force and firmness, asserts to be clearly within their competency. Under such conditions no one can foretell with certainty whether the award that this tribunal shall make will result in protecting and preserving seal life, or will only invite, hereafter, a wider and more determined controversy between the two Governments. For my part I regard the present situation as being dangerous and deplorable, and I most earnestly desire that this tribunal shall, in the outset, determine its responsibilities and meet them in whatever way it may think its duties require. To relieve this embarrassing situation Mr. Justice Harlan has offered the following motion: Mr. Justice Harlan moved that the tribunal, before entering upon the matters submitted by the treaty, determine its competency so far as it ' may be involved in the following questions: . 1. Is it competent, under the treaty, for this tribunal to prescribe regulations applicable to such parts of the North Pacific Ocean, outside the jurisdictional limits of the two Governments, as are traversed by the seals frequenting the Pribilof Islands, if, upon the facts, regulations of a&t character are necessary " for the proper protection and preservation of the fur-seal in, or habitually resorting to, Behring . Sea." 2. Is it competent, under the treaty, for the tribunal to prescribe regulations for a | closed season | covering such waters of both Behring Sea and the North Pacific Ocean, outside the jurisdictional limits of the two countries, as are habitually traversed by these fur-seal, and embracing the months during which fur-seal may be. taken in the open seas, and during which " closed season" all hunting of seals in such waters shall be forbidden, provided the facts show that regulations of that character are necessary " for the proper protection and,preserva- tion of the fur-seal in, or habitually resorting to, Behring Sea." The motion of Mr. Justice Harlan that I have just read was submitted to the Tribunal of Arbitration on Saturday, July 15, at the first meeting of the Arbitrators for consultation, after the close of the oral arguments of counsel. This motion relates to two disputed questions as to the powers of the tribunal, which were raised and formally presented by the Government of Great Britain, in its counter case, on February 3,1893, as follows (page 162): The position here taken on the part of Great Britain is that already taken in the original case. It is there stated: "Finally, that while Great Britain has from the first strenuously and consistently opposed all the foregoing exceptional pretensions aud claims, she has throughout been favorably disposed to the adoption of general measures of control of the fur-seal fishery should these be found to be necessary or desirable with a view to the protection of the fur-seals, provided that such measures be equitable and framed on just grounds of common interest, and that the adhesion ofi other powers be secured as a guaranty of their continued and impartial execution." For the correspondence on this point the Arbitrators are respectfully referred to the appendix to the United States Case. A claim is made iu the concluding words of the United States Case that such regulations be "prescribed by this high tribunal as will effectually prohibit and prevent the capture anywhere upon the high seas of any seals belonging to the said herd." Her Majesty's Government respectfully protests that no power to impose on the contracting parties a total prohibition of pelagic sealing is conferred on the tribunal by the arbitration treaty, whether the assent of other nations be or be not made a condition of such prohibition. Article vn empowers the Arbitrators to "determine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend." The power thus conferred relates to the only area in dispute, viz, the waters of Behring Sea eastward of the line of demarcation specified in the Treaty of Cession of 1867, and excludes the supposition that prohibition could have been iutended. I have copied the full statement of the British Government as to its position on this subject, both in the Oase and Counter Case, that we may have the whole subject before us in the connected form in which it is thus presented in the British Counter Case. It will be seen that Great Britain in stating its objections and pro- test against the existence of these powers under the treaty of February 29,1892, and their exercise by the Tribunal of Arbitration, makes no reference to anything except the text of the treaty. No ambiguity in any part of the treaty is suggested and, consequently, Great Britain ha"d no occasion to go outside of the text of the treaty in order to present distinctly the grounds of objection to the power of this tribunal to make such regulations as are stated in the foregoing extracts from the British counter case. This tribunal must, for that reason, and for every reason that could exist in respect to its warrant of authority to take any valid action in this proceeding, look to the text of the treaty alone for its powers. There is, then, no occasion for delay in responding to the objection and protest of Great Britian as above stated, for it is not possible that any further facts can be presented that would throw any light upon the subject. ' This challenge of the powers and authority of the Tribunal of Arbitration, and this protest against their action in determining any regulations to restrain, or prohibit, pelagic fur-sealing outside the waters .of Bering Sea, was not presented as a diplomatic question to the Government of the United States, but is now for the first time presented as a protest to the tribunal, to warn it against the usurpation of unwarranted powers, and a statement that the powers mentioned in the protest are not conferred upon the tribunal. Under no circumstances is it to be assumed that these objectionsto the powers of the tribunal are lightly suggested to excite inquiry or to awaken the attention of the tribunal, coming as they do from a most enlightened and powerful Government, or that their effect will not be felt iu subsequent inquiries by Great Britain into the question whether the tribunal has acted ultra vires, if its award should injuriously affect the interests of the subjects of Great Britain. Moreover, these objections and protests were repeated in the most earnest way by the attorney-general of Great Britain, and by each of the able counsel who assisted him, in the written and oral arguments made before the tribunal. It is not necessary to call attention, in detail, to these arguments, for the record of them is preserved, and their ability and learning is so conspicuous that their influence can not be ignored. These objections to the powers of the Tribunal, as to the regulation of pelagic seahng/were first taken in the British Counter Case. In the original Case, on page 160, in paragraph 19 of the "Becapitu- lation of Argument," the following is the position taken by the British Government: 19.—No regulations affecting British subjects can be established for the protection and preservation of fur-seals in the nonterritorial waters of Bering Sea without the concurrence of Great Britain. That statement is quite in line with the power of this Tribunal to declare either that it accorded with the legal rights of British subjects, or that it did not. That was not an assault on the powers of the Tribunal, but a strong appeal to its judgment on an alleged right of British subjects. The other statement on this subject, found in the British Case, I have already quoted, but will repeat. It is taken from an outline of argument on page 9, and is as follows: Finally, that while Great Britain has from the first strenuously and consistently opposed all the foregoing exceptional pretensions and claims, she has throughout been favorably disposed to the adoption of general measures of control of the fur-seal fishery, should these be found to be necessary or desirable with a view to the protection of the fur-seals, provided that such measures be equitable and framed on just grounds of common interest, and that the adhesion of other powers be. secured as a guarantee of their continued and impartial execution. The objections raised in the British counter case (above cited) to the jurisdiction of the Tribunal of Arbitration are far more urgent in their demand for diplomatic settlement than the question, that was settled in that way, relating to the matter of the determination of Great Britain to abide by and perform the award of the tribunal. If, however, the Tribunal of Arbitration shall determine to proeeed to a final award without referring this vital question, as to their powers, to the two Governments for their further consideration they must incur the risk of having their award repudiated by the one Government or the other. The ease of the United States is based in a large part, if not most largely, upon the fact that the Tribunal of Arbitration has the powers that are indicated in the two propositions stated in the motion of Mr. Justice Harlan. Much more than half of the testimony offered and cited by the counsel for, the respective Governments was adduced in elucidation of the. subject of the regulations that are proper for the protection and preservation of fur-seals in the North Pacific Ocean. It is, taken together, an immeuse mass of facts and expert opinions. Thei argument of counsels on the part of the United States were addressed at great length and with untiring industry and the highest 8 ability to point out the powers of this tribunal to regulate pelagic fur- sealing in the North Pacific Ocean and in Bering Sea. No motion was made or intimated on the hearing that this tribunal should refuse to admit such evidence on the ground that it had no jurisdiction to make regulations to protect and preserve the fur-seals in the North Pacific Ocean. After all this, is it a reasonable expectation that the United States will accept an award that ignores the greater part of its case? Can we assume that the United States has consented to a treaty, and made this earnest effort to present its rights in accordance with it, and will be content that this tribunal shall find that it has no power even to consider those rights? Moreover, we are called upon to decide that the powers of the tribunal to regulate pelagic sealing are confined to the area of Bering Sea; and to base that finding on the alleged fact that this is "the only area in dispute." To find this alleged fact we are invited to quit the text of the Treaty and to go into the diplomatic correspondence that led to its adoption for our authority so to construe that instrument. That process of construction might be adopted by this tribunal as a means of clearing up an ambiguous expression in the Treaty, under which a right is claimed in favor of either party, but no such proceeding can be resorted to in order to limit or enlarge our powers as a Tribunal of Arbitration. That would be to make a treaty by construction, and then to proceed to administer rights under it. Much less can this tribunal create its powers by merely declaring them. Our powers are to be found in the clear meaning of the text of the treaty, or they do not exist. If we find them in the treaty we can not refuse to exercise them. I will not now present an argument in support of the existence of tlie powers stated in the motion of Mr. Justice Harlau further than to make some quotations from the text of the treaty, premising that I understand it to be fully admitted ou all hands that a great and leading purpose of both governments in making this treaty is to protect and preserve the fur-seals in, or that habitually resort to, Bering Sea. The fur-seals to which this treaty relates comprise a family or herd of animals that are in Bering Sea, or habitually resort to those waters and the islands in that sea. As the protection and preservation of these animals is the real result sought to be accomplished by the treaty, the only accurate method of defining the scope of the powers 9 of this tribunal for their protection, as to its application, was to describe the herd; but the restrictions upon the limits of the jurisdiction are defined by the territorial boundaries of the two countries that own all the shores and islands that are washed by the waters in which these animals are found that resort to Bering Sea. In the light of these facts, disclosed on the face of the treaty, the following quotations from the treaty make it clear that this tribunal possesses the powers stated in the motion of Mr. Justice Harlan: Article I. The questions which have arisen between the Government of Her Britannic Majesty and the Government of the United States concerning the jurisdictional rights of the United States in the waters of Bering Sea, and concerning also the preservation of the fur-seal in or habitually resorting to the said sea, and the rights of the citizens and subjects ofi either country as regards the taking of fur-seal in or habitually resorting to the said waters, shall be submitted to a tribunal of arbitration, to be composed of seven arbitrators. • •••••• Article in. The printed case of each of the two parties, accompanied by the documents, the official correspondence, and the evidence on which each '■relies, shall be delivered in duplicate to each of the arbitrators and to the agent of the other party as soon as may be after the appointment of the members of the tribunal, but within a period not exceeding four months from the date of the exchange of the ratifications of this treaty. Article IY. Within three months after the delivery on both sides of the printed case either party may, in bke manner, deliver in duplicate to each of the said arbitrators and to the agent of the other party a connter case and additional documents, correspondence, and evidence, in reply to the case, documents, correspondence, and evidence so presented by the other party. Article VI. In deciding the matters submitted to the arbitrators it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon «ach of said five points, to wit: 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States ? ###### 5. Has the United States any right, and, if so, what right, of protection or property in the fur-seals frequenting the islands of the United 10 States in Behring Sea when such seals are found outside the ordinary 3-mile limit f Article VH. If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Eegulations for the proper protection and preservation of the far- seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination, the report of a Joint Commission, to be appointed by the respective Governments, shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Regulations. Article IX. # * * * • • • Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, all the facts having relation to seal life in Behring Sea, and the measures necessary for its proper protection and preservation. The four Commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments, and they shall also report, either jointly or severally, to each Governmenton any points on which they may be unable to agree. These reports shall not be made public until they shall be submitted to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators can not arise. Article XIY. The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration as a full and final settlement of all the questions referred to the Arbitrators. MODUS VIVENDI OF 189$. Article I. Her Majesty's Government will prohibit, during the pendency of the arbitration, seal killing iu that part of Behring Sea lying eastward of the line of demarcation described in Article 1, of the Treaty of 1867 between the United States and Russia, and will promptly use its best efforts to ensure the observance of this prohibition by British subjects and vessels. Article II. The United States Government will prohibit seal killing for the same period in the same part'of Behring's Sea and on the shores and islands thereof the property of the United States (in excess of seven thousand five hundred to be taken on the islands for the subsistence of the natives), and will promptly use its best efforts to ensure the observance of this prohibition by United States citizens and vessels. 11 Article III. Every vessel or person offending against this prohibition in the said waters of Behring Sea outside of the ordinary territorial limits of the United States may be seized and detained by the naval or other duly commissioned officers of either of the High Contracting Parties, but they shall be handed over, as soon as practicable, to the authorities of the nation to which they respectively belong, who alone shall have jurisdiction to try the offence and impose the penalties for the same. The witnesses and proof necessary to establish the offence shall also be sent with them. Article V. If the result of the arbitration be to affirm the right of British sealers to take seals in Behring Sea within the bounds claimed by the United States under its purchase from Russia, then compensation shall be made by the United States to Great Britain (for the use of her subjects) for abstaining from the exercise of that right during pendency of the arbitration, upon the basis of such a regulated and limited batch or catches as in the opinion of the arbitration might have been taken without an undue diminution of the seal herds; and, on the other hand, if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens, and lessees) for this agreement to limit the island catch to seven •thousand five hundred a season, upon the basis of the difference between this number and such larger catch as in the opinion of the Arbitrators might have been taken without an undue diminution of the seal herds. There are no italics in the text I have just quoted. The regulations proposed by the United States for adoption by the Tribunal of Arbitration are in keeping with the suggestions contained in the motion presented by Mr. Justice Harlan; but, while the British Government denies to the tribunal the powers therein stated, the regulations offered by that Government for our adoption would necessarily depend on the assertion of the same powers. They are as follows, the regulation numbered 8 having been presented to the tribunal and then withdrawn: regulations. 1. All vessels engaging in pelagic sealing shall be required to obtain licenses at one or other of the following ports: Victoria, in the province of British Columbia. Vancouver, in the province of British Columbia. Port Townsend, in "Washington Territory, in the United States. San Francisco, in the State of California, in the United States. 2. Such licenses shall only be granted to sailing vessels. 3. A zone of 20 miles around the Pribilof Islands shall be established, within which no seal hunting shall be permitted at any time. 4. A close season from the 15th of September to the 1st of July shall 12 be established, during which no pelagic sealing shall be permitted in Behring Sea. 5. No rifles or nets shall be used in pelagic sealing. 6. All sealing vessels shall be required to carry a distinguishing flag. 7. The masters in charge'of sealing vessels shall keep accurate, logs as to the times and places of sealing, the number and sex of the seals captured, and shall enter an abstract thereof in their official logs. 8. Licenses shall be subject to forfeiture for breach of above.regula- tions. Whence comes the power of this tribunal, asserted in this programme, to bind Great Britain and the United States to enact laws requiring all vessels engaged in pelagic sealing to obtain licenses at one or the other of the following ports, viz: Victoria, Vancouver, Port Townsend, and San Francisco? All of these are seaports on the Pacific Ocean, and San Francisco is below the waters in which fur-seals are found or hunted. To make this regulation the tribunal must go 2,000 miles south of Behring Sea, with its authority, and enter the seaports of both Governments. Our authority, thus conceded, to make regulations to protect and preserve the fur-seals in or habitually resorting to Bering Sea, must not only enter within the ordinary 3-mile limit of each of these sovereign powers, under this programme, but, while there, it must destroy the pelagic hunting rights of all owners of steam vessels and all the persons who hunt seals in canoes, by denying to them a license for pelagic sealing. We must, while in these ports, disarm pelagic seal hunters of rifles and nets while leaving to the licensees the use of the deadly double-barreled shotguns, repeating pistols, and swivels. While there we are expected to regulate navigation by creating a new international flag for the benefit of the four ports that are given the monopoly, by these proposed regulations, of outfitting all licensed sealers and, consequently, of handling the great spring catch. Then when we are engaged in establishing a close season during which no pelagic sealing shall be permitted in Bering Sea, we must also fix the boundaries of that sea, not yet fixed by any law or treaty. Otherwise, we can not define the boundary that shall separate innocence from guilt in pelagic sealing. Inside Bering Sea, we must fix and demark a zone of 20 miles around the Pribilof Islands within which the seals shall live and pelagic sealing shall perish. None of these various regulations—which would destroy some private 13 rights of the people and build up others; would create monopolies for some towns, to the great disadvantage of others; would build up some railroads and cripple others—are so clearly within the power of this tribunal to protect and preserve the fur-seals as the determination of a close season in the Pacific Ocean, or of the prohibition of all pelagic sealing would be. The British Government, through its attorney-general, can give authenticity to any plan we may adopt for carrying out the purposes of the treaty, so as to bind that Government at least, and although the regulations thus presented to the tribunal may involve an award by the tribunal that would be ultra vires, if they should be adopted, the award would have the valid and binding consent of Great Britain. The United States can not be thus pledged to any consent decree and must accept what we award without question, except that the tribunal must act within its just powers under the treaty. The regulations thus authentically proposed by Great Britain, being entirely inconsistent with its contention that the powers of this tribu- 'nal are confined to the area of Bering Sea, it is justly to be considered that the objection to the exercise of a more extended field of jurisdiction is waived, or abandoned, by that Government. The examination and decision of the questions of the right of property in the fur-seals in, or habitually resorting to, Bering Sea, and the right to protect them claimed by the United States necessarily extends the jurisdiction of this tribunal on that question to the North Pacific Ocean. In every important feature the case is an entirety, and all its parts must be construed in pari materia. It is beyond my comprehension that the jurisdiction of the tribunal should require us to make an investigation into a great variety of facts and the laws governing the rights of the United States as to property and protection in the Pacific Ocean, and that, when the protection of its rights is reached, the jurisdiction of the tribunal should suddenly cease. Yet, if the objection of Great Britain is still urged, it is apparently the only method of avoiding a very embarrassing condition, that the Tribunal of Arbitration should present to both Governments the present attitude of the question and ask them, by a formal agreement, to remove the difficulty. Mr. Justice Harlan and .myself have stated to the tribunal our conviction that the United States would regard the decision of the tri- 14 bnnal as being in violation of the plain provisions of the treaty if they should hold that they have no power under the treaty to extend whatever regulations they may find to be necessary for the proper protection of the fur-seals into the Northern Pacific Ocean. As we fully concur in that view of the treaty and believe that the seal herd will be speedily destroyed if proper regulations for their protection in Behring Sea and in the North Pacific Ocean are refused, we feel compelled to seek a full opportunity to present the subject to our colleagues without the embarrassment that must attend its investigation in the presence of a pending and undecided objection on the part of Great Britain that we have no right to consider the subject of regulations applicable to the North Pacific Ocean, because this tribunal has no power to award any regulations to apply outside the area of Behring Sea. We believe that the proper way and, indeed, the only way to secure an unembarrassed consideration of this subject on its merits is to take up the objection of Great Britain to the jurisdiction of this tribunal and dispose of it. I believe that every consideration of just and proper procedure in this case requires that this vital question as to the powers of this tribunal should be disposed of before any other question in the case is taken up. The questions of extending regulations beyond the area of Behring Sea into the North Pacific Ocean and of prohibiting pelagic sealing in Bering Sea can never be fairly considered upon their merits under the pressure of a pending objection made by Great Britain that, whatever convictions an Arbitrator may have as to the necessity of such regulations, the treaty forbids such action by the Tribunal of Arbitration. The justice of the request that this question shall be disposed of in limine, aside from its logical propriety, is manifest, when it is considered that Great Britain has made this serious objection to the powers of the tribunal and yet insists that its objection shall not be heard until the case has been heard and decided, in all other respects, upon the merits. Can it be justly claimed that, if the case should be decided in favor of the contention of Great Britain on every other point, on the merits, that Government could at its pleasure, permit or prevent regulations from being adopted applicable to the North Pacific Ocean, however necessary they may be, on the ground taken in its objection to the jurisdiction of this tribunal that it has no power under the treaty to make such regulations ? 15 It should be determined, now, whether, in the judgment of this tribunal, a power of this dangerous magnitude can be wisely or justly left in the control of either party. If this power to extend regulations to include an area in the North Pacific Ocean does not exist, as Great Britain asserts- that it does not exist, no concession on the part of that Government could create the power, without the consent of the United States. It would require a change in the treaty to create that power if it does not exist. The only ground that can be taken, in the situation presented by the objection of Great Britain, is that the Tribunal of Arbitration will decide the question and leave it to the respective Governments to determine what course they will pursue in view of the decision. It will result in this, at last, for they are sovereign Governments and there are none who can compel either of them, by any peaceful means, to accept a>nd perform an award which they may believe violates the treaty under which this tribunal is acting. I disclaim all authority to speak for the United States and I deny the right of any other person to bind that Government by any declaration or act that is not clearly authorized by the treaty. I only speak for myself when I state my conviction, that the objection urged by Great Britain to the power of this tribunal to make regulations to protect the fur-seals, which shall have full operation outside of Bering Sea, if it is sustained by this tribunal, will destroy a leading and most important feature of the treaty. From some observations of Lord Hannen, when Mr. Justice Harlan presented the propositions I have been discussing, I find that his objection to the second proposition is to some extent based on the point that there is iu that proposition a delimitation of the area of waters " in the Pacific Ocean, over which the regulations, if adopted, will extend. I understand Mr. Justice Harlan to say that such is not his intention, or his construction of that resolution. Now, in order that the question of the power of the tribunal to make regulations that will extend to the Pacific Ocean, outside of Bering Sea, and outside of territorial limits, may be presented in a more distinct form, if possible, I will offer the following as a substitute for the two propositions offered by Mr. Justice Harlan, which, I think, covers the substance of both the propositions he has offered, and I hope it may remove the objections that are made by Lord Hannen to the form of those propositions: 16 "This Tribunal of Arbitration is empowered by the treaty of February 29,1892, between the United States and Great Britain, to determine what concurrent regulations are proper to be adopted and enforced by the action of the respective Governments, applicable to their respective citizens or subjects, outside of their respective territorial limits and outside of Bering Sea, for the protection and preservation of fur-seals in, or habitually resorting to, Bering Sea." At the conclusion of the foregoing remarks Mr. Justice Harlan accepted this declaration, offered by Senator- Morgan, as a substitute for those proposed by him, and moved the adoption of the same. A QUESTION BEING UNDER DISCUSSION AS TO THE PROPER ORDER IN WHICH THE MATTERS SUBMITTED TO THE TRIBUNAL FOR EXAMINATION SHOULD BE TAKEN UP AND DISPOSED OF, AND AS TO THE GENERAL POWERS AND DUTIES OF THE TRIBUNAL, SENATOR MORGAN MADE THE FOLLOWING PRELIMINARY REMARKS TOUCHING THE SAME: The subject with which the tribunal is to deal is a practical one of the highest importance. On the part of Great Britain a claim asserted,1 as a sovereign power, on behalf of her subjects, to the right of pelagic hunting of fur-seals in, or habitually resorting to Bering Sea, iu all the waters of the North Pacific Ocean that are not included within ordinary territorial limits, without any restriction, or qualification, as to the time, place, or manner of their destruction. In the Case of Great Britain, as it is stated to the Tribunal of Arbitration in conformity with tho requirements of the treaty, this claim is presented in the broadest form and the present method of X^elagic hunting is-justified as being within that claim of right, under international law. Great Britain has cited the principles of international law, and certain analogies relied upon to support her case. The Government of the United States, under the same requirement of the treaty, has presented its case upon the law and evidence in like manner. The claim of the United States is made in the name and on behalf of that Government, which asserts that it is the sovereign owner of the fur-seals that habitually resort to the waters of Bering Sea and to the islands within that sea that are east of the water boundary between Russia aud the United States of America, and that it owns these fur- seals as property, as a source of revenue, and as an instrumentality of government. In one aspect of this claim, the ownership of the animals is alleged to be complete. In another aspect, the alleged ownership is stated as a right to have and enjoy the usufruct of these seal herds, for the sup- 17 11495 m 2 18 port of a legitimate industry established by the United States on the islands of St. Paul and St. George, in Bering Sea. Two distinct " cases" are thus presented to the Tribunal of Arbitration for consideration and decision, and, while they are not consolidated, as cross actions are often set down by the courts as comprising one case, they are to be heard at the same time and the same evidence may be used. Each " case" must stand upon its own merits, and it does not necessarily result that a decision in favor of either Government upon the case presented by it is a denial of all that is claimed in the case of the other Government. While the award to bo made by the Tribunal of Arbitration may affirm in whole or iu part the claims so asserted by either Government, it is not a finding in the nature of a recovery of property or judgment for money, as damages or otherwise, in favor of either party as against the other, but is an assent by both to a settlement of controversies between them' in accordance with the terms of the award which the Tribunal of Arbitration shall make. When the award is so made, the result is the same as if both Governments had stipulated ill the Treaty, in terms, that which shall be exxjressed in the award. In this sense, and to this effect, whatever shall be declared in the ■ award will be a finding in favor of both Governments. No rule is given or intimated in the treaty to indicate whether the tribunal is to take the international law, or a just view of the comity of nations, or the peculiar relations of the two Governments to this subject, as a guide to their decisions, or whether the rigid rules of law, or equitable considerations are to govern, and whether the tribunal is held to an unbending rule of law, or whether there are exceptions to it growing out of long usage or governmental necessities which should qualify the right claimed by either party. Another important consideration was in view when the treaty was made, namely, the necessity for a declaration on their part, reaching beyond the mere question of the interests of the United States and the subjects of Great Britaiu in the Alaskan herd of fur-seals, that the ultimate assertion of governmental control over the subject by all the countries to which fur-seals resort in their breeding season should be established by the consent of the United States and Great Britain. It was a just'expectation that all such countries would find, in the results of this investigation, sufficient reasons for adopting the rules. 19 or principles, that this tribunal would establish for the protection of fur-seals. The destruction of the fur-seal species in the southern hemisphere, in a commercial sense, had already resulted from indiscriminate slaughter on land and sea. The slaughter had been conducted as a matter of right upou the idea that none of those countries had treated the fur-seals as domestic animals, or animals that were attached to the soil, or as domesticated animals entitled to protection as property, but had permitted them to be treated as wild animals, subject to capture by everyone at his pleasure. The people of the United States and of Canada, and of many other countries, had exercised this assumed right of capture of fur-seals in the Antarctic Seas until within a recent period. After the southern herds had been virtually destroyed, the colonization of Europeans in extreme southern latitudes led to the investigation of this subject and the enactment of laws for the protection of fur- seals in the hope that their numbers could be thus restored. These efforts are most noteworthy in the British colonies of New Zealand and the Cape of Good Hope. These legislative provisions were tentative rather than conclusive in their operation upon the right of pelagic hunting, within the prescribed limits of protection, by the people of foreign countries. While foreigners were included in the general terms of the statutes enacted to protect fur-seals, room was left for the question whether they could be rightfully included within the protection of the international law if the pelagic hunters chose to make objection. In the absence of such statutes, the right of pelagic sealing was not questioned, except in seas and bays that were claimed as being closed for such purposes; such as Behring Sea, the sea of Okhotsk, and the waters in and around the Japanese archipelago. By insisting upon xieculiar rights and powers of protection over fur- seals in such waters Russia and Japan had, in a large measure, preserved their herds from destruction. But there was then, and until recently, no one to assert, in the name of any Government, that pelagic sealing was an invasion of national interests, or rights of property, in fur-seals. The question was not raised by any serious dispute, by other powers, of the right of protection of fur-seals as asserted by Russia; and her policy stood opposed to the alleged right, in a negative way rather than by an active assertion atteuded with serious controversy or force. Such respect was paid to her well-known attitude on the sub- 20 ject that no occasion offered to test the question whether a right of pelagic hunting existed, under the laws of nations, which was superior to Russia's right to protect the fur-seals against trespassers on the high seas, or within Bering Sea, when they were found more than 3 miies from her coasts and islands. This question was never, in fact, raised in any practical way as a matter of international dispute, until the present controversy between the United States and Great Britain. The question is, therefore, entirely new, without any actual precedent for its control, and also without analogy for its illustration, because no other animals yielding valuable products to commerce have the habits ofi the fur-seal, and none are compelled by the necessities of existence to place themselves so entirely within the dominion of man. This award, therefore, dealing with questions that are entirely new, will complete the treaty between these two great powers, and establish between them fixed rules of conduct in respect to the protection and preservation of fur-seals in waters outside the limit of the jurisdiction of the respective Governments, j These rules will be a new compact of international agreement, based on rights and duties that are, as yet, without accurate definition and without regulation. The interests of peace and good will being the great moving causes, and the.benefit of mankind and. the requirements of humanity being included in the results of this arbitration, it is seen at once that it was necessary and proper to entrust these great powers to a Tribunal of Arbitration having very "broad discretion and liberty of action. The proper understanding of the scope and purpose of this treaty is to be gathered, also, from the diplomatic correspondence that attended its negotiation, and from the various propositions and agreements that took final shape in the text of the treaty. The agreement between the two Governments in the convention treats the preservation and protection of the seal herds in a broad and rational way, and assumes that both Governments will freely and cordially exercise their powers for that purpose. This is not a controversy in which the award will fix tho title to specific chattels in either of two claimants, or give compensation, in damages, as for the conversion of such chattels. It is' not a lawsuit between the United States and Great Britain. There are no special issues joined between them. All the questions are put to the tribunal interrogatively, and the award will settle principles and regulations 21 that will need to be enforced by the concurrent action of the two Governments. There can not be any self-executing powers included in the award. The rights and duties that are ascertained by the award will remain to be enforced by the sovereign powers of the Governments concerned. The right of property in a herd of seals within the meaning of this treaty can not depend on the question whether every animal of the herd was born on land belonging to the claimant. If this question could arise, in any practical sense, it could only arise between Russia or Japan and the United States, and not between Great Britain, claiming no seal herds, aud the United States, that claims a herd that habitually resorts to the Pribilof Islands. The questions submitted in this treaty for arbitration do not hinge upon the place of nativity of individual seals, but relate to those seals that resort habitually as herds to the islands of the United States, and they turn upon that fact as to their identification. This question of the intermixing of the heras with those of Russia was not raised in the correspondence that led up to this treaty, nor is it referred to in the treaty, unless it is included in the inquiry as to the right of property in the seals. That inquiry relates to the right of property in the seals in, or resorting to, Bering Sea, without reference to the place of their nativity. If they have that habit, Great Britain and the United States have agreed in this treaty that such a resorting to Bering Sea is the fact that identifies them as the subject of the award to be rendered in this case. If the award is that the United States have a property in the seals so resorting to Bering Sea, or found in that sea, it fully covers the question that the Arbitrators are required to settle on the subject of property in seals. If there are other questions beyond this as to the title of the United States to individual seals, while living, the decision of them does not fully dispose of any right claimed by Great Britain to kill them when found singly or in small parties far out in the ocean; nor will it diminish any right claimed by the United States to protect and preserve them if they can be identified asibelonging to the Alaskan herd, though they may have been born upon Russian soil. All the rights claimed by the United States in this treaty relate to the protection and preservation of the lives of seal herds. All the rights claimed by Great Britain and so submitted for arbitration, relate solely to the right of the destruction of individual seal life in order to secure the pelts. There is no right of property in any single, living seal. 22 whether it is found on shore or swimming in the sea, that is in controversy between these Powers under the provisions of this treaty. The controversy submitted to the Arbitrators is in respect to tho preservation of an entire body of fur-seals. It is impossible that the Arbitrators could declare in favor of Great Britain, on the case here presented and upon the questions submitted in the treaty, that living seals fouud at sea are the property of that Government or of its subjects. The case submitted by Great Britain is a general and special denial of all property in seals until they are killed. But the Arbitrators can make an award of the " rights of property" in a herd of living seals to the United States, because such rights are included in the submission and are claimed in the case of the United States. The United States claim the property interest in the seals under this arbitration, not for their justification in destroying them at sea or on the land, but for the sole purpose of protecting them against pelagic hunting, while Great Britain denies all such property rights until the seals are killed, and claims the right to kill them anywhere that a British ship can lawfully go. And the treaty, being framed to settle these claims, on its face admits that, if the seals resort to Bering Sea, that fact presents fully and sufficiently the question of the property right on which the claim of the United States to protect and preserve the seals is to be founded, and leaves the question to be settled by the Arbitrators whether there is vested in the United States, as between these parties, a right of property in the seals that are in, or habitually resort to Bering Sea. The distance of 150 miles from the eastern coasts of the North Pacific Ocean is the extreme limit, to the westward, of pelagic hunting in that part of the ocean that borders on the North American continent. Between February and June, when the seals are approaching Bering Sea, the Japanese and Russian herds are moving along the coasts of Japan and Russia, not less than 6,000 miles away-from the Alaskan 1 herds. If any "stray Russian or Japanese seals have found their way across the Pacific Ocean to the American coast and into the Alaskan herd, that fact could not affect any right of property that the United States may have in the body of the herd. And when that right of property is asserted for the protection and preservation of the eslrays it is sufficient to justify all proper efforts aud force that may be requisite to that end. Even though Russia or Japan may have a higher property 23 right than that of the United States in individual seals, yet, if their seals are gone estray and are found in the Alaskan herds, the United States, if they own those herds, or have the power to protect them, may also lawfully and justly protect the estrays against everybody except the owner. Two questions of right are presented in point 5 of Article VI, viz: The right of property in the fur-seals and the right to protect them. These rights are not identical under all circumstances. The right to protect property may exist in one who neither has nor claims to have any absolute ownership of the property, and this right has a peculiar force and value on the high seas, where the exposure of property to destruction is great and the persons are few who may be able to protect and preserve it. The right to protect property is an element of its ownership, but that right does not always depend on ownership. In this treaty care is taken to submit to the Arbitrators the separate rights of property and of protection as to the seals in or resorting to Behring Sea. It must be admitted that these questions in all their bearings are entirely new. It is their novelty that has led to this Arbitration. H they had been capable of solution under the rules and precedents of international law it must be assumed that two great Governments, equally desirous to protect and preserve the fur-seals, would have readily agreed as to which of them was charged with or entitled to perform that duty. In the absence of such rules and precedents of international law it was wise and just to submit these questions, as new ones, to arbitration. The fact that both Governments are required by the treaty "to cooperate in securing the adhesion of other Powers to such Regulations" as shall be established by the tribunal, is an indication that is really conclusive of the fact that they both expected that the award might be based on new principles or on newly stated exceptions to old rules. If the award could not properly be based on well-settled principles of international law, the reason for securing the adhesion of other powers would be obvious, whereas that would be an unnecessary act if the award could be based only upon the concrete principles of international law, for other nations must be understood as knowing and abiding by the international law. Why should they be asked to give their adhesion to an award that would hold the United States and Great Britain only to a faithful observance of international law! 24 This is a controversy between two Governments that hold a peculiar relation to the fur-seals in the eastern waters of the North Pacific Ocean. The peculiarities of that situation must, largely, control or modify the equitable rights of the parties in their dealings with the subject and in the establishment of regulations to secure their obedience to the rules of right and justice that pervade all laws. The two Governments resorted to arbitration for the peaceful settlement of their controversy, because the strict and unbending rules of international law, or their meager treatment of such subjects, were not equal to the emergency of the case, nor offered a precedent for the satisfactory adjustment of the right claimed by the United States. The settlement of this matter does not, necessarily, establish any rule of international law, or declare any such rule. It will establish a rule, inter partes, which they, by agreement, may rescind at pleasure. It can only become a rule of international law by the general adhesion of other powers. So, I hold that the duty is included within the scope of the powers of this tribunal to determine what are the just and equitable powers and rights of the respective Governments that should be exercised severally, or concurrently, in maintaining and executing the avowed purpose of both, to protect and preserve the fur-seals. The question of the right of property, or protection, has this relation, and none other, to the great and novel subject submitted to this tribunal. OPINION DELIVERED BEFORE THE TRIBUNAL OF ARBITRATION BY SENATOR MORGAN, JULY 22, 1893, AS TO THE PROPER TIME FOR THE CONSIDERATION OF THE HISTORICAL- QUESTIONS SUBMITTED TO THE TRIBUNAL. July 20,1893, Mr. Morgan submitted the following answers to points 1, 2, 3, and 4, of Article VI of the treaty, for the consideration of the tribunal: 1. From the time that Russia first discovered and occupied Behring Sea and the coasts and islands thereof until she ceded a portion thereof to the United States she claimed the seal fisheries in Behring Sea, and exercised exclusively the right to the usufruct and to own the product of such seal fisheries, and to protect the same against being interfered with in those waters by the people of any other country; and also the exclusive jurisdiction that was found necessary for those purposes; and also the exclusive jurisdiction to regulate the hunting of fur- seals in those waters and to grant the right of hunting them to her own subjects. 2. The attitude of Russia toward the fur-seal fisheries in Behring Sea, as described above, being known to Great Britain, she acquiesced in the same without objection. 3. The rights of Russia, as above stated, remained unaffected by the treaty of 1825 between Russia and Great Britain,, and were held aud exclusively exercised by Russia after the date of said treaty as they were before said date. The phrase "Pacific Ocean," as used in said treaty, did include the body of water now known as Behring Sea. 4. All the rights of Russia, as described in point 4 of Article VI of the treaty of February 29,1892, passed unimpaired by the treaty of March 30, 1867, between Russia and the United States. The following statements submitted to the tribunal by Lord Hanneu and by Baron Courcel, respectively, while coinciding in the same findings as to the conclusions drawn from the facts of history, differ as to the facts upon which their respective conclusions are rested. STATEMENT BY LORD HANNEN, SUBMITTED JULY gl, AS ANSWERS TO QUESTIONS CONTAINED IN ARTICLE VI OF THE TREATY. To question 1.—Russia never exercised exclusive jurisdiction m Behring Sea, outside the ordinary 3-mile limit. In 1821 she asserted exclusive jurisdiction over a part of Behring Sea, viz: For 100 miles along its coasts, by imperial ukase. But she withdrew the assertion of jurisdiction expressed iu the ukase, on the demand of Great Britain and the United States, and never afterwards asserted or exercised such jurisdiction. 25 26 Russia never exercised exclusive rights in the seal fisheries in Behring Sea outside the aforesaid limit. In 1821 she claimed, by the aforesaid ukase, exclusive rights of all kinds (as included in her claim of jurisdiction), extending for 100 miles along the coasts of Behring Sea; but she withdrew the assertion on the demand of Great Britain and the United States, and never afterwards asserted or exercised such rights. The only exclusive right which Russia subsequently exercised as to the sea was the ordinary right conceded by international law for 3 miles from land. To qitsstion2.—Great Britain never recognized or conceded any claims of Russia of jurisdiction as to the seal fisheries, except as to the ordinary 3-mile limit. To question 3.—The body of water known as Behring Sea was included in the phrase "Pacific Ocean,"asused in the treaty of 1S25 between Great Britain and Russia. Russia neither held nor exercised any rights in Behring Sea after the treaty of 1825, save only such rights as were allowed to her by international law within the ordinary 3-mile limit. To question 4.—That-Russia having had no rights as to jurisdiction or as to the seal fisheries in Behring Sea, excepit as to the lands ceded and the ordinary 3-mile limit bordering the same, it follows that no other rights passed to the United States under the treaty between the United States and Russia of March 30,1867. STATEMENT PRESENTED BY BARON DE COURCEL, JULY M, IN ANSWER TO POINTS 1, 2, S, AND 4 OF THE TREATY. I. The extent of authority asserted and exercised by Russia in Behring Sea, previously to the negotiations which led to the conclusion of the treaty of February 16-28, 1825, between Russia and Great Britain, does not appear with historical certainty, but it results from a dispatch of Count Nesselrode to Count Lieven, in date of St. Petersburg, the 26th of June, 1823, communicated to the London cabinet on the 14th of August ensuing, that the surveillance of the commanders of the Imperial Russian navy was to be exercised henceforth, under their instructions, in the region of Behring Sea over an extent of water that should be within cannon shot from shore; and although those instructions were stated as being provisional in the dispatch of Count Nesselrode, it does not appear that since that time up to the time of the cession of Alaska to the United States the Imperial Government of Russia exercised or asserted in Beliring Sea, outside of the limit aforesaid, any exclusive jurisdiction either of a general character or in connection with the seal fisheries. II. Great Britain has not recognized or conceded any jurisdiction of Russia as to seal fishery beyond the limit of territorial waters. III. The body of water now known as the Behring Sea was included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia, and after said treaty Russia neither held nor exercised in the Behring Sea, outside of territorial waters, any exclusive rights. IV. All the rights of Russia as to the jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary in the treaty between UnitedMtates and Russia of the 30th of March, 1367, passed unimpaired, to the United States under that treaty. 27 These variances, if not disagreements, as to the historical inquiries submitted to the tribunal in the first four points of Article VI of the treaty, in my judgment, furnish a conclusive reason in support of a motion I intend to submit for the postponement of a vote on points 1, 2, 3, and 4 in Article VI of the treaty, until the tribunal shall have reached a conclusion as to the rights of the United States, as to property and protection in the fur-seals. • On July 22, when the subject of the answers to be made to points 1, 2, 3, 4, of Article VI of the treaty, was under consideration, I had the honor of submitting the following motion and remarks: " I move that no decision be made upon the first four points in Article VI of the treaty, at this time, but that this historical matter belaid aside until the tribunal has considered and decided the legal questions submitted for award in the treaty, in whatever order may be adopted. I will state the grounds" for this motion: "Prior to March 30,1867, Russia owned all the coasts and islands washed by the waters of Bering Sea, and yet owns all west of the water boundary fixed in her treaty of that date with the United States. "Russia has the same rights of jurisdiction in the western portion of Bering Sea that the United States-has in the eastern portion. If we could reach an agreement as to what those rights are it would be far better, if it was possible, that it should not be formulated into an award in the absence of Russia from this hearing. "Russia alone can state what exclusive jurisdiction she asserted and exercised and what exclusive rights in the seal fisheries she asserted and exercised in the sea now known as Bering Sea prior to 1S25, or since that date and until 1867, so far as such statements can affect or describe her attitude as a sovereign with reference to that sea and . the surrounding coasts and the islands washed by its waters. These matters rest in intention and are established by assertion and are proven, where proof is needed, by the exercise of authority over Behring Sea and its islands and surrounding coasts, and, where the sovereign rights of Russia are challenged and put upon trial, Russia should be present if the decisiou is to have any bearing, immediate or remote, upon her rights or any effect on her sensibilities, so important to be regarded in the comity of nations. "Russia has retained rights and interests in thefur-seals and fisheries of every kind in the western part of Bering Sea and on the coasts and 28 islands thereof, which are the same as to origin, assertion, and exercise, and as to all sovereign powers, as those that are claimed and exercised by the United States. Russia is still guarding her rights in the form and to the extent that she is making a claim or assertion of them with sedulous care, and Great Britain is actively engaged in treating with her for the definition and settlement of those rights. While treating with Russia she is arbitrating with the United States about the identical questions that equally concern both countries." A main feature that seems to control the opinions of the Arbitrators in determining what are the rights of the United States is the action of Russia, its conduct in fact, as it is alleged,pro and eon, in first asserting, and then abandoning the assertion that Bering Sea is- mare clausum; in issuing her ukase in 1799 and abandoning some of its vital features and adding others by a later ukase in 1821; in wiping out all of the pretensions set up iu both ukases by the treaty concluded with the United States in 1824 and with Great Britain in 1825; in instructing her minister at Washington to deliver to the United States an explanatory-protocol, defining more clearly her construction of the treaty of 1824, which instructions were violated under impressions made upon him by the Secretary of State, and, after this was done, proceeding under the text of the treaty as if no qualifying statement would ever be relied upon by Russia; and in renewing her charter to the Russian American Company in 1831 with the same exclusive privileges as were granted to it in 1821. In the opinions of the arbitrators, now delivered, these questions, so closely related to the conduct of Russia for a period lfttle short of a century, are dealt with and are to be decided by this tribunal. Whether Russia had any right under international law, or any other law, to assert and exercise exclusive rights or exclusive jurisdiction in Bering Sea, can not alter the fact that she did, or did not, assert and exercise them. Neither can these facts be altered by Russia's constructive modification or abandonment of the attitude she had previously held to these subjects. The only question is, what did Russia intend to assert in respect to these matters, and whether she executed that intention in dealing with these subjects. In the opinions delivered, strict history, as to facts, seems to have received a coloring of legal and diplomatic opinion in the effort to ascertain what Russia did and intended to do, by first ascertaining what it was her duty to do under the international law aud the comity of nations. 29 In my judgment, if Russia chose to violate the international la^ and to repudiate all comity, her attitude was not altered because it may have exposed her to unfriendly criticism provoked by the pressure of adverse interests on the part of the United States or Great Britain. At all events, any such departures of the tribunal from the strict duty of stating this history, confined to the subject of fur-seal fisheries in Bering Sea, without reference, deduction, conjecture, opinion, gloss, or comment, will only provoke the prompt dissent of Russia, or will cause Great Britain and the United States, whenever their policies so require, to declare that our decision is not warranted by the strict nature of the inquiry submitted to us, and is obiter dictum. I consider it a happy circumstance that in the opinions delivered on this subject there is such contrariety and conflict that, if they are adhered to, we are obliged to show that a majority of the tribunal are unable to agree upon an identical answer as to the historical facts submitted for inquiry and decision in the first point and in the last clause of the third point of Article VI. And inasmuch as an agreement of a majority of the tribunal as to the historical facts so required to be stated is the essential basis of the decision of the other matters presented in points 2 and 3,1 respectfully insist that we have not been able to reach a decision upon them, and for this reason a majority of the tribunal can not actually decide the inquiry stated in points 1, 2, and 3 of Article VI. ' The matters presented for historical inquiry and decision in points 1, 2, 3, and 4, of Article VI, relate only to a derivative right of the United States to the fur-seal fisheries, as they are termed, in Bering Sea, and the exclusive jurisdiction over that sea to control and protect such fisheries. These questions are presented and may be considered and decided, upon the facts and law that must control our decision, under the submission of questions of a judicial nature, in point 5, of Article VI, and in Articles I and VII of the treaty. In so considering and deciding them we need find no occasion to express, in our award, any conclusions that may impinge upon any right of Russia, or call it in question, or that may unnecessarily wound her sensibilities. It may also turn out that a final award wdl be reached as to the rights of property and protection claimed by the United States, or the rights of pelagic sealing claimed by Great Britain, based upon considerations entirely apart from any derivative rights of the United States that may have come to that Government from Russia. ill 30 At all events, the disagreements already developed among the mem bers of the tribunal, as to the matters with which the interests of Russia are so closely bound up, admonish us that we should lay this matter aside until we have considered the subject before us under Article I, and point 5 in Article VI, Article VII, and any others that open up an inquiry into the juridical features of the questions that are submitted to the tribunal. The opinion and summary of facts presented by Lord Hannen is concurred in by Sir John Thompson. The opinion of Marquis Visconti Venosta is concurred in by Mr. Gram. These opinions, whatever the conclusions of fact to be drawn from them may be, are not identical in statement or reasoning. In the absence of copies of these opinions, I am not able now to compare and contrast them as I would feel it my privilege to do. These opinions deal with the rights and conduct of Russia in different lights. I do not say that they purposely deal with the present rights of Russia, but that effect is unavoidable if any weight is to attach to our findings. Four Arbitrators will agree upon these historical facts, if four agree to Lord Hannen's syllabus, while three dissent. This is not a secure basis of historical decision of facts that concern a living and great nation and her rights, in matters that are now the subject of her anxious care that are under diplomatic consideration in correspondence with Great Britain. An opposing view of this history, presented by me, has the concurrence of Baron de Courcel and Mr. Justice Harlan, to a considerable extent. There is a divided opinion in several directions, and this chapter of history, if it is written, will go forth encumbered with serious doubts and objections. After further discussion, the answers to be made to the first four points in Article VI of the treaty were informally laid aside to enable Mr. Justice Harlan to formulate his answers. THE TRIBUNAL HAVING AGREED TO CONSIDER THE FIRST FOUR POINTS STATED IN ARTICLE VI OF THE, TREATY, IN CONNECTION, AS A GROUP OF QUESTIONS, SENATOR MORGAN SUBMITTED HIS VIEWS OF THE CLAIMS OF RUSSIA, AND OF THE UNITED STATES DERIVED FROM RUSSIA, UNDER THE TREATY OF 1S67, AS THE SAME ARE PROPOUNDED IN THE TREATY OF 1892 IN THE WORDS FOLLOWING: 1. What exclusive jurisdiction in the sea now known as Bering Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States ? 2. How far were those claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Behring Sea included in the phrase "Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring Sea were held and exclusively exercised by Russia after said treaty? 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty? As the tribunal seems to agree unanimously in giving an affirmative answer to the fourth point I will not discuss it. A like unanimity seems to exist as to the answer to the first inquiry under question 3, which makes it unnecessary that I should comment upon that question. All the questions submitted under the four points of Article VI are historical rather than judicial in their character as to the facts to be ascertained and as to the conclusions to be based upon them, except the question presented in the second point, which I consider a mixed question of law and fact. It is upon this view of the duty of the tribunal in the consideration of these questions that my opinions are rested. The situation of the western and northwestern coast of North America in 1824 was practically that of an unoccupied and uninhabited country to the north of Puget Sound. A few scattered tribes of Indians inhabited the vast reach of coast, from San Francisco to the 31 32 frozen ocean, not less than 4,000 miles in length. The claims of Great Britain, Russia, Spain, and the United States to certain boundaries along this great reach were based on alleged discoveries and occupation, all of the most indefinite character, and all disputed, except that Russia held and occupied the islands and coasts on all sides of Bering Sea and this claim was not disputed by any country. This claim was thus held and recognized for many years before 1824, reaching back to the discovery and exploration of Bering Sea. The interest of Russia iu these wild and inhospitable regions was not agricultural, for they are unfit for such pursuits. It was not an ambitious desire for territorial aggrandizement on the American continent, for Russia took no steps to increase her population there beyond the numbers necessary to secure aud handle the fur trade; aud when she found it inconvenient to incur the expense of governing a colony so far away from her capital, that yielded so small a revenue, she sold all her possessions and dominion in that region east of 170° of west longitude to a power that had always been friendly and was not in any sense her rival. Fishing was not so profitable in Bering Sea as to induce fishermen to encounter the unpleasant and short summer season when it was practicable to fish there and establish any regular business in taking fish. The markets were too distant to justify them to transport their catch fresh on ice, and there was not sufficient sunshine to enable them to properly cure the fish. In consequence the business of fishing was never permanently established in Bering Sea, and is not until this time. . Russia directed the energy and capital of her people to the collection of furs as the only really valuable industry in that region, and created monopolies in their favor 'and gave them large powers of legislation, all directed to the same end, and all protected by her naval power in a thoroughly systematic aud effectual way. These privileges were retained and exercised exclusively by Russian subjects under her laws until the Alaskan region was sold to the United States in 1867, with all the rights and dominion that Russia had therein. In order to extinguish in that region all claim of rights existing under Russian authority it was stipulated in the treaty of cession that all former grants of exclusive privileges to any of the Russian subjects should be abrogated. It was in pursuance of the same authority and manifestly for these reasons that the right of trading with the natives and of taking and 33 collecting furs was withheld from the concessions made by Russia to Great Britain and the United States in 1824 and 1825. In accordance with what was then the practice of the great powers as to the right of declaring the closure of extensive areas of sea as territorial appurtenances, Russia claimed that Behring Sea was mare clausum, and in practice this claim was carried into effect as to tlie control of the fur trade. Her people did not hunt whales at that period to any great extent, nor did they conduct fisheries for commercial purposes. It was the double purpose of protecting her fur trade and yet permitting whaling and other fishing within safe limits that caused the Emperor, Alexander I, to issue the ukase of 1821. The whalers and fishermen had begun to deal with the natives for furs and to catch seals in Behring Sea. Russia resented this as a wrong and an invasion of her territorial rights, and,the ukase was issued to prevent its increase or continuance. The ordinary three-mile limit was as fully recognized then as it has been since that time, generally, as to coasts bordering the open ocean, or even more fully recognized. But Russia paid no attention to it in Bering Sea, and for her own security in respect of her only industry in those waters—the fur trade—and to keep down insurrection, she fixed a line of prohibition to navigators at 100 Italian miles from her coasts. In doing this, and in opening Bering Sea- to whalers and fishermen and other navigators in the parts not included in the 100- mile limit, she asserted and exercised an exceptional jurisdiction over that sea and claimed that her power extended over the entire sea, but waived her rights at the distance of over 100 miles from the coasts. In 1799 the interest of Russia and her subjects in the fur trade had become so important that on July 8, 1799, nearly twenty-five years before the date of the treaty with the United States of April, 5-17, 1824, the Emperor Paul issued his ukase, in which he declared that— The benefits and advantages resulting to our Empire from hunting and trading carried on by our loyal subjects in the northeastern seas and along the coasts of America have attracted our Imperial attention and consideration; therefore, having taken under our immediate protection a company organized for the above-named purpose of carrying on hunting and trading, we allow it to assume the appellation of " Russian American Company, operating under our highest protection;" and for the purpose of aiding the company in its enterprises, we allow the commanders of our land and sea forces to employ said forces in the company's aid if occasion requires it, while for further relief and assistance of said company, and having examined their rules aud regulations, 11495 M 3 34 we hereby declare it to be our highest Imperial will to grant to this company for a period of twenty years the following rights and privileges : I. By the right of discovery in past times by Russian navigators of the northwestern part of America, beginning from the fifty-fifth degree of north latitude and of the chain of islands extending from Kam- tchatka to the north to America, and southward to Japan, and by right of possession of the same by Russia we most graciously permit the company to have the use of all hunting grounds and establishments now existing on the northeastern coast of America, from the above- mentioned fifty-fifth degree to Bering Strait, and also on the Aleutian, Kurile, and other islands situated in the Northeastern Ocean. There could not have been a more distinct assertion of rights of sovereignty and dominion, in virtue of discovery and possession, than is' made in this State paper. Neither could it have been more formally, or completely stated that the sovereign will and power of Russia was exerted by this Imperial ukase to secure to the "Russian-American Company under (Russia's) highest protection" "the benefits and advantages resulting * * * from the hunting and trading carried on * * * in the northeastern seas and along the coasts of America." There can be no reasonable doubt that this ukase covered Bering Sea and all hunting and trading in those waters. The rights conferred by this ukase were supported by the power of the army and navy of Russia, pledged for that purpose. The exclusive character of these rights, as to all the world, is stated in Article X of the regulations embodied in this ukase, as follows: X. The exclusive right is most graciously granted to the company for a period of twenty years, to use and enjoy, in the above-described extent of country aud islands, all profits and advantages derived from hunting, trade, industries, and discovery of new lands, prohibiting the enjoyment of these profits and advantages not only to those who would wish to sail to those countries on their own account, but to all former hunters and trappers who have been engaged in this trade and have their vessels and furs at those places; and other companies which may have been formed will not be allowed, to continue their business unless they unite with the present company with their free consent, but such private companies or traders as have their vessels in those': regions can either sell their property or, with the company's consent, remain until they have obtained a cargo, but no longer than is required for the loading and return of their vessel; and after that nobody will have any privileges but this one company, which will be protected iu the enjoyment of all the rights mentioned. The rights thus exclusively granted relate to hunting and trading. The rights of free navigation and of fishing are not granted exclusively to this company, but " all profits and advantages derived from hunting, trade, industries, and discoveries of now lands" are so granted. 35 That the privilege of hunting fur-bearing animals in the northeastern sea, and on land, was "the exclusive right" of the greatest importance that was granted in this ukase is made entirely clear in the prohibition stated in Article X in these words, " prohibiting the enjoyment of these profits and advantages not only to those who woidd wish to sail to those countries on their own account, but to all former hunters and trappers who have been engaged in this trade and have their vessels and furs at those places." This company conducted its operations in reference to the fur trade at great cost and with much profit during the twenty years of its chartered existence, and then applied to Russia for a renewal of its charter- for an additional term of twenty years. The ukase of 1799 was found to be insufficient for the protection of the privileges granted by it, and an additional ukase was necessary for that purpose, which was issued September 4,1821. There could be no need to again assert the right of Russia to grant the exclusive privilegeto its subjects of" hunting and trading," " which had been carried on by (her) loyal subjects in the northeastern seas and along the coasts of America" for many years anterior to 1799, and for a quarter of a century since that date; but Russia, through its Emperor and directing senate, in the most solemn manner, declared that the free right of navigation, which was not restricted by the ukase ofi 1799, had been abused, to the detriment of " the trade of our subjects on the Aleutian Islands and on the northwest coast of America, appertaining. unto Russia." This necessity for an additional ukase could not be expressed more distinctly, or more tersely, than it is in the terms of that ukase, which are as follows: The directing senate maketh known unto all men: Whereas in an edict of His Imperial Majesty, issued to the directing senate on the 4th day of September, and signed by His Imperial Majesty's own hand, it is thus expressed: Observing from reports submitted to us that the-trade of our subjects on the Aleutian Islands and on the northwest coast of America appertaining unto Russia, is subjected, because of secret and illicit traffic, to oppression and impediments, aud finding that the principal cause of these difficulties is the want of rules establishing the boundaries for navigation along these coasts, and the order of naval communication as well in these places as on the whole of the eastern coast of Siberia and the Kurile Islands, we have deemed it necesary to determine these communications by specific regulations, which are hereto attached. In forwarding these regulations to the directing senate we command that the same be published for universal information, and that the proper measures be taken to carry them into execution. 36 That ukase is directed to the suppression of a " secret and illicit traffic" and "oppression and impediments " to which the trade of Russian subjects on the Aleutian Islands on the northwest coast of America was subjected. "The principal cause of these difficulties " is stated in the ukase. It " is the want of rules establishing boundaries for navigation along these coasts," not through Bering Sea, " and the order of naval communication as well in these places as on the whole of the eastern coasts of Siberia and the Kurile Islands." In renewing the charter of the Russian-American Company in 1821, all these abuses were dealt with in the ukase, published on September 7,1821. That was a complete code of laws consisting of 63 sections, regulating and setting apart, as an exclusive and additional right "granted to Russian subjects" of "the pursuit of commerce, whaling, and fishery, aud all other industries on all islands, ports, and gulfs, including the whole of the northwest coast of America," from Bering Straits to the 51° of north latitude, and 45° 50' on the Siberian side of Bering Sea. In this ukase, following this exclusive grant of rights and privileges to Russian subjects, section 2 ordains that: It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia as stated above, but also to approach them within less than a hundred Italian miles. The transgressor's vessel is subject to confiscation, along with the whole cargo. The second chartes of the Russian-American Company was based npon the ukase of 1821, which was based upon and amended the ukase of 1799. The first and second articles of that charter are as follows: • The company established for carrying on industries and trade on the mainland of Northwest America, on the Aleutian and on the Kurile Islands remains, as heretofore, under the highest protection of His Imperial Majesty. n. It enjoys the privilege of hunting and fishing, to the exclusion of all other Russian or foreign subjects throughout the territories long since in the possession of Russia on the coasts of Northwest America, beginning at „the northern point of the Island of Vancouver, in latitude 51° north, and extending to Bering Strait and beyond, as well as on all islands adjoining the coast and all those situated between this coast and the eastern shore of Siberia, as well as on the Kurile Islands, where the company has engaged in hunting, down to the south cape of the Island Urupa, in latitude 45° 50'. 37 The term "hunting" in Article II necessarily includes the same "hunting * * * carried on by our loyal subjects in the northeastern seas and along the coasts of America" that is reserved, exclusively, to Russian subjects by the ukase of 1799. The right of fishing is not mentioned specifically in the ukase of 1799, for the reason, doubtless, that it then had no importance. It is specifically mentioned in the ukase of 1821, and is therein classed as follows, viz, " the pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs." In the ukase of 1821 all these pursuits, including hunting in the northeastern seas, are embraced in "the trade of our subjects (who are) on the Aleutian Islands and on the Northwest coast of America appertaining to Russia," are covered by the protecting power of the Russian Empire. And in order to make the protection effectual the right of navigation was in. that ukase restricted to 100 miles from the coasts, etc. In 1824 the United States held the Spanish title to its possessions on the Pacific coast north of latitude 42°, and had no other substantial claim to that coast. In the treaty of 1824 between the United States and Russia nothing was settled that had not been claimed by Russia in these two ukases of 1799 and 1821, and in Article I of the treaty (the rights of) " the respective citizens and subjects of the High Contracting Powers" are "neither disturbed nor restrained either in navigation or in fishing, or in the power of resorting to the coasts, upon points that may not have been already occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles." Articles 2, 3, and 4 are as follows: Article n. With a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the high contracting powers from becoming the pretext for an illicit trade, it is agreed that the citizens of the United States shall not resort to any xioint where there is a Russian establishment without the permission of the governor or commander; and that, reciprocally, the subjects of Russia shall not resort without permission to any establishment of the United States upon the Northwest coast. Article III. It is moreover agreed that hereafter there shall not be formed by the citizens of the United States, or under the authority of the said States, any establishment upon the Northwest coast of America, nor in 38 any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel. Article IV. It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both powers, or which belong to their citizens or subjects, respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks upon the coast mentioned in the preceding article for the purpose of fishing and trading with the natives of the country. This treaty was designed to settle all the questions involved in the ukases of 1799 and 1821, in" which the United States claimed any interest, under international law, and there is no mention made of any change or modification of the exclusive right of the Russians (made so prominent in the ukase of 1799) of "hunting and trading carried on by our loyal subjects in the northeastern seas and along the coasts of America," except that the right of "trading with the natives of the country" is granted to Americans for ten yearSj and after that time they "shall not resort to,any point where there is a Russian establishment without the permission of the governor or commander." Aside from the question whether " the Great Ocean " included Bering Sea, or is distinguished from it in the treaty of 1824, the right of I hunting in the northeastern seas and along the coasts of America," which, with the right of trading, was considered so replete with "ben-' efits and advantages resulting to our empire," as to be made the sole grounds of the ukase of 1799, was not touched by the treaty of 1824 with the United States, or the treaty of 1825 with Great Britain. ' That right stands to-day as a right asserted by Russia and reserved out of all treaties with the United States and Great Britain. That is quite a sufficient assertion of the right, to support a prescriptive title to the fur-bearing animals in Behring 8ea. The right of "resorting to the coasts, upon points which may not already have been occupied for the purpose of trading" which is agreed upon in Article I of the treaty of 1824 is altogether distinct from the right of hunting "in the northeastern seas" or along the coast. The rights of "fishing" and "hunting" are not anywhere alluded to in these ukases or treaties as being the same; on the contrary, the right of hunting is reserved to Russian subjects "in the northeastern seasl and along the coasts of America," while the treaty of 1824 forbids citi- 39 zens of the United States from resorting to the coast of Russia at any point where there is a Russian establishment without the permission from the governor or commander. Those were the points along the coasts where hunting was most profitable, where the fur-seals were mostly hunted, and where, for that purpose, Russian establishments were located. If the "fishing" mentioned in the treaty of 1824 meant seal "hunting," why was this "hunting" or "fishing" forbidden to the people of the United States at the places where the Russians found it most profitable? The Indians at that time hunted seals in Bering Sea outside the limit of 3 miles from the coast, and the Russians hunted them on the Pribilof Islands. Why should American citizens be excluded from "hunting" seals on shore where the Russians had establishments and yet be admitted to the right of "fishing" for seals in the sea, "along the coasts" where the Indians "hunted" them? These words, "hunting" and "fishing," have each a natural and clear signification, which is most strongly emphasized in these ukases and in the treaty of 1824 as being entirely distinct, and there is no warrant in the context of either of these ukases, or treaties, or in the circumstances that led to them, for construing "hunting" and "fishing" as identical or synonymous terms. The ratification of the treaty of April 5-17,1824, with Russia was proclaimed on the 12th day of January, 1825. Until then it was not in force. As early as June 12,1824, Baron Tuyll, Russian minister at Washington, was instructed by his Government "to the effect that the Northwestern Coastof America, along the extent of which, by theprovi- sions of the convention, free trading and fishing are permitted subjects of the North American States, extends from 54° 40' northward to Takutat (Behring) Bay." The understanding of the treaty by Russia is in accord with the policy stated in the note of the minister of finance to Director Uva- rof of April 2, 1824, in which it is ordered that "the carrying on of trade with foreign vessels arriving there (harbor of New Archangel, now Sitka) established regulations at one designated port." A conference of Russian notables was held in St. Petersburg on July 21,1824, by order of the Emperor, to" again examine" the effect of the treaty of April 5,1824, upon Russian rights and interests, "and also the means which the Imperial ministry thinks best calculated to prevent all injurious and unjust interpretations." 40 In the fifth resolution of this conference it is claimed that the treaty- secures to Russia this advantage, viz, "that after the expiration of ten years the subjects of the United States of America will abstain entirely from visiting the waters of the North American coasts beyond 54° 40' and from fishing and from trading there with the native inhabitants." The majority of the members of that committee stated as their opinion— That the treaty of April 5-17 must be ratified, and that for the prevention of any incorrect interpretation of that act Gen. Baron Tuyll may be instructed at the proper time to make the declaration mentioned in the draft of the communication read by Count Nesselrode. The minister of finance and Acting State Councillor Drushinin, while admitting the necessity of ratifying the treaty of April 5-17, express and place on record the special opinion hereto annexed in the protocol, to the effect that Baron Tuyll should be instructed at the exchange of the ratifications of that treaty to stipulate that the right of free hunting and fishing granted by the second article of the said treaty shall extend only from 54° 40' to the latitude of Cross Sound. The majority of the members of the committee could not but observe, on the one hand, that as the Russian-American Company has founded many settlements in the said latitude, article 2 of the treaty of April 5-17, gives it the desired security on this subject; that even if it had Simply organized hunting and fishing in those regions it is extremely doubtful whether American subjects would undertake the expense necessary for voyages to those Northern latitudes in which they can enjoy their privileges for only ten years, and whether in that case they would expose themselves to dangerous competition and would visit those waters for hunting and fishing where they had long been anticipated by the company, as there would be Httle hope for them of indemnifying themselves for their expenses, and losses. These proceedings show that the Russian claim at that time and under their construction of the treaty of April 5-17,1824, was that the assertion of the exclusive right of fishing and hunting north of 59° 30' was reserved to Russian subjects even during the period of the privileges that were granted to United States citizens under article 4 of the treaty, for ten years. This attitude of Russia towards the exclusive right to the fur trade in Bering Sea was maintained in practice down to 1867, no one objecting. The close care of the fur-seal industry on the islands, the policeing of the seas for the protection of fur-bearing animals, the arrest of suspected or offending ships, and the basing of civilization" and government on that traffic upon all her coasts and islands in Bering Sea by careful legislation, all prove that Russia admitted no common, or partnership rights of any people or government in any of those privileges 41 or industries. There is no evidence but the silence of other governments, if any objection to these claims of Russia existed. In every stage of the negotiations between the United States and Great Britain and in every declaration of right by Russia, up to the exchange of ratifications of the treaties of 1824 and 1825, and in every declaration of Russia since that time, the protection and security of her fur trade in Bering Sea has been an object of her solicitude. Every governmental act instituted and performed by Russia hi that connection has been exactly in correspondence'with her assertion of dominion over Bering Sea as a preserve for taking furs through hunting "in the northeastern seas" and "in the gulfs" thereof, and of the South Sea, or Pacific Ocean, and along her coast line, south as well as north of the Aleutian Islands and peninsula. It was this assertion of dominion that the United States and Great Britain yielded to when they, respectively, accepted the restrictions upon the rights of "fishing and trading with the natives," which are limited to the period of ten years, in Articles III and IV of the treaty with the United States, and Articles III and VII of the treaty with Great Britain. In the treaty of 1824 with the United States, Articles HI and IV are as follows: in. It is moreover agreed that, hereafter, there shall not be formed by the citizens of the United States or under the authority of the said States, any establishment upon the northwest coast of America, nor in any of the islands adjacent to the north of fifty-four degrees and forty minutes of north latitude; and that, in the same manner, there shall be none formed by Russian subjects or under the authority of Russia, south of the same parallel. rv. It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks, upon the coast mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country. In the treaty with Great Britain, Articles ni and VII are as follows: m. The line of demarkation between the possessions of the High Contracting Parties, upon the coast of the continent, and the islands of America to the northwest shall be drawn in the manner following: Commencing from the southernmost point of the island called Prince. 42 of Wales Island, which point lies in the parallel of fifty-four degrees and forty minutes north latitude, and between the one hundred and thirty-first and the one hundred and thirty-third degree of west longitude (meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the continent where it strikes the fifty-sixth degree of north latitude; from the last-mentioned point the line of demarkation shall follow the summit of the mountains situated parallel to the coast, as far as the poiut of intersection of the one hundred and forty-first degree of west longitude (of the same meridian); and finally from the said point of intersection, the said meridian line of the one hundred and forty-first degree in its prolongation as far as the frozen ocean, shall form the limit between the Russian and British possessions on the continent of America to the northwest. VII. It is also understood that for the space of ten years from the signature of the present convention the vessels of the two powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, gulfs, havens, and creeks on the coast mentioned in Article HI, for the purpose of fishing and of trading with the natives. If Great Britain had understood that the treaty of 1824 with the United States gave to their citizens the perpetual right of fishing and trading with the natives in "interior seas, gulfs, harbors, and creeks, upon the coast"—"the northwest coast of America"—and "in the islands adjacent" thereto, § to the north of 54° 40'north latitude," that Government would not have accepted a b'mitation of this right to a period of ten years. Under such a construction of the treaty of 1824 with the United States it would have been sheer folly for Great Britain to have given Russia the same privilege for ten years from Prince of Wales Island, along Portland Channel up to 56° of north latitude, for Great Britain asserted, with absolute confidence, that Russia would not make terms with her that were less liberal than she had made with the United. States. If Russia yielded her dominion over her preserve of fur-seal hunting in perpetuity to the United States, and then to Great Britain, what could have been the necessity that prompted them to insert these by- provisions for the same rights for a period of ten years in their treaties? It is too clear for disputation that Russia intended to yield these rights, reciprocally, for ten years, because she was not willing that they should extend beyond that period, except at her option. A more forcible statement of the claim of Russia to the exclusive right of fishing and trading with the natives in those waters could not well have been made. 43 Yet even these concessions did not include the right of " hunting " fur- bearing animals, which Russia was never asked to yield. For these purposes her dominion over Bering Sea and all the gulfs, bays, inland seas, and creeks on all her coasts was reserved. The rights of whaling, fishing, hunting, and trading, conducting commerce and navigation, are all referred to in these ukases and treaties as separate and distinct rights. In their nature they are distinct, and none of them includes the others, though they are closely related. When each of these rights is expressly and distinctively mentioned in one part of these treaties and ukases, as a substantive right or pursuit, it is not a proper construction of these solemn instru ■ ments to say that those rights are intended to be included in those parts where they are not mentioned, or that "hunting" is telescoped into "fishing" and " fishing" into " whaling" and all of them into "navi- ation," or that the use of that word or the assertion of that right includes all these other rights. Dominion of Bering Sea could have been exercised for the exclusive enjoyment and protection of either of those rights, without including any other, though, as in the case of the 100 miles limit, which was a modification of the claim of the exclusive right of navigation, the full exertion of that power would have closed that sea to all navigators whether they were whalers, fishermen, or hunters. The ukase of 1799 asserted this dominion, so as to protect the right of "hunting in the northeastern seas" and of trading with the natives, and no other ukase or treaty ever yielded the exclusive right of hunting, under any condition, or the right of fishing to any other extent, than under the ten years binit provided in the above-quoted articles of those treaties of 1824 and 1825. Dominion in one country over land or sea, is entirely consistent with easement or privilege in another. Navigation is a universal easement to be enjoyed by all vessels sailing on lawful voyages upon the high seas, but it has no element of dominion to support it, except within territorial waters. Fishing, lawfully conducted, is also an easement equally universal, and the right is also exclusive in territorial waters. The dominion that protects fisheries is more exclusive than that which limits the free'right of navigation. Within territorial limits, fishing is a property right, while navigation within those limits is, for innocent purposes, an easement that no nation denies to another. 44 Hunting is an easement that is still more under the control of national dominion, because it is conducted with firearms and is, therefore, a more dangerous practice where the people are savages or are rebellious, because it furnishes a pretext for introducing among them arms and ammunition. And hunting and trapping are different pursuits. Russia had powerful inducements for keeping hunting on land or sea and trading with the natives under her exclusive dominion. What is dominion? Sir Robert Phillimore, in his "Commentaries on International Law, Vol. 1, p. 266, Ed. 1871, says : "Dominion is the fullest right which can be exercised over a thing : the right of property, so called." On page 267 he says : "As dominion is acquired by the combination of the two elements of fact aud intention, so, by the dissolution ■ of these elements, or by the contrary fact and intention, it may be lost or extinguished." On page 274 he says: But when occupation by use and settlement has followed upon discovery, it is a clear proposition of law that there exists that corporal possession (corporalis quaedam possessio (a) detentio corporalis (b)) which confers an exclusive title upon the occupant, and the dominium emi- nens, as jurists speak, upon the country whose agent he is. On page 285 he further says: COXLII. The nature of occupation is not confined to any one class or description; it must be a beneficial use and occupation (le travail d' appropriation) ; but it may be by a settlement for the purpose of prosecuting a particular trade, such as a fishery, or for working mines, or pastoral occupations, as well as agriculture, though Bynkershoek is correct in saying, cultura utique et eura agri possessionem quam maxime indicat. Vattel justly maintains that the pastoral occupation of the Arabs entitled them to the exclusive possession of the regions which they inhabit. It has been truly observed that, agreeably to this rule the North American Indians would have been entitled to have excluded the British fur-traders from their hunting-grounds; and not having done so, the latter must be considered as having been admitted to a joint occupation of the territory, and thus to have become invested with a similar right of excluding strangers from such portions of the country as their own industrial operations pervade. CCXLIII. A similar settlement was founded by the British and Russian fur companies in North America. The chief portion of the Oregon Territory is valuable solely for the fur-bearing animals which it produces. Various establishments in different parts of this Territory organized a system for securing the preservation of these animals, and exercised for these purposes a control over the native population. This was rightly contended to be the only exercise of proprietary right of which these particular regions at that time 45 were susceptible, and to work that a beneficial use was made of the whole Territory by the occupants. CCXLIV. It should be mentioned that the practice of nations in both hemispheres is to acknowledge in favor of any civilized nation making a settlement in an uncivilized country a right of preemption of the contiguous territory from the native inhabitants as against any- other civilized nations. It is a right claimed by Great Britain with respect to her Australian settlements, especially New Zealand; and by the United States of America with respect to the Indians in their.back States. In the claim of Russia to the exclusive "hunting in the Northeastern seas," to say nothing of the rights of fishery and navigation, as such rights are defined in the international law, there is enough in the highest legal authority to support thefoundation of theright, which is thehand- maiden of peace, namely, the right which is "a mode of original acquisition which is effected by the operation of time," and is "whatthe English and French jurists term prescription." On page 298,Vol. 1, Sir Robert Phillimore says: The doctrine of immemorial prescription is, from the very necessity of the case, indispensable in the system of public law. Accordingly we find it mentioned more than once in the constitutions of the ancient German Empire and as a mode of acquiring public rights. On pages 299 and 300 the same author says: Having discussed the position of prescription in the systems of private and public law we now approach the consideration of a matter, holden by the master mind of Grotius to be one of no mean difficulty, namely, international prescription. Does there arise between nations, as between individuals, a presumption from long possession of a territory or of a right which must be considered as a legitimate source of international acquisition? In seeking an answer to this important question it is necessary to keep clear of all subtle disquisitions with which this subject has been perplexed; whether, for instance, itbe the creature of natural or civil law, or whether it must be always founded upon a presumption of voluntary abandonment or dereliction by the former owner. Through these metaphysical labyrinths we can not find a clue for questions of international jurisprudence. The effect of the lapse ofi time upon the property and right of one nation relatively to another is the real subject for our consideration. And if this be borne steadily in mind it will be found, on the one hand, in the highest degree irrational to deny that prescription is a legitimate means of international acquisition; and it will, on the other hand, be found both inexpedient and impracticable to attempt to define the exact period within which it can be said to have become established—or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions. Again, on pages 301, 302, and 303, he says: CCLVni. It is true that some later writers on the law of nations have denied that the doctrine of prescription has any place in the system of international law. But their opinion is overwhelmed by authority, at variance with practice and usage, and inconsistent with the reason of the thing. Grotius, Heineccius, Wolff, Mably, Vattel, Rutherforth, 46 Wheaton, and Burke constitute a greatly preponderating array of authorities, both as to number and weight, upon the opposite side. The practice of nations, it is not denied, proceeds upon the presumption of prescription, whenever thereis scopefbr the admission of thatdoc- trine. The same reason of the thing which introduced this principle into the civil jurisprudence of every country, in order to quiet possession, give security to property, stop litigation, and prevent a state of continued bad feeling and hostility between individuals, is equally powerful to introduce it, for the same purpose, into the jurisprudence which regulates the intercourse of one society with another, more especially when it is remembered that war- represents between States litigation between individuals. It is very strange that the fact that most nations possess in their own municipal codes a positive rule of law upon the subject, has been used as an argument that the general doctrine has no foundation in international law. It is admitted, indeed, that immemorial prescription constitutes a good title to national possession; but this is a perfectly nugatory admission, if, as it is sometimes explained, it means only that a State which has acquired originally by a bad title, may keep possession of its acquisition as against a State which has no better title. If it had been merely alleged that the exact number of years prescribed by the Roman law, or by the municipal institute of any particular nation, as necessary to constitute ordinary prescriptions, is not binding in the affairs of nations, the position would be true. It is, perhaps, the difficulty attending the appbcation to nations of this technical part of the doctrine which has induced certain writers to deny it altogether; but incorrectly, for, whatever the necessary lapse of time may be, there unquestionably is a lapse of time after which one State is entitled to exclude every other from the property of which it is in actual possession. In other words, there is an international prescription, whether it be called immemorial possession or by any other name. The peace of the world, the highest and best interests of humanity, the fulfillment of the ends for which States exist, require that this doctrine be firmly incorporated in the code of international law. Will this tribunal shrink from the recognition of this doctrine, now that an opportunity, distinctly given, calls for a firm declaration f The importance of prescription as a basis of title, or right, to any property, or exclusive privilege, is thus stated by Sir Robert Phillimore (p. 305):' But that prescription is the main pillar upon which the security of national property and peace depends, is as incontrovertable a proposition as that the property and peace of individuals rest upon the same doctrine. . To these remarks should be added the observation of another great modern jurist: The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other. Whether this general consent be considered as an implied contract or as positive law, all nations are equally bound by it, since all are parties to it, since none can safely disregard it without impugning its own title to its possessions, and since it is founded upon mutual utili ty, an d tends to promote the general welfare of m an kind. (Wheaton.) 47 In one of those treatises which show how deeply the mind of the writer was imbued with the principles of general jurisprudence, Mr. Burke uses the following admirable expressions: If it were permitted to argue with power, might one not ask one of these gentlemen whether it would not be more natural instead of wantonly mooting these questions concerning their property, as if it were an exercise in law, to found it on the solid rock of prescription? The soundest, the most general, the most recognized title between man and man that is known in municipal or public jurisprudence; a title in which not arbitrary institutions, but the eternal order of things gives judgment; a title which is not the creature, but the master of positive law; a title which though not fixed in its term, is rooted in its principles in the law of nature itself, and is indeed the original ground of all known property; for all property in sod will always be traced back to that source, and will rest there. * * * These gentlemen, for they have lawyers amongst them, know as well as I that in England we have always a prescription or limitation, as all nations have against each other. * * * All titles terminate in prescription; in which (differently from time in the fabulous instances) the son devours the father, and the last prescription eats up all the former. These citations from very eminent British authority establish the right of a government by prescription, based on occupancy and claim of title, to any dominion, on land or sea, of anything in the nature of property, whether corporeal, or incorporeal, as firmly as if the right were established by grant or as the result of conquest or cession. The true doctrine of the international law is stated in the extract above quoted from Wheaton (Vol. 1 p. 207) that " The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other." This rule is fully applicable to the dominion of Russia over the fur industry and trade in Bering Sea, which was never yielded or transferred to any government until it was sold to the United States. Dominion also includes the right of a government to the soil beneath the territorial and adjacent waters. The claim of territorial waters over an area of the sea that is clearly demarked -by land boundaries, though not entirely inclosed by the land is, a vabd exercise of power by the government that owns the land which forms the coasts and islands that define the boundary. It may not be sufficient to destroy the easements that other nations may have in those waters, yet, it is dominion or ownership of the land beneath those waters, anditis clearly sufficient to support the municipal jurisdiction of the government over its own citizens, and, also, to support a claim to any pearl or oyster beds beneath such an area of waters, or any mines that may be found there. Such a claim and assertion of ownership may not be sufficient reason 48 for denying to other nations in that area the privilege of navigation or fishery, but that fact does not negative the dominion that may be thus lawfully exercised. To illustrate: If an island should be thrown up by volcanic action or the action of the water within the limits of Bering Sea it would belong to the United States, without first discovery or occupation, in virtue of its dominion already exercised over that sea. And, so, if it became necessary that the United States should close Unimak Pass with obstruction, for any purpose, even to the great inconvenience of navigators or fishermen, the question of the right to do this would be resolved, under the international law, by the other question whether the easement of navigation through that pass was of such importance to the world that the owner of the soil beneath the water would, in justice, be compelled to yield its rights. In all such cases, where the exercise of the privilege of navigation, fishery, or other easement is injurious to the owner of the soil above which it is exercised, the privilege must yield to the higher right of the dominion of the owner of the soil. The right of dominion in a sea like Bering Sea or the sea of Okhotsk does not depend on its being separated from water communication with the ocean. If the configuration of the land surrounding it is such as to make it necessary to the peculiar commerce of the country within which it is embayed, or to the defense of such country, or to the proper administration of its powers of government over its own people, it is a right ex debito justitice that there should be dominion over such sea. This is the right that is now the foundation of the exclusive right of several nations to dominion over seas that are not inclosed by the land on their shores, as stated by Sir Robert Phillimore, page 225, as follows: The exclusive right of the British Crown to the Bristol Channel, to the channel between Ireland and Great Britain (Mare Hibernicum, Canal de St. George), and to the channel between Scotland and Ireland is uncontested. Pretty much on the same category are the three straits forming the entrance to the Baltic, the Great and the Little Belt, and the Sound, which belong to the Crown of Denmark; the Straits of Messina (il faro di Messina, firetum Sieulum), once belonging to the kingdom of the Two Sicilies; the straits leading to the Black Sea, the Dardanelles and Hellespont; theThracian Bosphorus, belonging to the Turkish Empire. To narrow seas which flow between separate portions of the same kingdom, like the Danish and Turkish Straits, as to other seas common to all nations, like the Straits of Messina and, perhaps the St. George's Channel, the doctrine of innocent' use is, according to Vattel, strictly applicable. In the case of the seas here mentioned other nations have the right. to the innocent use of them, but it must rest with the nation claimmgk 49 them to determine whether the use that is made of them by another nation is innocent. This is all that the United States claim of "dominion" over Bering Sea in respect to the protection and preservation of the fur-seals resorting to those waters and the industry in the pelts and oil so long established on their islands, which have no value for any other industrial purpose. This claim, when these waters are invaded by a destructive method of hunting the seals, is a right of self-preservation. That right is thus stated by Sir Robert Phillimore: OCX. The right of self-preservation, by that defense which prevents, as well as that which repels, attack, is the next international right which presents itself for discussion, and which, it will be seen, may under certain circumstances and to a certain extent modify the right of territorial inviolability. OCXI. The right of self-preservation is the first law of nations as it is of individuals. A society which is not in a condition to repel aggression from without is wanting in its principal duty to the members of which it. is composed and to the chief end of its institution. All means which do not affect the independence of other nations are lawful for this end. No nation has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect. CCXII. The means by which a nation usually provides for her safety are: (1) By alliances with other States; (2) by maintaining a' military and naval force; and (3) by erecting fortifications aud taking measures of the like kind within her own dominions. Her full liberty in this respect can not as a general principle of international law be too boldly announced or too firmly maintained, though some modification of it appears to flow from the equal and corresponding rights of other nations, or at least to be required for the sake of the general welfare and peace of the world. The United States have the right to treat the sudden and dangerous increase of the number of vessels engaged and the number of seals taken in pelagic hunting as an impending threat of the destruction of the seal herd that habitually resorts to their islands. These apprehensions are more directly excited, because they are actually justified by the attack made ou the seal herd, than those which are regarded as a just cause of war in relation to armaments by neighboring nations. Of these Sir Robert Phillimore says, on page 253: CCXni. Armaments suddenly increased to an extraordinary amount are calculated to alarm other nations whose liberty they appear, more or less according to the circumstances of the case, to menace. In -the seizure of ships within the eastern waters of Bering Sea the United States resisted, in the beginning, a raid upon her industry which suddenly threatened its destruction, and this resistance, which was timely and necessary, was made within her own dominion—a domiu- 11495 M 4 50 ion established by prescription as to the fur-seal industry, and which also has for its support the principles of the international law which apply to the British waters, above quoted, and to other seas that are not entirely inclosed by the hind mentioned in the following quotations from Phillimore, vol. 1, p. 243: CCV. With respect to seas entirely inclosed by the land, so as to constitute a salt-water lake (maria clausa; mers feimees, encloses: Bin- nenmeer, geschlosseneiunereMeere), the general presumption of law is that they belong to the surrounding territory or territories in as full and complete manner as a fresh-water lake. The Caspian and Black seas naturally belong to this class. Upon the former sea Russia had by treaty with Persia, the exclusive right of navigation with ships of. war, and bythe treaty of the Dardanelles the Black Sea was practically confined to Russian and Turkish ships of war. But by the treaty of Paris of 1856 this sea is neutralized and open to the merchant ships of all nations and closed to ships of war of any State. CCVI. There is another class of inclosed seas to which the same rules of law are applicable—seas which are land-locked, though not entirely surrounded by land. Of these, that great inlet which washes the coast of Denmark, Sweden, Russia, and Prussia, the Ostsee as the Germans call it, the Baltic Sea according to its usual appellation, is the principal. But the right of self-preservation of the United States, in respect to the fur-seal industry, naturally and without reference to the actual property in the animals, extends beyond her dominion. As to such rights Phillimore says: CCXIV. We have hitherto considered what measures a nation is entitled to take for the preservation of her safety within her own dominions. It may happen that the, same right may warrant her in extending precautionary mestsures without these limits and even in transgressing the borders of her neighbor's territory. For international law considers the right of self-preservation as prior and paramount to that of territorial inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right. If this right of self-preservation is prior and paramount to territorial inviolability, it must be superior to any right or easement of fishing and hunting, and better entitled to the protection of international law. The necessity for protecting this right is now as manifest and indisputable beyontL Bering Sea as within its limits. When a source of revenue or a necessary instrumentality of government is attacked, or seriously threatened, the occasion arises for the interposition of the right of self-defense. The confllnraition of Bering Sea, its coasts and islands, is such as to give it an exceptional relation to the outside world. It is inclosed on all sides by land and frozen waters, except through the passes of the 51 Aleutian and Kamtschatkan islands. A blockade of tho Aleutian passes would close every port in Bering Sea and, where a nation may be thus locked in, it is not too much to claim that it has the light of dominion over such interior waters and, for purposes of self-preservation, to lock other nations out. It is a just right that is thus claimed by the United States, and when it is used for purposes of self-preservation it is sustained by international law. WHEN POINT FIVE OF ARTICLE VI OF THE TREATY WAS UNDER CONSIDERATION SENATOR MORGAN DELIVERED THE FOLLOWING OPINION: I beg leave to submit the following additional statements and arguments which I think are sufficient to establish that the prescriptive rights of Russia and the United States, in respect of the fur-seals that habitually resort to Bering Sea, are to be safely based upon the continued and unquestioned usage of both countries, as well as upon the peculiar characteristics of these animals. And I will endeavor to state the reasons that compel me to hold, on these and some other grounds, that the United States have a right of property and protection in these animals. I have already presented to the tribunal, on a previous day, the views I entertain as to the true history of the claims set up by Russia relating to the exclusive right to control and protect the fur industry in Bering Sea, and have endeavored to state generally the foundations in law and fact* upon which Russia rested her claims. I will now again briefly review some of those facts as I believe they exist, and will refer to others, and endeavor to connect them with the doctrines of the law which I think are clearly applicable to establish a right of property in the fur-seals that is well founded, both as a right by prescription and a right growing out of the useful and domestic nature of these animals. The Russian Government exercised-the right to own and control the seals that resorted to Bering Sea, and made temporary grants to its subjects of the right to take them in those waters. It may be said that this was an assumption of right on the part of Russia not supported by any rule of international law. It was not more distinctly an assumi>tion of right than was the title to the islands, based on the discovery of them by a Russian subject. In both cases a native sovereignty was displaced to make room for the claims of Russia, backed-by superior force. The processes of appropriation were the same in reference to the seals and seal fisheries as they were in 53 reference to the islands, viz,-discovery, claim, occupation, and development. Exclusive use and the acquiescence of other civilized powers were the attendant facts that established the right of property in both cases. As all international law grows out of custom and has no other root, it can not be denied that the right of Russia to appropriate and protect this herd of fur-seals has been established by custom and maintained by constant and exclusive use. Certainly no other nation in its sovereign character has claimed these seals or denied the right of Russia to their exclusive ownership. When Great Britain, in 1825, was treating with Russia for an open sea, free navigation, and the rights of fishing in those waters, she set up no claim to a common right of hunting seals or fur-bearing animals in those regions. Russia went on renewing her charters for these purposes to her subjects, and Great Britainstood by and made no assertiou of such right for herself or her subjects for about a half century. Nearly a century elapsed after the colonization of the islands by Russia before any British subject opposed the claim of Russia and the United States, her vendee, to a property right in the seals that habitually resorted to Bering Sea. There are few customary rights that have a surer foundation in usage or upon the doctrine of acquiescence than the world has accorded to Russia in respect of the right to the fur-seals resorting to Bering Sea. The long acquiescence of Great Britain in this claim of ownership in seals by Russia was not only without objection, protest, or diplomatic suggestion to the contrary, but that Government has encouraged her own people to base an extensive and valuable industry upon the material provided by Russia and regularly suppbed to them from her fur-seal husbandry. It is now too late for Great Britain to say that Russia and the United States mistook the law of nations when they set up rights of property in fur-seals. Ninety years of acquiescence attended with no harm to British people or interests, but with great benefits to both, is time enough in which to establish the consent of Great Britain that live seals resorting to Bering Sea are property, as much so as dead ones are that are slain by British subjects. But the acquiescence of Great Britain is not needed to establish the proposition that there is property in live seals and that it exists ratione soli. 54 Imp THE THIRD QUESTION IN ARTICLE I OF TnE TREATY SEEMS TO HAVE BEEN AVOIDED. One of the three questions submitted to arbitration in Article I is so dependent for its decision upon the question of property in fur-seals that it should be considered in connection with it. It is concerning "the rights of the citizens and subjects of either country as regards the taking of fur-seal in or resorting to said waters." The foundation of such a right could be none other than a right of property in the seals when captured or killed in nonterritorial waters—a right acquired by the capture of the seal, dead or alive. The final analysis of this question is whether a right of property can attach to a living- seal that is found swimming in the ocean. This question is nowhere presented in the treaty or alluded to as a question to be submitted to the Arbitrators, except in the first article. It is the postulate stated by Great Britain in these contentions, around which every fact and every principle of law asserted by Great Britain is grouped. If British subjects have the right of taking fur-seals in, or habitually resorting to, Bering Sea, it makes little difference what the rights of the United States may be, for they would amount to nothing practically, and, in theory, such a right would destroy all the grounds on which the United States could rest a claim to the right of protecting the seals outside the ordinary 3-mile limit. This question is submitted for decision in such broad form as to include "the rights of the citizens or. subjects of either country, as regards the taking of fur-seals in, or habitually resorting to said waters." The statutes of the United States, following the unqualified assertions of Russia while she was owner of these islands, assert the ownership of the United States in the fur-seals found in the Bering Sea, and base upon that ownership a governmental industry of great value to the revenues. They punish with severity any person who destroys this property or interferes with the agents or lessees of the United States in its management, and they provide, for the lease, to their own citizens under careful regulations, of the privilege of taking seals. Great Britain has not assumed and could not assume such a relation as that to the fur-seals in, or resorting to, Bering Sea, because it can not claim them ratione soli. It sets up no claim of ownership in the fur-seals, but denies that ownership in them is possible untd the animals have been captured or killed. 55 The respective countries occupy, therefore, very different relations to this subject. A declaration of the right in favor of the citizens of the United States to take fur-seals in Bering Sea, if made by this tribunal, is a declaration that the statutes of the United States that forbid such taking are of no validity and should be repealed,- while the same declaration when made in favor of British subjects is in perfect accord with the laws, policy, and contentions of that country. This obvious impediment to a decision as to the right of pelagic sealing in Beriug Sea, under which the power of the United States over her own citizens would be called in question, confines the inquiry to the simple proposition whether the United States have a property in the seals in, or habitually resorting to Bering Sea, and the nature of that property. The crucial test of the right of the United States to property in fur- seals that resort to Bering Sea, whether that right implies a perfect ownership of the seals or an interest in the usufruct of the herd for the support of a legitimate and useful industry, is made by the treaty to turn upon the question whether British subjects have the unrestricted right to take seals on the high seas as free-swimming animals that arc ferce naturce. This, therefore, is the main question in the case, and draws within its influence every other question presented to the Tribunal of Arbitration, except those questions that relate peculiarly to Bering Sea, I have already discussed. This claim of right to take fur-seals on the high seas is asserted as a private and personal right of every person who goes upon the high seas under a recognized national flag; and the employment of the flag for that purpose is nut required to be legitimated by a license to fish. Eo government has asserted, or ever will assert, the right, as a government, to employ its sovereign powers, or its war fleets, in this business, for the purpose of increasing its revenues. Such conduct by a government would be regarded as a disreputable invasion of the high seas for its own aggrandizement and, when it should come iu conflict with the interests of the people of other countries, the invasion would be regarded as a national offense. The case would be quite different if the purpose of the government was to protect a bona fide claim of property in seals, against destruction. If iu quest of seals to which no claim of property was asserted by a government it should send out its fleets to gather revenue, or to destroy such property, claimed by another government, the necessary 56 result would be a disturbance of the peace and probably a hostile collision. The case is altered in degree, but not in its nature, when a government sustains and adopts the rights of its people to destroy a property or industry claimed by another nation. If such government could not, under the usage of nations or just principles of international law, thus enrich its treasury, it is difficult to see on what principle it could support its people in such conduct for their private gain. In either case the sentiment of justice entertained by the civilized nations would sustain the power that, in good faith, claimed the right to own and protect the fur-seals for the benefit of the commerce of the world, rather than the nation that denied the right of property in seals, until they are captured and killed, and claimed the right to make property of them only by indiscriminate and destructive slaughter. In this treaty, and in all the diplomatic contentions that have led to its conclusion, both Governments have admitted that property in seals may be acquired, protected, and preserved, at least to the extent of protecting and preserving them by their concurrent regulations, and they have agreed to apply the; e conceded facts to certain seals that habitually resort to tho waters of Bering Sea. These questions are virtually removed from the field of doubt or disputation by the terms of the treaty under which the Tribunal of Arbitration is acting. Great Britain now asserts that the property in seals can be acquired only by capture, which, under the practice of pelagic hunting, as conducted by its subjects, means that such property can be acquired only by killing the animals. The United States asserts that property in seals may be acquired while they live, and without actual capture. As to the right of property in the individual animals, this is the only form of issue that is joined between the parties to this treaty. As to the proper protection and preservation of seal life to which the Governments are both solemnly pledged in this treaty Great Britain contends that taking them at sea is a better method than taking them on land, and is, therefore, the proper method; while the United States claim that the only method of taking seals that can properly protect them is by selecting the animals for slaughter, and that this can be done on the land and can not be done in the water. The killing of the animals is included in each of these contentions as th© only way in, which they can be made useful to mankind; and the time, place, and method of killing them that is best adapted to the protec- 57 Hon and preservation of seals in the class or herd that habitually resort to the waters of Bering Sea is the real inquiry "concerning the preservation of the fur-seal in, or habitually resorting to," Bering Sea that is submitted to the Arbitrators. All the other questions presented for consideration or decision by the Arbitrators relate alone to the powers that either Government may employ and their jurisdictional rights to enforce their respective contentions, or that both should employ concurrently, to protect and preserve seal life, outside of their territoria limits. Is it true, as it is asserted by the United States, that property in fur-seals may be acquired while they are alive and without actual capture? That depends to a great degree upon the value of the uses to which they are put and the certainty and regularity with which they may be subjected to those uses, and these considerations relate to animals as classes, and to their habits as a class, and not to the peculiarities of the individuals. Some individuals are frequently found among animals that are everywhere classed as domestic which are as wild and fierce (or timid as the case may be) as the wildest of animals, such as horses, cattle, sheep, swine, poultry, and dogs. And some of the wildest and most ferocious animals have been so domesticated by training as to become harmless, and even serviceable, or profitable in a high degree, such as hunting leopards, hawks, cormorants, elephants, and even bears, lions, and tigers. But these exceptional instances of domestication by training prove nothing as to the general nature or habits of the classes of animals in which they are found. If a class of animals is valuable for the uses of mankind and is, by habit, drawn within reach of man periodically, with regularity and certainty, the nation that thus acquires a settled and peculiar power of control over it on land may base a legitimate industry upon the material it affords, and may declare the. animals to be its property. A nation so situated may certainly make such an assertion and declaration of ownership in the entire class of such animals as against the right of its own people to treat them as being wild animals and res nullius, and in that sense and to that extent at least it may exercise ownership over them without capturing them. Animals that are classed as being domestic, are protected by a legal presumption of ownership, however wild they, in fact, may be. Animals domesticated by train ing are sheltered by the same presumption of law, until they have resumed their wild condition. Wdd animals, called game, are not protected by legal fictions but 58 by legislative enactments. Their protection, when it is accorded, must be by law, because it trenches upon the natural rights of the people to capture and appropriate them. The State assumes a right of public appropriation, and deprives its subjects of the right to appropriate such animals and regulates or prohibits its exercise. If the State takes the further step of declaring by law that it has appropriated these wild animals to the uses of Government and that its possession and ownership ase complete by legal construction and without taking actual possession of them, they become the property of the State wherever those laws are in force. Thus all game laws are based on the sovereign right to appropriate wild animals by the state. This right of government, for it is such a right, is illustrated in a forcible way by laws giving bounties for the destruction of wolves and other predatory animals. If a man, for reasons of his own, should claim that he was, ratione soli, the owner of a cave that sheltered wolves and therefore of the wolves, he could not resist the right of the state to cause their destruction in accordance with law, even in the cave where they were bred but left uncon- fined to go forth at will and maraud upon the property of others. The power of the state in such case is not based on its judicial function of suppressing nuisance, but on its ownership, when it chooses to assert it, over wild animals. It may be and, in a general souse, it is true that the private owner of the soil on which a wild animal is bred can only acquire actual property in such animal by its capture, but that is far from being true as to the sovereign power in a state. A state that can not dispose of what is res nullius, within its own jurisdiction, is wanting in an essential power of sovereignty. It could not otherwise dispose of escheats, waifs, derelicts, or forfeitures that occur without judicial procedure, as many do occur. If these propositions are true it is unquestionable that a state may acquire property in anything susceptible of ownership that i*i res nullius, found within its jurisdiction, by a simple declaration of law and without taking it into actual possession. The property so acquired is the creature of municipal law. The United States has done all that is necessary to establish its ownership of fur-seals by municipal laws that are operative against everybody within the limits of their jurisdiction, whether those limits include all the'waters of Bering Sea or only the land and waters within the ordinary 3-mile limit. Within those limits this declaration of 59 the supremo legislature establishes property in fur-seals and appropriates it to the United States while the seals are living and without the necessity of capturing them. When this property is found outside the limits of the jurisdiction of the United States the question arises for the first time as to how far the people of other countries are bound to . respect the title asserted by the United States. As to the people of the United States, they are bound to respect this title of their Government, if"so required by law, wherever their allegiance bnids them, and the law does bind them to respect the property of the United States wherever it may be found. No rule, code, or system of Law, municipal or international, is prescribed or alluded to in the treaty as the guide of the tribunal in determining any question submitted to them. The only allusion that is made in the treaty to laws or jurisprudence is that the Arbitrators " should be jurists of distinguished reputation in then" respective countries." This requirement, as well as the nature of the subject, questions, and points submitted to the tribunal for examination, is a sufficient indication that where the recognized principles of international law or the municipal laws of the respective countries furnish a basis and guide to ascertaiu.and admeasure the rights of the respective treaty powers, they shall be followed. But if there are not such precedents and enactments the declaration of their respective rights, outside the limits of their exclusive jurisdiction, is within the competence of the tribunal, and also the declaration of their duty concerning the protection and preservation of the fur-seals in question. The United States assert their right of property in the fur-seal in question while they are alive and without the incident of actual capture: Eirst, as a right by prescription derived from Russia, and acquiesced in by Great Britain; and their usefulness to the Government and the people. Second, as a right established by law within its domain, that is not impaired by the necessary and temporary absence of the seals in search of food, either while they are inhabiting the seal islands, or when they retreat from them on their winter excursions into the Pacific Ocean; Third, as a right of property that is the necessary result of the habits of the animals, and their natural aud compulsory relation to the Pribiloff Islands; Fourth, as a right of property growing out of the necessity of gov- 60 ernmental control of the fur-seals, to prevent their destruction, and the alleged fact that such control can be efficiently exercised only by the Government whose territory is occupied by them at their birth, and while they are their property, ratione impotentia; Fifth, as a right of property based on the fact that, with the acquiescence of aU nations, established by the fact that no objection or protest was made or adverse action was taken by any nation for a period of ninety years, an industry was established, depending for its support upon the preservation of the stock of fur-seals, which will be destroyed if indiscriminate pelagic hunting is further permitted. This is the first international controversy that has arisen as to the right of property in or protection of fur-seals, and there is no case, in point, to which reference can be made as settling the law of nations on the subject. But there is no right, recognized by international law, that is opposed by the case of Great Britain to either of these claims of the United States to the ownership of the fur-seals in question, except the right of free fishing in the open sea. This right is claimed for its subjects by the Government of Great Britain, and is made to include fur-seals, as free swimming animals, fierce naturce. The universal right of free fishing in the open sea is established in the custom of nations, which is the law of nations, and is not disputed by the United States when it is conducted in a just and reasonable manner and against fishes or animals that are res nullius. The free right of fishing can not be exercised to make a lawful capture of fur-seals if they are not wild animals, or if they are animals wild in their nature, but have been lawfully appropriated by a government and are at large in the ocean with the purpose, of returning to the dominion of the owner, or under the compulsion of an instinctive necessity for returning to the dominion of the owner, which the animals habitually and periodically obey. The right claimed by Great Britain is in every sense a right to hunt and to kill game. The seals are never taken, as sometimes fishes are, for purposes of propagation, but only for their value when they are killed. The arts of fishing with hook and line and bait are never practiced as to fur-seals and would bo utterly without success. Catching them with seines or nets is impracticable as an industry and, when practiced, only small animals are captured and none are taken alive. That is only a method of capturing them by drowning. The death of the game is the only means of capture at sea, and that is conducted with the har- 61 poon and the gun—deadly weapons. The hunter attacks every seal within range of his weapons without discrimination or forbearance. His success depends entirely upon indiscriminate attack and slaughter, for he can do no less than that if he hunts with any success. His forbearance, after he has captured his game with seine or hook, may release it alive if it is found to be under age or size and it will grow to its full size; but capture of the fur-seal in the open sea is sure and instant death, and, as to the herd or species, it is swift and inevitable destruction. If this is "free fishing" it is such fishing as no civilized nation would tolerate within' its own territory in respect to any fish or wild animal as useful and as helpless as fur-seals. No civilized nation that has seal rookeries within its territory has omitted to provide laws for their protection against such hunting to the full extent of its powers. The indiscriminate killing ofi fur-seals is not, and never will be, sanctioned by the statute laws of any civilized country. This right of indiscriminate slaughter of fur-seals on land and sea can only be traced, and, in this case, has only been traced, as to its origin, to a custom of the savage Indians, who were forced to adopt it as a means of living. It is said to have thus gained its root in the law of nations. Civilized nations that have gained dominion over these Bavage tribes have taken control of the subject aud havereversed these laws of the savages in their application to their civilized subjects, and have forbidden them to enjoy this unrestrained privilege. But, in some instances, they have permitted the savages to continue the practice, because it is confined to short distances from the shores, and is conducted with such weapons and in such manner as is not seriously detrimental to the fur-seal species. Moreover, the fur-seals are a source of food supply aud of raiment, to deprive them of which would imperil their existence. It is also cheaper to permit their slight raids ou the fur-seals than it would bo to feed and clothe them. Finding this right, of savage origin, thus forbidden or restrained by the municipal laws of all nations interested in the subject, and that the uniform course and current of public opinion of the nations is directed to this end for the purpose of preserving the fur-seal species, are we to conclude, in the absence of any direct or conclusive ride of international law, that there is a principle or rule to be found in the laws of nations that sustains and upholds the unrestrained right as it existed among the savages to hunt or fish for fur-seals in the open sea in a 62 way and at times and places where tho practice insures the speedy destruction of the spjecies? The international law is a growth, and it is directed and shaped by the experience and the sedate judgment of mankind. In its growth it has displaced many rules and dogmas that have proven to be impediments to the march of civilization. Among the most important of these concrete rules that have thus been dethroned is thatlaw of nations which gave to Russia the right to declare the Sea of Okhotsk and Bering- Sea to bo closedseas. That was the international law when they were discovered and occupied by that power. It has since been changed. Russia., in 1824, yielded that claim to the advancing growth of international law, but did not yield to pelagic hunters the right, in those waters, to destroy fur-seals indiscriminately. liussia saw that the sentiment of the world, to which she sunendered the right of free- fishing and free navigation in Bering Sea, would protect her against tho then uninentioned and unclaimed right of visiting destruction upon her seal herds and the industry they supported, upon the pretense of the right of free fishing accorded to the United States and Great Britain. In this formative and progressive growth of international opinion it may well be asserted that the light of pelagic hunting, with its attendant right of indiscriminate slaughter of fur-seals, has lost the authority of its ancient origin among savages and is no longer a concrete rule or principle or even a reputable dogma of international law, in the application that Great Britain makes of it. International law is bn.-cd on the same recognized elements of right government that are at the foundation of nearly all the municipal laws of the great civilized powers. This concordance in the elements and structure of the two systems of law is established by many rules that are common to the municipal laws of such nations. In none of them is there a clearer or more distinctly recognized doctrine than that of rights acquired by prescription. In tho English common law an absolute title is acquired to any property after it has been in the open possession of the occupant and those holding under him for the period of twenty years. This is a rule of repose adopted for the peace of society. In those features it is even more useful between nations than it is between individuals. So potent is this rule that the courts of both countries have uniformly declared that any grant, will, deed, or statute, will be conclusively presumed to exist, that is necessary to support the title of the party who has held uninterrupted possession for twenty years, 63 No just reason can be stated why this wholesome rule, founded in the publicpolicy of both countries, should not apply to theinternaliona] rights in controversy between them, and should not include every interest in any property, industry, or privilege that has been, for the period of prescription, in the exclusive control and enjoyment of the claimant. Theopposing rights, whatever theymay be, are lost under a conclusive presumption of a superior title in the actual occupant. For more than seventy years GreatBritainstoodby and fully understood that Russia had the exclusive usufruct of the Alaskan seal herd and the exclusive control over them without making any question of that right. If the property had been au island in the sea, to which Great Britain had the actual prior right by discovery and occupation, her title woidd have been lost if she had suffered Russia to occupy, claim, and hold the island for twenty years under an opeu aud uninterrupted possession. The theater on which these conflicting rights are enforced has much to do with the limitations and restrictions under which they are to be exercised, if the animals are fierce naturce and are so classed by this tribunal. If such animals leave the land on which they were raised, and are found and killed on the land of another, they belong to him on whose laud they are killed, because-they are presumed to have escaped to a new place of habitation, and the owner of that place takes them ratione soli, as if they had been born and raised on his land. But if they are killed on the highway they are the property of him on whose land they were born and raised, unless they are shown to have escaped from his laud in quest of their former freedom or under the wild instinct of going at large, free from man's control. H seals are made property by the laws of the United States, and are found on the ocean traveling in search of food, the owner has the right to be there and to take care of them. If his presence is not necessary, because it is useless for the purpose of protecting them, and if they are identified as the seals that habitually resort to the Pribilof Islands by their being found iu the eastern part of the qcean, the law regards the animals as being in the constructive possession of the owner. Upon this rule of constructive possession the security of all commerce and all personal chattels most largely depends. It is an all-pervading element of property. Possession of a bill of lading, or even an oral contract for freighting carries with it the possession of a ship's cargo of fur-seal skins that the owner has never seen, and attends 64 them around the earth, onland and sea. All he is required to do to make his possession complete is to identify his property in any way he can. And, so, if the United States own the fur-seals before they cross the 3-mtte limit, and have a constructive legal possession of them up to that line, and if the seals are, for instance, nursing mothers going after food to nurture their pups on shore, with a fixed purpose of returning to it, the constructive possession of the animals is secured to the United States after they cross the 3-mile limit. Without this there could be no security for property in animals when they are not on the owner's land, even when they are within his view and he is guarding them in the best way he can. If the seals are wild animals belonging to the United States by the declaration of positive law, or ratione soli, or ratione impotentia, or by actual capture, and if this property is not lost when the animal goes into the ocean for food or pleasure, with the intent to return, or under an instinct that dominates its movements and leaves it without an option as to returning, one who captures it when thus atlarge deprives the United States of their property. If the captor is a citizen of the United States he is guilty of the double wrong of breaking the preserve of the United States, which is closed as to him, and of taking its property. That is poaching. If the captor is a British subject he commits a trespass on the property of the United States, because he found it at a place in the opeu sea to which it went lawfully and where it was constructively in the lawful possession of the United States. The case might be different, would be different under the English common law, if the seal, being a wild animal, should enter within British territorial limits and there be slain or captured. In that case the possession would change so as to give the right of property, ratione soli to that Government, and that right, or that lawful power over the animal would continue while it remained on British territory. But this is the only instance in which the United States would lose its right of property in the Alaskan fur-seal, born on its sod, while the animus revertendi continued to control its movements in its visits to the ocean. The indefinite right of private fishing in tho open sea, in favor of au individual, is too slight aud ill-founded to overcome the right of property in a nation that is trying to prevent the pelagic hunter from destroying a great production of commercial value, a source of revenue, and an instrumentality of government. Not that tho property rights 65 or lawful privileges of any man are less sacred than those of a State, but government implies the subordination of private rights, in a necessary degree, to the general welfare, and this is the first view of all rights taken by international law. It is on this principle that these two Governments have, in this treaty, substituted their international rights and powers as sovereigns over their people, and all their rights respecting fur-seals, and over the seals and the rookeries, islauds, waters, and their lessees, and compel them all to yield to a rule of international law, that the sovereign nations alone can deal with the inter- nationalrights of their people. If they should extend the existing modus vivendi perpetually, no citizen of either country could be heard to make complaint that his private rights had been thus destroyed, or that they were protected by any law that could save them from the power of their own government. H all the facts presented in this case establish that seals are property to be 'classed as domestic or domesticated animals, the .claim of the right to hunt and destroy them anywhere against the consent of the owner is without foundation. If cattle on the boundary line of Canada, where they are grazed in vast herds, and are almost as wild as buffalo, should wander across the border of the United States, that Government could not seize them without a violation of international law. The case would be stronger under that' law if the cattle were owned by the Government of Canada, or Great Britain. The right of property, ratione soli, would not accrue to the United States, for the reason that they are domestic animals in their universal classification, and that fact is notice to the world that they are the property of somebody, and are not res nullius. Whether fur-seals are fishes, or domestic animals, or wild animals, is to be determined, first, by the question whether the most essential facts of their existence occur during the period of their lives, on theland. It is possible to nurture them on land, by using proper appliances and food, and they can thus be made to increase in numbers, but that possibility only proves that they are not fishes. This is demonstrated in Paris and London, and elsewhere, by daily experience. It is not possible that a seal can be born and reared in the sea. It is, therefore, to be classed as a land animal, as its creation and birth can only occur on land, and these facts are essential to the existence of this animal. A singular faculty of the male seals, at least, of living for months on land without taking food, skowsthattkey may be kept out of the sea 11495 M 5 66 for one-third, at least, of their lives, without injury to them. If during that period they were sufficiently fed, there seems to be no reason to suppose that a visit to the sea could not be entirely dispensed with. Indeed, this is clone in menageries that travel inland, where fur-seals are kept for years in good condition without once entering the sea. While the sea is the place where their food is sought and found, it is no more the exclusive haunt for such purposes than the wdd mountains and plains in America are for the nurture of cattle, and sheep, or swine, or turkeys, or than the open waters of the sea are for the nurture of ducks and geese that are classed as domestic animals. It can not be the food or feeding grounds that distinguish between animals as land or sea animals, or as being wild or tame. In the case of all these animals the essential and controlling fact as to their classification as land animals or as fishes is that they can only have birth on the land, and are not fishes either iu form, structure, instincts, habits, or the necessities of existence. They can not breathe beneath the water. If they are essentially land animals the question of their domesticity is a very simple one. That fact depends upon their usefulness to man, their inability to escape from his control, and the certauity and regularity of the forces that operate to subject them to his absolute disposal. In these respects the seal has an adaptation and fitness for domestic use that is not so obvious and so certain and easy of control in any other animals. Domestication of other animals that are allowed freedom to come or go at pleasure depends, in a large measure, on their consent. In the case of the fur-seal, the nature of the animal and the conditions of its existence through a series of years, and also of its increase, compel it periodically and with certainty to submit itself to the power of those who own and occupy two small islands in Bering Sea. A similar climate, similar shores and coasts, and the same food have for many ages invited them to select other homes on the islands and shores of the same sea. They have never done so, and there is no ground for the conjecture that theyever will. The Pribflof Islands bear the maSt'ks of a long-continued residence of the seals in vast numbers upon their shores. The rough rocks are worn smooth from their hauling orer them. What are called the parade grounds of the hollus- chickie are described as being large areas of sandy sod worn and compacted to the'smoothness of a floor. The carpet of fur and hair felted together in the interstices of the rocks and in the sand could only have 67 been produced by many years of shedding seasons in which it was deposited. In all the close examinations that have been made by many observers and experts sent to the coasts and islands of Bering Sea and to the south and east of it, along the shores and islands of the Aleutian chain and the coast of the North American continent, not a sign or trace of any rookery or hauling ground has been found ".except upon the two islands of St. George and St. Paul. Neither the evidence nor any rational deduction from it conveys the least conjecture that they ever had any other home. No two distinct classes of animals have been or can be domesticated by the same means. Some have tho social instinct strongly developed, as dogs, horses, cattle, and sheep. Others are simply obedient to superior power and skill, as the elephant, ass, buffalo, llama, and reindeer. Others are domesticated through their greed for food and need of protection, as swine and poultry. Others do not look to man for any of these means of control or for food, as the fur-seals. Vet, in this lowest condition of the power of enforcing or inducing domestication by the art of man, the result of domestication—the dominion of man over them—is the most certain and the easiest of enforcement. Filling the most exact requirements of domestication, as to their subjection to-the will of man, no reason exists why they should not be classed as domestic animals. In the legislation of the United States, Russia, Japan, Chile, and the British colonies, where fur-seals go ashore to breed and to shed their coats of hair and fur, the utmost possible protection is given them that can be effected by municipal law. These acts of protection assume the rightful and full control of the animals, within these respective jurisdictions, disregarding all claims of citizens or subjects to rights of property in the animals, or rights of chase for the purpose of converting them into property. These acts go further and forbid hunting on land and sea during certain seasons, and in certain areas of the ocean, and the seals are appropriated by these Governments for revenue purposes through leases and licenses, for which a tax is paid. And even these privileges are confined only to the citizens of the respective countries and colonies. Iu the British system of fur-seal protection, the only country omitted from the list of colonies where seals are found is Canada. It has no coasts or islands on which fur-seals habitually land, and has, therefore, no interest in any rookery that requires protection. Canada lays broadside on the Pacific Ocean, near to the highway of 68 the fur-seals in their annual migrations in search of food, and causes them to be waylaid when they are bearing the future product, on which the preservation of the species depends, to that place where, for all time, so far as we know, they have gone to beget, deliver, and nurture their offspring. It has also a location near to the narrow passes through which these seals must pass on their journey to and from the Pribilof Islands. There they are waylaid and captured without dis-.* crimination as to age or sex and while they are at the absolute mercy of the hunters. They can e.asily concentrate there, in the open ocean, with vessels enough to exterminate the species by an ambuscade that the seals can not possibly avoid. If Canada shares the zeal for the preservation of the fur-seal species professed by Great Britain in her correspondence with Russia and the United States, and should exhibit practically her concurrence in the legislation of all the other British colonies that are directly interested in fur-seals, she would find ample opportunity to 1 egislate for their protection. The earliest practice of pelagic sealing in the waters of the North Pacific of which anything is definitely known, was conducted by Indians in the Straits of San Juan de Fuca, one-half of which ocean highway belongs to Canada under a treaty with the United States. Pelagic hunting is still conducted in these straits; and it is from those waters that nearly every sealing vessel is fitted out. It is there that the protection of the British flag is afforded to citizens of the United States to shelter them in violating the laws and public policy of their own country. It is in those waters that the pelagic catch of seal skins are assembled and sent to market. The hunting of fur-seals on the ocean at the passes into Bering Sea, and in that sea and in Russian and Japanese waters, is a great leading industry of the inhabitants of Vancouver Island. If the Pacific ports of the British possessions in America were closed to such traffic the seal herds would scarcely need other protection. With all these opportunities, Canada takes no part in any legislation for protecting fur-seals in the Pacific Ocean and is wholly out of sympathy with the professions of Great Britain of favor for these just and high purposes. Canada seems to have no respect for the opinion expressed in the legislation of other countries, and especially by all British provinces interested in the preservation of fur-seals; but, to maintain its hold on the seal herds, it urges Great Britain to insist that her people have the right, under the pretext of fishing, to appropriate to themselves any fur-seals found in the sea. 69 Great Britain, for political reasons, applies the doctrines of protection of fur-seals to all her other colonies, and quotes from the international law the established right of "free fishing" in justification of Canada for a practice that will result in the wholesale destruction of the species. While such contentions are insisted upon by this great power, it would be only injurious to the honest portion of the people of the United States for Congress to enact laws to punish pelagic hunting on the Pacific Ocean. Such laws would only cause a repetition of the practice on the ocean that was rife in Bering Sea before the modus vivendi of 1891 was established—that is to say, it would invite dishonest and unpatriotic citizens of the United States to seek the shelter of the British flag, while in its name and under its power they would defraud and dishonor their own country. It was not until Beriug Sea was closed, partially, to pelagic hunting of far-seals in 1891 and 1892 that this new source of danger to the seal herd was understood or appreciated. The results of closing Bering Sea to pelagic sealing caused sealers from Canada and the United States to concentrate their greatly increased forces in hunting the herd on the Pacific and in intercepting them in the Aleutian passes. This was not known until after the treaty of February 29,1892. This is a new and dangerous condition which the treaty expressly included in the purview of the powers of the Tribunal of Arbitration. It was in the last days of the negotiation that this important phase of the case was brought to notice and provided for. The question as to the justification of this plan of "fishing," if it is fishing, is as new in international law as the occasion that gave rise to it. Lf it is "fishing," the method of it is new, and was wholly unknown when the right of fishing anywhere in the open sea was recognized in the law of nations. If the right now claimed to be lawful under this new method is a total departure from fishing, as it was practiced when the right to fish was established, and is fatally destructive of the species of "fish" against which it is employed, there is no warrant for saying that it is sanctioned by international law. The abuses to which this practice must lead, as already developed in two years of experience, show that the claim set up by Canada of a right to "fish" for fur-seal with fleets of vessels and boats, armed with shotguns and prepared cartridges, and to Trill them indiscriminately, has but one element of the established right of free fishing, namely, that it is conducted on the high seas. Fishing with shotguns n the 70 ocean is new. It is an innovation that destroys the subject to which it applies. If this is a right which the international law must recognize, although it is almost universally denounced by municipal law, it must be limited to a reasonable use, as all privileges are limited. As it is practiced by pelagic sealers at this day it receives the condemnation of international law, because it sacrifices and destroys the benefits of the seal herds to the commerce of the world and imposes on the United States very serious burdens in preserving the seals for the private advantage of persons engaged in an organized hunt, whde denying the right of her own citizens to take them. The United States must protect the seals against her own people or else they will be speedily destroyed. If in doing this all her care and expense are turned to naught by a rule of international law, she can only abandon the seals to their fate, let the islands become barren of all value, and console herself with the reflection that her sacrifice adds a power to the international law that is more authoritative than the judgment of all the nations of the earth, except Canada. It is a new and very dangerous phase of the rights of fishermen that they can lawfully combine to destroy fish and use the agencies that are necessarily destructive of a given species of fish under the protection of international law. It is stfll more dangerous if they can lawfully waylay the fish at narrow passages between islands and destroy them as they approach the shores and bays of a neighboring nation, and yet more dangerous if they can lawfully form a cordon of vessels, with great numbers of men armed with shotguns, just outside the 3-mile limit, and can kill seals that are free-breathing as well as free-swimming animals, whenever they rise to the surfacefor air and come in range of their guns, while they are passing to and fro in search of sustenance for themselves and their offspring. Vet all these combinations and practices are lawful, if the right of pelagic hunting of fur-seals is the same—no more and no less—with the right of fishing in the high seas. It is not surprising, in view of such serious results as would follow the practice of pelagic sealing, and have already resulted from it, where it is placed on the samefooting with the right of fishing in the open sea, that the power to ordain concurrent regulations for its control, or prohibition, was given to a Tribunal of Arbitration. It is only by regulations, and not by advice, or by the statement of the principles of law that govern the case, that these matters can be settled. 71 The conclusions I have reached are: 1. That the United States have a property in the seals in and habitually resorting to their islands in Beriug Sea. 2. That this property is in the lawful possession and control of the United States when it is found on their islands, or within the limits of their territorial jurisdiction, and they have the exclusive jurisdiction to protect and preserve them within, those limits. 3. That this property is also in the lawful possession of the United States when the seals are found in the open ocean and, in such waters, they have such rights of jurisdiction over these fur-seals as any owner of land animals would have over domestic or domesticated animals, when found on the public highways. 4. That, as a sovereign power, the United States may punish its citizens for appropriating or destroying its property on the high seas; but they can exercise no higher powers over property so situated, when it is being appropriated or destroyed by the citizens of other countries, than a private owner could exert under like circumstances. IN THE DISCUSSION OF THE GENERAL SUBJECT OF THE* AWARD TO BE RENDERED BY THE TRIBUNAL, AS TO WHICH LORD HANNEN SUB- FOLLOWING REMARKS: I supposed that tho debate on the questions arising under the treaty had been closed, and that the members of the tribunal would now deliver their opinions, seriatim,- iu the order agreed upon. But Lord Hannen has made some criticisms on the attitude of the United States and the arguments of its counsel, that seem to open up the discussion of the whole subject, and I must not allow them to pass without notice. As I have had occasion several times to remark, during tho progress of the discussion before the tribunal, this is not a litigation between the United States aud Great Britain in which a judgment can be rendered by this tribunal in favor of one party and against the other for . a right asserted, or for property or damages which one party must gain and the other must lose. The treaty, which is a law to the tribunal, provides that each party, at a certain time, shall deliver its printed case to the arbitrators, and to the agent of the other party, in which its claims shall be fully stated. Thus two independent cases arc required to be stated and submitted for decision. This was done, and when it was done, the attitude of the two Governments, as to the claims they respectively submitted, was fixed and determined. This requirement was not observed by Great Britain, but other evidence not presented and submitted either in its case or counter case, was offered during the progress of the oral argument and was received and considered by the tribunal. • I I insist that these proceedings do not comprise one case, but separate cases. Th'ey are to be heard together, but they are not cross actions, neither are they consolidated actions, as is sometimes the 72 73 case, under the orders of a court having plenary powers. This tribunal has no such powers, but must decide each case, as it is stated and submitted, upon its merits. The simplest analysis of the cases, to which all other questions are merely incidental, is this: that Great Britain claims for its subjects the unlimited, unrestricted, and unqualified right of hunting and killing fur seals of all ages, sexes, and conditions at any place in Bering Sea and in the North Pacific Ocean, that is outside the ordinary territorial limit of 3 miles from the islands and coasts of the United States. That is the entire claim of Great Britain, as it is submitted to this tribunal in the British case. The United States claim the ownership of the fur-seals that are in, or that habitually resort to Bering Sea, and the right to protect them wherever they are found, outside the territorial limits of Great Britain. The tribunal should, in my opinion, have taken up these cases separately and have decided them, giving due consideration to the objections raised iu the counter case of either party to the case of the other party. The decision of the rights claimed in either case, does not, necessarily, dispose of the rights that are claimed in tho case of the other party. A decision that the United States has the ownership of theseals or the herd of seals does not affirm its power to extend its statutes into the Pacific Ocean and enforce them there against the subjects of Great Britain in any and every case of trespass upon that property that may occur, or may have occurred, even recently and upon hot pursuit of the offender. Neither would a decision to the contrary entitle the subjects of Great Britain, or of the United States, to hunt fur seals, up to the borders of the Pribilof Islands, in such force, aud by such methods as woidd seriously endanger, disturb, or threaten the industry and the revenue system that the United States has established there for the purpose of maintaining government on the islands and of encouraging the natives there in earning a support and in raising themselves to better conditions. It is claimed here, as it was claimed in the arguments of counsel for Great Britain, that the right of pelagic sealing exists, as to fur seals, under the international law, in favor of the subjects of Great Britain, and also in favor of the citizens of the UnitedStates, without any restrictions whatever. That no conditions of time, or manner of hunting the seals, or as to the age, sex, or other condition of the animals, or as to the 74 numbers engaged in hunting them, or that their purpose is to destroy fchem, or that their implements of warfare are most deadly, can operate to control the pelagic sealer outside the limits of territorial waters. This view of their rights is not disposed of by deciding that the United States either has or has not the right to protect the fur seals, but that question is pertinent in considering whether, under this treaty or in the international law, the- right of pelagic hunting of fur seals exists and whether it is an unlimited and unrestricted right. Lord Hannen has expressed the opinion that all animals found swimming in the sea, whether they are birds, fishes, or beasts, if they arc not within territorial waters, are the subjects of rightful pelagic hunting. Under such a law an animal that is domestic, such as a hunting or ducking dog, or a flock of tame geese, or ducks, or swans, would forfeit the protection of the law, and their owner would lose his property in .them in favor of the better right of the first taker, if they, in search of food or prey, should swim out on the water, as they often do, beyond the ordinary 3-mile limit, or that such fowls would be liable to the free sport of the hunter if they should fly through the air in their excursions beyond that limit. In the effort of Lord Hannen to apply to the fur seals a rule of property and the right of protection that would apply to wild ducks and geese, and to swallows whose nests are taken and used for food in China, he neglects to give due weight to the cardinal fact on which, in one aspect, the case of the United States is based. It is tho fact that the fur seals that are in, or that habitually resort to Bering Sea, are sui generis, and that no other fishes, birds, or animals that visit the ocean for food or pleasure have a certain fixed abode or home on land. His lordship omits to give due weight to the fact that no other animal visits its place of abode with such unvarying certainty, and that, when they are assembled they live upon very limited areas of land, and in compact masses, only separated from each other by the distance of a few feet and arranged upon adjacent grounds iu classes entirely distinct from each other, whereby the animals that are fit for slaughter for their pelts are kept entirely separate from those engaged in the duties of procreation and the nurture of the young. So peculiar is this trait that the young pups collect in groups, called pods, and separate themselves from all other classes of seals, and keep up the separation until they return to the islands the next summer after they are born. 75 Nature has not given to any other cl ass of animals, wild or domestic, ;: this clear indication of their serviceal )Ie quality for the use oi man and their unavoidable c lestiny to Decome s ubject to his complete d ominion. The wild geese and duck s and the swallows mentioned by Lord Hannen never lose the instinct of ei scape from man, which the seals have not except w hen they are in t he water, and even the re it can scarcely be called £ in instinct or habit, until it has been create I in them by the dl usage of pelagic hunters. When swallows, geese, anc .dncks ^ ish to escape from the presence of man they have, at all times, She mean s of escape on the wing which is their effectual met! lod of avo iding ca] iture. The seal on land are almbs ft entire y incapable of escaping death at the hands of man. The bre< iding pi ices of the wild ducks < tnd geese are scattered aroma d the who le earth, above certain latitudes, mil many species breed in al latitudes . They ire res nullius because man can not lay either his c es tractive or prest xving hand on them at pleasure. Would it be so) as 1 o their in ste or eg 2js, which may be taken at pleas- ure, or their young 1 >hat can n it escape , and are, ratione soli, the property of the owner of the soil? There is nothin j in the evidence relating to Chinese sw allows or their nests, but if they built I their nests on the rocks alon j the sea- coast, as I am informed they do, the nests belong to the owner of the soil as much as the honey collected by bees and stored in a tree that stands upon his land. But it is needless to seek for rules that will govern the rights of the United States in respect to fur seals by citing those that may militate against those rights when applied to fishes, i birds, or beasts, that differ from them in their essential and elementary ' instincts and do not invoke the duty of preserving them by laws, because they can not escape from man or protect themselves. I do not intend to examine the question of property, or the right of protecting it, with reference to the bearing and authority of cases de- S cided iu England or the United States. As far as analogies may be useful iu reaching just conclusions, they are found to support the contention of the United States upon the authorities that have been so ably discussed. Mr. Justice Hai'lan's very clear and cogent opinions on this view of the case, in which he quotes with approval from the text-books upon I municipal and international law, really leave nothing for me to say. I fully concur in what he has said on these topics. But I feel war- 76 ranted and required to add some other views, arising upon the whole treaty, as to the matters now under special examination. This being now a controversy between Governments, the questions submitted are to be decided according to the duty of the high contracting parties toward each other, both having the purpose of protecting and preserving the fur seals. This duty arises out of the treaty and a community of purpose, as it is solemnly avowed; and it is not admeasured by the international law, as would be the case where a controversy existed that involved the ownership of the seals, for instance, if they were claimed to belong to each Government, and the tribunal was required to decide as to which of them has the better title. The tribunal is intrusted with the power and has accepted the duty of providing for such concurrent action of the two Governments as wiU protect and preserve the fur seals, when it shall determine that the United States, in virtue of its own sovereign powers, and acting alone, can not preserve them. If the decision of any of the questions in this case is made to depend solely upon what is the declared international law, there could be no need for asking other nations to accept and ratify the award. Their acceptance of the award, as the correct ruling upon questions of international law, would simply amount to an affirmance of the legal propositions involved in it. All nations are bound by the international law, and, to accept a decision of this tribunal, by convention, that is merely in accordance with that law, would only be to agree to do that, by treaty, which they are already bound to do under the international law It is because no one can say that the international law determines these questions, that it is proposed hereafter to establish by treaty, in which all the States are requested to concur, what is their duty in giving protection to the fur seals. All property originates in municipal law or recognition, and no property is created, or defined, by international law. I admit the influence properly to be exerted by the judicial decisions on analogous questions by the courts of England and the United States, not as authority, but as argument, or precedent. I understand that the right and duty of protecting fur seals against indiscriminate slaughter is much more distinct and obligatory, than is the right and'duty of protecting animals that are less valuable and are not placed so entirely within the dominion of man. 77 I understand the treaty to make it the duty of the tribunal to consider the entire subject, in the light of the desire of the two nations to protect and preserve the fur seals, and to have it determined whether the United States has the right and power to deal, single-handed, with the subject of proper regulations to protect and preserve the seal herd. In this view, the attitude of the two governments towards the inquiries submitted to the tribunal is special and exceptional, and this is evidently a cardinal feature in the cases submitted to the tribunal. No other such situation ever existed, or ever can exist, between two nations and it must be provided for, if at all, by a special award, upon special facts, and not merely by seeking analogies in thedecision of questions, in municipal courts and between private litigants, about wild animals as to which a private right of property is in question. In either view of the subject, the right of property in fur seals is well founded. The rule of the common law, and the Roman law, as to the acquisition of property in animals that axe fierce naturce, when applied to fur seals, show conclusively that these animals are capable of specific ownership whde living. This is a great public matter that has engaged the attention of two Governments, and aU their geographical, industrial, maritime, and governmental relations enter into the proper consideration of the questions submitted to the tribunal. The peace between the nations is also a grave consideration for the tribunal, as well as the effect of the award upon the interests of Russia and Japan. The power to ordain regulations and to make them an essential part of the treaty is so interlaced with questions that are judicial, as to give to the powers of the tribunal and the award that it shall make, only such effect as the treaty provides—an effect peculiar to this case and not such as follows the judgment of a court. When the fur seals are properly protected and x>reserved by the award of this tribunal, the purpose of its creation will have been accomplished and the full limit of its duties will have been readied. Then the appeal of these two great powers to other nations, to accept the award, will contain no assertion that the award is a correct finding upon the international law, to which all nations are bound, without convention, but an affirmation that it is a just and salutary arrangement, reached by treaty, and suited to the purpose, in the Pacific Ocean and in all other seas, of preserving seal life and of restoring it to its condition before it was so nearly destroyed in the Antarctic Ocean, and so seriously threatened with extermination in the North Pacific Ocean. 78 I believe that in every step we take, aud in every decision we make in this matter, we should avoid abstract questions and inquiries that can have no practical effect upon the avowed purpose of the parties to protect and preserve the fur seals. The attitude of the two Govern- ments towards the admitted duty of preserving the fur seals in the future-; the powers they have exercised jointly and severally, over the subject in the past and in this treaty; the configuration of the Aleutian peninsula and the islands of that archipelago; the peculiarities of seal life, and the destructive methods of seal hunting in the open sea; the proper restriction, or necessary prohibition to be imposed upon pelagic sealing; the right of the United States to defend and protect its powers : of government, its revenues, aud topreserre its industry on the islands;! are all brought within tho scope of this inquiry, by the provisions of this treaty, and are all to be considered in determining what are the just and equitable rights and the duties of the high contracting powers'.;. Not merely the rights that would result iu a judgment for one party or the other in a suit by the United States in a municipal court for the recovery of the value of a seal killed by a pelagic hunter on the high seas, but that the just and honorable international obligation resting by agreement upon both Governments, will find authentic and final expres-J sion in the award of this tribunal. On all hands it is admitted that the award, when rendered, will constitute a stipulation of the treaty in the same sense as if it had been written in the text of the agreement by the high contracting powers. This being so, and the power of this tribunal to determine and establish concurrent regulations being a power to ordain, and not a juridical power to decide, and both being united in the tribunal and subject largely to its discretion, the facts that bear upon the judicial inquiries and upon the i>owers of ordination are the same, are made identical by the treaty, and are to be considered as one entire body of evidence, in, respect of both classes of powers. No abstract question of law is submitted to this tribunal. The law that is intended to govern this case in all its parts and phases is the law of justice, comity, trade, commerce, humanity, good will, and peace, in carrying out a common purpose of protecting and preserving the fur seal species in the interests of commerce upon the facts presented to the tribunal and such as are within the reach of its judicial knowledge. It is upon this view of the duties of the tribunal and of its powers and of the rights of the parties and the complexion they have 79 given to these inquiries and questions by tho treaty that I will examine the subject. The very general manner in which the questions submitted to arbitration are stated in the treaty, and the indefinite statement of the claims of the respective governments, the absence of direct issues of fact or law in the submission, and the unlimited range of inquiry as to all facts, whether historical or judicial in character, the geueral form in which all questions are stated in the treaty, seem to demand a broad and just award by the tribunal that will cover a great controversy that is entirely new. In the treaty of 1892, differing from all former treaties on like matters, the facts which constitute the foundation of the claims of the respective parties are not stated hypothetically, or in any form, nor are the questions that arise on those facts stated in any issuable form, nor are the rules of law or justice stated under which the tribunal shall ascertain and admeasure the rights of the parties. In this treaty everything is left to the ascertainment and the determination of the tribunal within very broad limits of inquiry upon certain topics. The only separate and specific duty imposed on the tribunal is that they wdl ascertain and declare the facts, and apply the law that, in their opinion, gives a true answer to certain sweeping inquiries stated in Article VI of the treaty. This is an exceedingly broad and comprehensive grant of power and discretion to tins tribunal of arbitration, in reference to a subject in which all civilized countries are interested, and is, to many uncivilized people, a source of supply of food and raiment. These great nations found occasion to project, if not to formulate and to establish by impartial arbitration, new rules of right and convenience, and also of jurisdiction, that are not distinctly stated in the international law, for the protection and preservation of the fur seal, to be enforced outside the jurisdictional limits of the two governments and of all other governments. In doing this they agreed to bind themselves to accept and abide by the rules that this tribunal shall adopt, and to cooperate in securing the adhesion of other powers to them. A course somewhat simdar was followed by them in the Treaty of Washington, of 1871. When the nature of this splendid fur is considered, and the fact that it is the only source of supply of large pelts that is available for the uses of mankind; aud that the fur seal is the only fur-bearing animal that can be preserved by law, on the priuciple of domestication; and that 80 its value, and the easy prey it offers to a combination of vessels and weapons for its capture have destroyed the species, in a commercial sense, in the southern hemisphere, and are rapidly destroying it in the waters of the north Pacific, it would only be surprising if Great Britain and the United States, whose people are alone engaged in this work of destruction, should not have agreed to provide some effectual means for the protection and preservation of this valuable animal. In the confident expectation that all the countries where fur seals are bred will adopt the methods of protection and preservation that this tribunal shall provide, to operate outside the acknowledged limits of exclusive, sovereign, national jurisdiction, if they are found to be wise, just, and practical; and that the Governments concerned will take proper care of these valuable animals, on their islands and coasts; these two Governments have instituted a plan for securing these ends, which is well adapted to that purpose. That result will be secured if the tribunal will exert, firmly and wisely, the high powers confided to them. The confidence felt by these Governments in the beneficial results of arbitration, is fully justified by their past experience, and has led, doubtless, to the increase of powers and discretion given, in the treaty of 1892, to this tribunal of arbitration. The whole civilized world is interested in the result, and many justly expect that the award, when made, wdl cover the great question of the proper protection and preservation of the fur seal species in such manner that the regulations may win the approval and secure the adhesion of all the maritime powers. It would be a serious dereliction of duty on the part of the tribunal if they should fail to deal with this great question in the broadest way, included in the purview of their powers, and should confine their declarations and award to narrow or technical grounds, or to a simple declaration of rights of property in fur seals, or to the powers, or jurisdiction to preserve or protect them in Bering Sea, and should provide no regulations under which these rights, powers, and jurisdiction should be enforced, or exerted, wherever the seals.are found. The necessity for protecting this property, Us pendens, was not fully understood, and could not be, until the close of the sealing-period for 1892, after the treaty had been concluded. In 1891 the destruction of . seal life, resulting from the catch of 30,000 seals in Bering Sea, by pelagic hunting, was estimated as being at least, equal to the number 81 killed on the seal islands. And this was the result despite the fact that the modus vivendi for that year was signed on June 15. The modus vivendi for 1892 was signed on the 18th of April, before the pelagic hunting had occurred for that year. In both these agreements of 1891, and of 1892, which were intendedp'n the first one, to carry out the proposed treaty, and the treaty as agreed upon and ' signed, in the second one, a prohibition of pelagic sealing was agreed upon and enforced against the people of each Government. These were "concurrent regulations," and the necessity for them was thus admitted by both Governments. They were not extended to the North Pacific, because the destructive effects of pelagic hunting there were not then known to the United States. Now, it is ascertained that the seal hunting in the open ocean and at the entrances to Bering Sea is even more destructive beyond the jurisdictional limits of both countries than it ever was in Bering Sea. These facts have been developed since the cases of the parties were delivered to the arbitrators. I am led to restate these facts in part and to repeat arguments I have had the honor to submit upon previous phases of this discussion, because of my earnest desire that the award of the tribunal should measure up to the opportunities and demands of a great occasion and should recommend itself to general acceptance by the civilized nations. The question stated in " point" five, of Article VI, of the treaty, relates to the right of property and the right of protection of that property, which the tribunal may fully decide without touching the question of the exclusive jurisdiction of Russia and the United States to provide for the protection of that property, if the right to it is found to exist. Those questions—"points"—as to the exclusive jurisdiction of the United States arose out of claims that Russia is alleged to have asserted and exercised "prior and up to the cession of Alaska to the United States," without reference to the question whether those claims were well-founded in custom, in natural or moral, law, or in the law of nations. The claim, or question, stated in point 5 of Article VI has a wholly different foundation. It is a claim of "property in the fur seals frequenting the islands of the United States in Bering Sea," and the correlative right of protecting them when such seals are found " outside of the ordinary three-mile limit," to the same extent that such right 1149.5 M 6 82 exists and may be protected when the seals are found inside the acknowledged territorial limits of the islands. This claim of property in the United States, if it exists and so far as it is not affected by prescription, is based upon the habits of the animals which make them domesticated property and subjects them -absolutely to the possession, dominion, and use of the United States by an irrevocable law of nature, which supplies a just foundation for its protective legislation. The right of " exclusive jurisdiction of the United States" to protect the seals "found outside the ordinary three-mile limit" is a right that is based on moral, or municipal, or international law, or upon all those laws combined in support of justice, the protection of commerce, and in aid of humanity and the peace and good will of nations. The right of the United States to this property is neither greater nor less, when it is based on the nature and habits of the seals, because Russia may have asserted or exercised " exclusive rights in the seal fisheries" in Bering Sea; nor is the right to protect the property necessarily dependent upon the answer to the question, " What exclusive jurisdiction in Bering Sea did Russia assert and exercise?" While this right and this jurisdiction are correlated, they are not identical, nor do they depend necessarily upon each other in the form in which they are stated in the five points of Article VI. If the arbitrators find that the United States have no." exclusive jurisdiction" to protect "the fur-seals in, or habitually resorting to the Bering Sea," such a decision must mean that, as between the United States and Great Britain, whose subjects claim the right to take the seals wherever found "outside the jurisdictional limits of the respective Governments," the consent of Great Britain is necessary in that area of the sea, to supply such lack of jurisdiction by " concurrent regulations" to suppress, or control, pelagic hunting. And, if the Arbitrators hold that they have no power, in that event, to protect the seals by ordaining concurrent regulations for that purpose, and if the United States have no lawful power to protect them, and, if Great Britain will not consent to a joint protection of them, they will perish utterly. If the arbitrators hold that the United States have the "exclusive jurisdiction" to protect and preserve the fur seals "outside their jurisdictional limits," (which is a solecism), because they are the exclusive owners of the seals; or, if they hold that pelagic hunting outside the ordinary territorial limits of three miles around the seal islands does 83 not so affect seal life as to make it necessary to establish regulations for the suppression or control of that xiractice, they will have no need to make any award further than to dismiss all that part of the submission and leave the questions submitted to them undecided. This would not be a "result of their proceedings" that would be final, "as a full and perfect settlement of all the questions referred to the arbitrators," but would leave the Governments confronted to each other, with no barrier between them to prevent hostilities in future. If the arbitrators should hold that the United States "has exclusive jurisdiction" to protect the fur seals on the open ocean, because the seals are their exclusive property, and if they should stop at that declaration, many questions as to the manner of exerting that right or power, which lie beyond that determination, would arise; such as the right of visitation, search, and seizure; and also questions as to the effect of statutes of the United States beyond the limits of their territorial jurisdiction, and also'the question of the condemnation of ships belonging to Great Britain, in the courts of the United States. Proper concurrent regulations, established by this tribunal, would result iu establishing the peace of nations, and the protection and preservation of a valuable species of animals, the destruction of which would seriously injure commerce, would deprive many thousands of people of remunerative employment, and would leave a blot on the civilization of the age. To hold that there is no necessity for the regulation of pelagic sealing by some power or some authority is to ignore the evidence in the case and the joint report of the commissioners appointed under this treaty, and the statement and opinions of the diplomatic representatives of both countries and of Russia and Japan. Canada alone has formerly contended that no necessity exists for regulating pelagic sealing, but that the Government has so far modified its views as to agree to the draft convention submitted to Mr. Blaine by Lord Salisbury, which proposed a close time for pelagic sealing in the North Pacific Ocean, and in Bering Sea. If Canada has not gone far enough in the right direction she has, at least, admitted the necessity of some progress, and has shown her willingness to conform her action to the views uniformly expressed by the Government of Her Majesty,' that the seals in Bering Sea and the North Pacific should be preserved, and that unrestricted and indiscriminate sealing should not be allowed. There is no dispute that this has been the avowed purpose of both 84 Governments in their long and exhaustive diplomatic correspondence and negotiations, and in agreeing to arbitration upon the whole " subject" of protecting and preserving the fur-seal in Bering Sea, and resorting to or frequenting that sea. But I think this matter is of sufficient importance in its bearing upon the duties of this tribunal to justify me in a concise statement of my views as to how the questions of difference arose between the United States and Great Britain, and how their treatment gave rise to the questions formulated in the treaty. The United States seized some of the sealing vessels employed in Bering Sea and they were condemned in their courts in Alaska, and thereupon the Government of Great Britain assumed the protection of vessels so employed under her flag, and made protest to the Government of the United States against their seizure and confiscation and against the arrest and punishment of her subjects sailing uuder the British flag, and made a claim for damages in their behalf. The first seizure was an American vessel, August 1,1886. Thus it was this diplomatic controversy had its origin in the insistence of Canada upon the claim of an unrestricted right of pelagic sealing without regard to the preservation of seal life, or the rights of the United States, or their interests; and it was, at first, confined to pelagic hunting of fur seal in Bering Sea. It was the abuse that grew up under the asserted right of pelagic sealing, as it was practiced by the Canadians, and not the arrest of the vessels that gave origin to this controversy. The initial point of the negotiations that resulted in the treaty of February 29,1892, was established iu 1887. It .was expanded into this treaty and has drawn after it, as an incident, the contention relating to jurisdiction over Bering Sea. . The contentions of the two Governments were confined to questions that affected their respective claims of rights, within Bering Sea, when Mr. Phelps, minister to Great Britain, on November 11,1887, brought the subject to the attention of Lord Salisbury, and then proposed, on the part of the Government of the United States, "that by mutual agreement of the two Governments, a code of regulations should be adopted," etc., for the preservation of the seals in Bering Sea, " entirely irrespective of any question of conflicting jurisdiction in these waters." Mr. Phelps wrote to Mr. Bayard, as foUows : His Lordship promptly acquiesced in this proposal, on the part of Great Britain, and suggested that I should obtain from my Government and submit to him a sketch of a system of regulations which would be adequate for the purpose. 85 On April 16,1888, Lord Salisbury, with a view to meeting the wishes of the Russian Government respecting the waters surrounding Robben Island, suggested to Mr. White "that besides the whole of Bering Sea those x>ortions of the Sea of Okhotsk and of the Pacific Ocean north of latitude 47 degrees should be included in the proposed arrangement." (See Appendix, Vol. i. to Case of the United States, p. 179.) This fixed the area of the " close time" 200 mdes south of the northern border of Washington State. He also suggested that the close time extend from April 15 to October 1. Mr. Bayard, through the plenipotentiaries of the United States, presented the proposal made to Great Britain and the assent of Lord Salisbury to the same, to the Governments of Japan, Russia, Germany, and Sweden-Norway, and asked their concurrence in an international convention to settle the question of pelagic fur-seal hunting, on the general basis of the informal agreement reached by the two Governments. Both Japan and Russia cordially assented to such .a negotiation, and Sweden and Norway said: The Royal Government having no interest in the seal fisheries, His Majesty thinks there is no need to take part in any treaty in reference thereto on the x>art of the United Kingdoms. He, however, exx>resses the desire that a mutually beneficial accord may be arrived at between the interested x>owers, aud that the same may be maintained, with a reservation that the powers not at present interested may join in such an arrangement in future, if they desire. Japan replied to the note of the United States October '8,1887, and , said: The unregulated and indiscriminate slaughter of the sea otter as well as the fur seal on the coasts of Japan and in their coterminous waters is a subject which has for many years engaged the attention of the Imperial Government. The experience of His Majesty's Government justifies the belief that the end sought to be obtained can be best secured by means of a cooperative international action, and they therefore cordially apx>rove of the suggestions of the honorable the Secretary of State. The Russian Government on November 25,1887, said: Mr. Wurts, under date of August 22 (September 2), was good enough to communicate to me the views of the Government of the United States of America upon the subject of the desirableness of an understanding, among the Governments concerned, for the regulation of the taking (la chasse) of the fur seal (loutres) in the Bering Sea, in order that an end might be put to those inconsiderate practices of extermination which threaten to dry uj>, at their source, an important branch of international commerce. We concur entirely in. the views of the Government of the United States. Like it, we also have been for a long time considering what means could be taken to remedy a state of things which is prejudicial 86 not only to commerce and to revenue, but which will soon work disas- . trous results, not only to the well-being but even to the existence of our people in the extreme Northwest. The establishment of a reasonable rule, and of a lawful system in the use (l'cxploitation) of the resources which furnish their only industry, is for those people of vital importance. The pressing interest which the Imperial Government has been thus called to consider had already suggested to it the idea of an international agreement, by which this interest might find its most efficient protection. It is by this way that the different questions involved can be best resolved, aud among which there exists, in our opinion, a close connection. The proposition of an accord emanating from the Government of the United States, and which we take pleasure in considering as a step toward that general solution, must, of course, but meet the sincere sympathies of the Imperial Government and its active supr)ort; and this I pray you to make known to the cabinet at Washington. Please receive, etc. Thus the four xiowers that include between their respective territorial X)ossessions all the waters of the North Pacific Ocean and of the seas in which the Alaskan fur-seal is found, were in complete accord and agreement that pelagic sealing should be regulated by their mutual consent. And Lord Salisbury, as late as February, 1888, informed Mr. Phelps that he assented to Mr. Bayard's x>rox)osition for a close time for fur seals between April 15 and November 1 in the Bering Sea, and stated that he would "join the United States in any preventive measure it may be thought best to adopt, by orders issued to the naval vessels in that region of the respective Governments." (See Apxiendix to American Case, vol. 1, p. 175.) The negotiations progressed thus favorably untU Canada interposed to prevent the settlement of the question as to which four great powers had practically agreed, and asserted that no close time was necessary. Canada, without diplomatic power or responsibility, still had power, through her political relations with Great Britain, to control and embarrass the dix>lomacy of the Imperial Government, even in antagonism with the interests of the British peoxde, as stated by Lord Salisbury. Without questioning the right or duty of Great Britain to consult the interests or wishes of her colony in the matter, it is a serious and dangerous embarrassment to the United States that they must deal only with Great Britain in settling difficulties that relate to the conduct of the Government of Canada. She issues fishery clearances to vessels belonging to her people, and under them the citizens of the United States are sheltered in their violations of United States statutes; and, when 87 they are arrested for the wrong, Great Britain is called upon to interpose, at the moment when she is negotiating with the United States for its suppression. This is a very embarrassing situation. On the 13th of August, 1888, Mr. Phelps held a conversation with Lord Salisbury, and urged the completion of a convention between the United States, Great Britain, and Russia, which had previously been the subject of discussion between these Governments. (See Appendix, vol. 1, to Case of the United States, p. 182.) Mr. Phelps says: This convention had been virtually agreed on, except in its details; and the Russian as well as the United States Government were desirous to have it completed. The consideration of it had been suspended for communication by the British Government with the Canadian Government, for which purpose an interval of several months had been allowed to elapse. Lord Salisbury's attention was repeatedly recaUed to the subject by the United States, and, on those occasions, the answer was that no reply from the Canadian authorities had arrived. During this interval, Canada was aiding with all its powers, as a Government, in supporting and aggravating the practices which Great Britain desired to repress, and thus left her in a most doubtful and disagreeable attitude in her relations with the United States. Mr. Phelps states further that— In the conversation on the 13th August, above mentioned, I again pressed for the completion of the convention, as the extermination of the seals by Canadian vessels was understood to be rapidly proceeding. His lordship in reply did not question the propriety or importance of taking measures to prevent the wanton destruction of so valuable an industry, in which, he remarked, England had a large interest of its own, but said that the Canadian Government objected to any such restrictions, and that until its consent could be obtained, Her Majes- - ty's Government was not willing to enter into the convention, that time would be requisite to bring this about, and that meanwhile the convention must wait. It is very apparent to me [says Mr. Phelps] that the British Government will not execute the desired convention without the concurrence of Canada. And it is equally apparent that the concurrence of Canada in any such arrangement is not to be reasonably expected. Certainly Canadian vessels are making profit out of the destruction of the seal in the breeding season in the waters in question, inhuman and wasteful as it is. That it leads to the speedy extermination of the animal is no loss to Canada, because no part of these seal fisheries belong to that country, and the only profit open to it, in connection with them, is by destroying the seal in the open sea during the breeding time, although many of the animals killed in that way are lost, and those saved are worth much less than when kiUed at the proper time. Under these circumstances the Government of the United States must, in my opinion, either submit to have these valuable fisheries destroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation. It was thus that Canada was permitted to intervene, as a Government, to prosecute the right of Canadians who were British subjects, 88 and not Canadian subjects in the international sense, and in a matter as to which his lordship remarked that "England had a large interest of its own," .and that "until its (Canada's) consent could be obtained Her Majesty's Government was not willing to enter into the convention." The propriety of that intervention by Canada was a matter between those Governments, but the embarrassment and damage to the United States was increased by the fact that Great Britain thus changed her attitude on these questions without changing her views of what was right iu the matter, as to the preservation of the fur seals. The United States were thus forced to abandon further efforts at cooperation with Great Britain and to vindicate their separate rights, and the diplomatic discussion was then directed to the property rights of the United States in the fur seals and the " fisheries," and to their rights of jurisdiction to protect and preserve them. It was in themanuerl have just stated and under these circumstances, that the United States was forced tp yield her efforts for a joint arrangement with Great Britain for the protection of the fur seals in Bering Sea, and to fall back ux>on her rights as owner of the seals, and of the industry based upon the security of these animals against indiscriminate slaughter. The situation was emergent, and the United States acted upon it to save the seal herd and to protect her rights and powers of government, which were indispensable to .that high duty, in that remote and peculiar region. The sex>arate and independent rights which the United States was thus driven to assert, were: First. That she had derived from Russia, with the acquiescence of Great Britain, the exclusive jurisdiction to control and x>rotect the fur seals in Bering Sea. This claim has been virtually decided by the tribunal, adversely to the United States, and I will not now discuss it further. Second. It was claimed by the United States Government that it is the owner of the fur seals that are in Bering Sea or that habitually resort to its waters and islands. Third. That if its claim of ownership of the seals can not be maintained it has a right of protection of seal life, to be exerted, as far as may be, under its separate jiowers of sovereignty, and if these are inadequate for their protection then it has a just claim that Great Britain wdl restrain her subjects, in conformity with concurrent regulations which 89 this tribunal shall determine in its award, from acts that are in hostility to seal life and destructive to it, taken as a whole. On these questions, I now propose to state my opinion as an arbitrator. I will discuss this matter further in connection with the right of pelagic hunting of fur seals, which is the only human agency that wars upon seal life in the waters of the ocean, and is the right claimed by the British Government as being free and unrestricted, in favor of her subjects. The claim of protection of and for seal life set up by the United States is, in its most enlarged sense, simply a question of jurisdiction as to which Government shall exercise the power to protect the seal herds outside the territorial limits of both countries. The right of the United States to have such protection is not more real or necessary if it is held to be the owner of the proxierty, than it is, as the owner of an industry which can not exist if the seals are destroyed. The industry on the islands, as it is conducted by the United States, is, in every sense, legitimate; it is useful to commerce and to other great industries in other countries; it is humane in its methods, and is the only means by which seal propagation can be practiced successfully. It is the only method that is in accordance with the avowed purpose of both Governments, expressed in this treaty, and in various other solemn utterances, of protecting and preserving seal life in the North Pacific Ocean. But above all this the industry based on seal life is the only valuable resource of living for the peoxile on the islands and coasts of Bering Sea, and if this is lost they must perish, if they remain in their native country, or else they must be fed and clothed from the Treasury of the United States. The preservation of the seals is, therefore, a right and duty of government on the part of the United States, which it owes to and must exercise in behalf of those citizens and can not abandon. The seal industry also yields a revenue to the United States that is valuable and necessary for the supxiort of government in that inhospitable region. If that country can enjoy the advantage of its only valuable resource—its only production of commercial value—without material interference with the positive rights of the British or any other peox>le, it is the duty of the United States to protect such means of existence and civilization for the benefit of the people there. In the efforts to do this, which have been crowned with the most honorable success, the United States have found it necessary as a measure of government, 90 to protect the seal herd and to indemnify its Treasury by levying a tax . upon the pelts of the seals taken under their laws and regulations. This public and governmental necessity and right is not denied, but if it was, the United States would still be the sole and sovereign judge 1 of that duty. In fact, the revenues so derived are not sufficient to pay all the expenses of administration in the perilous and costly police of th63 islands and the seas around them for the protection of seal life and the conduct of this industry. If we turn to the photographic plates produced in evidence, those historians that can not use words to abuse the truth, we see at a glance what it must have cost the United States already to have converted these desolate islands into places of decent abode, and those wretched savages into self-repecting people worthy of a place and a name among civilized and Christian peoples. The United States can not afford to allow these people to relapse into savage barbarity.' It can not abandon them to a cruel and destructive fate, and this tribunal can not afford to search for some reason for assisting such a relapse, alone in legal decisions made under municipal laws in England or elsewhere in private lawsuits between private litigants about pheas- ants and rooks and rabbits. These two Governments have found it necessary, in order to secure justice and peace between their people and to repress a slaughter of useful animals, which is wasteful, destrucrij tive, unnecessary, and inhuman, to remove the controversy beyond the reach of the influence of the mere cupidity of men eager, for private gain, into the higher plane of a contest between nations. It is no lou ger a case in which men who are citizens of the United States can accuse their Government of amean purpose of making illicit gainsfor its revenues by a tax on fur-seal pelts, or of aiding a monopoly granted to favorites; or in which renegade citizens can be allowed to abuse the laws of the United States by the surreptitious use of the flag of Great Britain. These Governments are pledged to find away, by means of the award the tribunal shall make, to protect and preserve these seals, and they cannot and will not permit them again to become the prey of private cupidity. It is only the private greed for gain at any sacrifice of great public interest and duties that calls in question the public right and; duty of protecting the seals by international action. To dignify this opxwsition of the seekers for private gain into a business that rises above the duty of nations towards the peace and prosperity of the world, the reckless and destructive methods of the pelagic hunter are raised to 91 the plane of the honorable and useful industries of mankind. This is . called in the British case and in the arguments of British counsel "the industry" of pelagic hunting or fishing; and it is claimed that it is legitimate trade, in competition with the trade and industry conducted on the Pribilof Islands by the United States. An industry that destroys and exterminates the subject to which it is applied is not deserving of this honorable definition. But, treating it as a just and honorable industry, will Great ^Britain, now that it has taken up the duty of preserving and protecting this fur-seal industry on public account, publicly license and conduct fur- seal hunting, in the way and with the destructive effect that it is being prosecuted by its own subjects, and by citizens of the United States who abuse its flag by making it a shelter to protect them against criminal responsibility to their own Government? Is it true that under this treaty, which leaves this tribunal to deal with these questions as matters that concern justice, peace, and comity between nations, and not as mere private rights, the Government of Great Britain claims for itself, as a government, or for its people, the right to pursue this industry in the present destructive and cruel way in whichit has been and is being conducted? If the strict legal right of pelagic sealing attends and legitimates this industry in all waters outside actual territorial limits, and makes it lawful to surround the seal islauds with ships and to kill the animals as they come and go from the islands to the open sea, does Great Britain, under this treaty, claim that the right now exists in this unqualified extent, in favor of its subjects, or that it comports with the pledges of this treaty that the seals are to be preserved and protected? Great Britain has taken the right to pursue this industry from the hands of its subjects, on the grounds of public policy and of duty to the United States, and has submitted them to this tribunal for decision. If the "industry," as it is pursued, is legitimate fishing, and if it could have received the sanction of the British Government, this serious wrong to her subjects in depriving them of it could not have been done. It is said by counsel of Great Britain that, in the case supposed, of a cordon of ships drawn up around the seal islands, waylaying the seals in the breeding season as they come from and go to the sea for food and killing them indiscriminately, that such an act would be malicious and the United States would treat it as a casus belli, within the right of nations under the international law. 92 The right to give such an interpretation to such conduct means that the industry of pelagic hunting, like all other pursuits, however legiti- • mate, is qualified by the demands of justice that are due to all other nations. The international law neither requires nor sanctions a resort to war for the protection of the plainest rights, if they can be peacefully maintained without detriment or dishonor. This tribunal can not, in justice to itself, adopt the suggestion that it must leave the industry of pelagic sealing, in view of this treaty and its great purposes, so loosely defined and so free in its privileges and I so licensed to maraud upon the rights of the United States, that an assemblage of sealing vessels in Bering Sea, sufficient to destroy the seal herd in one or more seasons, is lawful. If it is malicious it is admitted I to be unlawful and that in such case the only remedy is war. In such case the United States, being forced to judge of the evil and to provide the remedy, would, as any court of justice must do, impute the malice to the nature and consequences of the act. This tribunal is authorized to act upon the same presumption in prohibiting this evil. Following up this right in all parts of the Bering Sea and in the Pacific Ocean, the United States would justly impute malice—a purpose of wrong-doing—to all acts that warred upon its revenues, in respect to fur-seals, during the period of resort to the islands. This I action of the United States would find its full justification in the doctrines stated by counsel, which should be adopted in the award in this case. If it would be right to resort to war to prevent or redress such wrongs, the more peaceful remedy can not be contrary to the law o( nations. If we follow the British contention as to the rights of pelagic sealers, and refuse to x>ut any restraints upon pelagic sealing, instead of mak ing an amicable settlement of the controversies that called us together we would leave new and burning questions open between these Gov ernments to be settled by war. It is not to be expected that the United States, if left by this tribunal to the duty of defending itself against the abuse of rights accorded to pelagic hunters, without any restric tions being imposed upon them, will fail to avaU itself of the necessary means of doing that duty. I now turn to other views of this subject which I think are made nee essary by what has occurred in this case. The unrestricted right of pelagic sealing has been supported by the assertion that it is the only way in which a monopoly in the fur seal 93 I trade, growing out of the ownership of the seal islands by the United States, can be counteracted. The commercial attitude of the United States towards the supply of the markets of the world with the pelts of the fur- seal, is the same that all countries hold in respect of any valuable commodity that is a peculiar product of the soil or climate. The incentive of commercial ^interchange, the necessities of the consumers, and the laws of supply and demand are simply left to regulate the outflow of such productions into the open channels of commerce. If the United States, alone, produced fur seals, the Constitution of that Government, which prohibits all duties on exports, affords a guaranty that no other nation has given against the possibility of a L monopoly in the pelts of that animal. But Russia and Japan yet remain as active competitors in this and other branches of the fur trade, and their care of this industry and the . distance of their sealing islands from the coasts of Canada and of the United States and the difficulties of navigation in their seas are likely to preserve a large proportion of their seal herds from destruction for many years to come. Many peltries will be thus supplied to commerce, in competition with those that are taken by the United States. If the regulations of seal hunting, that are found necessary by this ^tribunal to preserve the species, are adopted by those Powers along whose coasts and islands the fur-seal formerly abounded, the number of these animals will again increase in the southern hemisphere until the world will have, again, an abundant supply. The course of the United States in reference to the care and nurture of seal life is directly opposed to the engrossment of this product in the way of monopoly. On the contrary, that Government has shown its anxiety to preserve and increase the stock by its regulation of killing on land, by forbearing, during three seasons, from taking seals in excess of 7,500 which were reserved for the support of the natives, and by reducing the number of seals that the lessees were entitled to kill "from 100,000 to 60,000 per annum, at the possible risk of pecuniary lia- bdity to the lessees. Besides this, the expense of agents and superintendents of the islands and of guarding them from the raids of poachers, is very considerable. Itis difficult to conceive that a government could have done more, or could have acted in better faith towards other powers, in a matter where there is an acknowledged public trust arising from its possession of the seal islands. 94 Tariff duties that prohibit or strongly tend to the exclusion of imports, so as to benefit the special industries or productions of a country, are in the nature of monox>olies of the home markets and are generally enforced by enlightened governments. And they do not stop to inquire as to the injuries that such laws may entail upon other countries. Tobacco is not extensively produced in Europe, and several of the European governments purchase the stock, chiefly from America, and manufacture and sell it on government account, and fix the prices that consumers, in those countries, must pay for the manufactured article. This monopoly works an injury to manufacturers in America, but no one has thought to make complaint against the governments that create it, in respect to an American production. In this important matter the Congress of the United States has no power to protect the producers of tobacco or the manufacturers by an export duty on tobacco. Many other instances of monopoly of trade could be cited to shows! that it is essentially a power of government which any nation may rightfully employ to provide for its revenues and the welfare of its people. There is, really, no conceivable case or condition connected with the industry of the fur-seal fisheries in which the United States could monopolize this trade, except by destroying, as rapidly as possible, the seals on the islands. When a government finds it necessary to protect these animals against its own people, as well as against those of other countries, by assuming to itself their exclusive ownership, a monopoly is the invitable result and it is indispensable to the safety of the property. This sort of monopoly is a part of the duty of government and of its legitimate powers. It is both the right and the duty of the United States to assume and to exert ownership over these animals, in order to extend to them the protection that is due to useful domesticated animals. The legislation of nearly every government upon whose shores or islands fur seals resort habitually for breeding purposes assumes over them a government control for their protection and the right to raise revenue out of them, which is based on the right of appropriating them to governmental uses and purposes, so that aU those governments are in that sense, monopolists. Such control can not be less than an assertion of a right of property, for it prohibits all persons from asserting a claim to them'on private account, and it makes them a source of revenue. These may be justly called laws for the domestication of the fur seals— 9.5 laws for converting them into property as domestic animals. They differ from game laws, which protect wild animals in order to secure a greater supply for the common use. All this legislative tendency indicates, in the plainest manner, a concensus of opinion and a common movement in the direction of classifying fur seals as domestic animals in respect to their protection by positive laws. Why this universal sentiment should only be resisted by ' Canada for x>urpose of assisting her people in making selfish gain, is an inquiry that only gives point to the suggestion that the interna- tional law should conform to the general municipal law on this subject. The careful examinations aud reports of many eminent naturalists, supported by a general and distressing experience as to the extinction of the fur seals, first in the southern hemisphere and now in the northern, has set the local lawmakers to work in contriving statutes to stop these destructive practices and to restore the herds to their former status. All these laws are based on the fact that government control of the seals is necessary for their preservation, and that the seals are entitled to the same protection ofi the law, suited to their nature, as other domestic animals. As this subject is now presented for the first time to an international tribunal, and in a controversy between two great powers, and as the origin of the questions so presented is of a very recent date, and as no direct precedent or discussion exists to guide or control the judgment of this tribunal, a proper occasion is presented for declaring that these animals should have the same classification under the international law that they have under the municipal laws of all countries that furnish a resort for the fur seals during their period of compulsory living on land. Such a declaration would not create a new rale of international law; it would only apply the rules that may now be termed universal law, in municipal legislation, to that area of the earth's surface in which there is no supreme law, because there is equal sovereignty in all nations, and would include in those rules the preservation on the high seas of animals that are so serviceable to man as to deserve to be classed as domestic animals. All useful animals are subjected to domestication by the divine decree that gave to man the dominion over the beasts of the field and the birds of the air. Laws for the protection of animals are elaborately provided and are made cardinal features of all civil codes and of the moral code of the Pentateuch, This benign system has expanded from age to age so as to admit within the circle of domesticated animals, that are protected 96 by laws, all that have been found of common use for food or raiment, and are, by their habits, capable of identification with reference to separate ownership, such as shell-fish yielding pearls, oysters, clams, corals, sponges, etc., and a large number of animals that were not so classed until within a recent period. The tendency has been uniform to enlarge the scope of the laws so as to include all animals within the classification of domestic animals, as occasion has presented, and no animals have been permitted to be relegated to a classification as wild animals, that have been once included in the protection extended by the laws to domestic animals. Any other rule of action would deny to all new conditions that are valuable, the protection of the principles of international law. The domestication of animals by general usage, or by law, attaches to them the presumption that they are exempt from slaughter at the will of anyone who may choose to kill them. Within the field of operation of such laws, such animals are .protected as all domestic animals are protected. Outside that jurisdiction, they are protected by comity, or by the application of principles of international law, derived from municipal laws, or else from the sentiment or the necessity that lies at the foundation of municipal laws. • Those principles are justly founded on the general usefulness of the animals to mankind, and the consequent necessity for giving them protection. The international law should attach to them the same presumption of domesticity that is attached to them in such cases by the municipal law. In matters like those submitted to us the opportunity occurs for a formal declaration, which, by treaty agreement, is made obligatory upon two great powers, of the relation that these animals should bear to the question of their preservation, in the international law. That relation is uniform and unbroken, except in the laws and usages of Canada, in all the legislation of all the municipalities that have any interest in the subject. It is nothing less, in effect, than a declaration of those legislatures that fur seals, by reason of their value, their helplessness to resist or escape from the power of man during a large part of every spring, summer and autumn, their docility and the absolute necessity of giving them that protection by positive law that nature has denied to them, should be classed and are entitled to be classed in fiavorem vitce, as domesticated animals. I can not understand how it can be possible, in view of the facts, that 97 this Tribunal should declare that they are wild animals in contemplation of law, and shall have no more shelter against the greed of man, assisted by his genius in the invention of instruments of destruction, than they have against the killer whale. That their only protection shall be their capacity, in the water, to escape pursuit, out of which element they must spend nearly half the period of their lives, is too imperfect a shelter for such a valuable contribution to commerce as these animals yield, to receive the sanction of the great commercial nations. 11495 M 7 REGULATIONS. THE TRIBUNAL, HAVING DECIDED THE OTHER QUESTIONS SUBMITTED TO THEM UNDER THE TREATY, PROCEEDED TO THE CONSIDERATION OF THE SUBJECT OF PROPER REGULATIONS FOR THE PROTECTION AND PRESERVATION OF FUR-SEALS IN THE NORTH PACIFIC OCEAN, INCLUDING BERING SEA. On this topic Mr. Senator Morgan delivered the following opinion: I have heretofore insisted that when concurrent regulations are adopted they will be the result of the power of the Tribunal to agree upon and stipulate a feature of the treaty, in resj)ect of pelagic hunting of fur-seals, as between the two Governments; as much so, as if the regulations had been formally agreed upon and written into the body of the convention under which we are acting. I understand that this point is agreed to on the part of all the Arbitrators, and I so state it. (2) The Arbitrators, in the exercise of these powers, must act as impartial negotiators, as they hold their authority from both the High Contracting Parties, under the treaty; and, their award being final, it is sanctioned and sustained, if it is within the purview of their authority, by the sovereign powers of both Governments, pledged in the treaty in advance of the decision of the Arbitrators. I also understand that this point is not disputed. (3) The regulations we shall adopt are in no sense judicial decisions, though they are based upon principles of law declared by the Tribunal, nor is the power, or duty, of making them, so as to-protect and preserve the fur-seals, restrained or controlled so as to conform to the personal interests of pelagic hunters or the national interests of the United States. The two Governments have removed such considerations from the scope of our duties by assuming absolute control of the entire subject, which was found necessary to be done in order to properly protect and preserve the fur-seals in the interests of commerce and humanity. In like manner they have excluded from our consideration, 98 99 according to the decision of the Tribunal, the question of gain or advantage to the United States, as a Government, resulting from the preservation of seal life. The modus vivendi, established for three consecutive sealing seasons took the highest possible governmental authority over the fur-seals in Bering Sea, and during those seasons prohibited all pelagic sealing in those waters. This is a virtual declaration that fur-seals, while swimming freely in the ocean, are capable of being treated as property and are subject to the care of the two Governments. The last of these agreements is incorporated with and made a part of the treaty of February 29,1892. (4) The true attitude of the question we are now to consider is simply this, to use the language of the treaty: "The arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend," "for the proper protection and preservation of the fur-seals in or habitually resorting to the Beriug Sea." It is not possible that the power to determine regulations to operate outside the jurisdiction of the two Governments, which can only include pelagic sealing in the waters of the Pacific Ocean and Bering Sea outside the territorial limits, can be so stretched, without a bold usurpa- tion, as to include the killing of seals on the land. It is quite as impossible to suppose that either government intended that by concurrent regulations this Tribunal could provide laws for either Government that should operate as laws within the actual bound- aries of the other. When the power is given only to determine "over what waters such regulations should extend," it is not possible to conceive that the Tribunal has the power to determine over what lands 'or islands they shall extend. This power is so clearly withheld from this Tribunal by the treaty that its exercise would be ultra vires, in any form or for any conceivable purpose. So that we have in the body of this treatythe statement and actual enforcement of the power of the British Government to dismiss from consideration the personal rights of its subjects, under international law, in respect to pelagic hunting, and the assumption by that Government of supreme and absolute control over them and their rights. All this was done for the purpose of making the matter of concurrent Beg- 100 ulations a question between the two Governments, to be controlled by the mutual international policy ofi protecting and preserving the Alaskan seals, as to which purpose both Governments are in accord. They agree as to the national duty of both Governments to protect and preserve these fur-seals, and have only disagreed as to the rightful and best method of executing this duty. (5) There is no mistaking the exact nature and extent of the power conferred on this Tribunal. It is simply the power to determine concurrent regulations for the x>roper protection and preservation of the fur-seals in or habitually resorting to Bering Sea, and to designate the waters that should be included in such regulations. If this Tribunal bases its award upon the effect that such regulations are to have on the rights or profits of pelagic sealers, they rebuke both Governments for havingassumed the whole responsibility of that subject, and for having retired from view the private rights of their citizens under the international law, and for having subjected them to such municipal laws of the respective Governments, to be enacted in conformity with the aware", as shall accord with the avowed public policy of those Governments to preserve and protect the fur-seals. These Governments have not invited us to decide how far this policy, mutually agreed to and declared in the most unequivocal terms, shall be obstructed by our efforts to take care of the interests of their citizens engaged in pelagic sealing. They have assumed that duty and will doubtless respond to it. Both Governments would rejoice if the x>reservation and protection of the seals in question would admit of the greatest extent of pelagic hunting by their citizens consistent with the prudent and humane treatment of these useful animals. But they carefully considered that question and appointed a joint Commission to make examination into all its bearings. That Commission made a joint report before the treaty, signed February 29,1892, had been ratified by either Government, in which they say: "5. We are in thorough agreement that, for industrial as well as for other obvious reasons, it is incumbent upon all nations, and particularly upon those having direct commercial interests in fur-seals, to provide for their protection and preservation;" and further, they declare that—"7. We find that, since the Alaskan purchase, a marked diminution in the number of seals on, and habitually- resorting to, the' Pribilof Islands has taken place; that it has been cumulative in effect, and that it is the result of excessive killing by man." 101 These two Nations,'acting on this report, and upon other ascertained facts of the gravest character, took the subject into their own hands and provided for the determination of concurrent regulations by this Tribunal, to operate outside the jurisdictional limits of the two Governments, on the water and not on the land, for the protection and preservation of these fur-seals. The subject of regulating the seal herds on land was not mentioned between the Governments in their negotiations, nor in the treaty; doubtless for the reason that Great Britain saw that it was the interest of the United States to protect and preserve the seals and to promote their increase, and had no cause then or since to doubt the good faith of the United States in the use of every means that would contribute to that end. "The excessive killing by man" that the Commissioners agreed- to report could not have been the killing by the United States on the islands of St. Paul and St. George; otherwise, that fact would have been mentioned and made the subject of negotiation. The protection and preservation of the seals against excessive killing, is the killing upon the waters outside the jurisdictional limits of both countries. It is beyond a reasonable doubt that it was pelagic killing that was considered by the United States and Great Britain as being so destructive to seal life as to make it incumbent upon all nations to provide for their protection and preservation, and was especially the duty of these two powers. To do this, these Governments agreed with each other to place this question upon the high and just ground of international duty, disregarding the profit that might accrue to the subjects and citizens of both countries from the indiscriminate slaughter of the fur-seals, or to the United States from preserving and .increasing the number of fur-seals. (6) This Tribunal is to make regulations that apply to this herd in its present condition, and not with reference to some former condition. The most eonsx>icuous fact in thex^resent situation, and the dangerous fact of the inevitable future, is this, that the fur-seals will disap- Xiear rapidly if thejielagic hunter is able to makethat business profitable on the sea and to make it unprofitable on the PribQof Islands. Either ofi these results will destroy the fur-seals rapidly, and both of them would make the destruction sudden, and that without remedy. And if one result ensues, the other must follow speedily. This treaty also requires this Tribunal to consider and decide concern- 102 ing the rightsof thesubjects and citizensof either country as regards the taking of fur-seals in or habitually resorting to Bering Sea. Whether this question has been decided or remains to be decided the Tribunal. has not yet come to any resolution. That subject, though I have demanded its separate examination and decision, has been passed over by the Tribunal, but in either case I will assume that their rights must be equal and that there will be no discrimination between- the people of the two countries as to such rights. If the right is given them by this award to scour the North Pacific Ocean and Bering Sea at all seasons of the year, with aU descriptions of firearms except rifles, and with such number of vessels as may be tempted into the business by its profits, assisted by steamers to carry off the catch so as to keep the hunters steadily employed in killing seals, it will not be possible for the Congress to prevent the citizens of the United States from sharing in the raids upon the seals equally, with British subjects. I mean that the jieople of the United States would withdraw their support, as they should do, from any body of representatives that would tolerate such an injustice, and all seal hunters and many thousands who are not, would rush in to destroy them as they did in 1868. We can not expect to impose upon the United States the duty of keeping up this expensive and harassing plan that it now maintains in good faith and perfect honor for the preservation of the fur-seals when we condemn the seals to certain destruction in the face of the avowed policy of both countries that they should be protected and preserved. We can not expect the United States to maintain its prohibition of pelagic sealing in Bering Sea as to its own citizens when we enjoin it upon that Government, as a moral duty and a treaty obligation, to repeal her laws as to restrictions upon British subjects in that sea. This is what the United States must do, under concurrent regulations framed upon the plan of Sir John Thompson, or else it must violate the spirit of the treaty, if not its letter, as it is to be declared in such an award, because of the disadvantage to its own people. We can not thus condemn the policy of the United States in its faithful efforts to preserve seal life, and expect that Government to maintain its rigorous laws against its own citizens. If we extend an invitation to other nations to enjoy equally with Great Britain and the United States the looting of the seal herd in the North Pacific and in Bering Sea, we pledge the honor of these 103 Governments that they will sustain the rights of all nations, both in a moral and national sense, in like invasions of the herds of Russia and Japan. The flag of the most insignificant power in the world will have the pledge, through such an award, of perfect immunity and protection while raiding the North Pacific Ocean and Bering Sea with all implements of destruction, not excepting any, and in such number of vessels and of such tonnage and description as they choose, not excluding steamers, and without having a license or a distinctive flag. A recent event has demonstrated the fact, if it needed any demonstration (as it does not), that the little kingdom of Hawaii will, through the help of renegades of the United States and Canada, grow rich in renting her flag to them in order to take advantage of the scheme presented here by Great Britain as her project of regulations. Why these two Governments should thus create such a destructive fatality to seal life through the award of this Tribunal while professing the wish and purpose of protecting it is quite beyond my ability to comprehend. The regulations submitted by the respective Governments for the consideration of this Tribunal must be regarded as their official statements of the basis and plan of settlement proposed by each, and not as the ultimatum of each Government, between which we are to choose by accepting the one and rejecting the other. And, as no plan or formulation of regulations is stated in the treaty or alluded to, this subject is left to the judgment of this Tribunal, which is at liberty to discard both schemes or to adopt regulations that neither Government has suggested. The only limitations on the power of the Tribunal in this regard' is, that the regulations shall be concurrent and, therefore, uniform as to both Governments, that they shall relate to waters that are outside the jurisdictional limits of either Government, and that they shall be "necessary » » * for the proper protection and preservation of the fur-seal in or habitually resorting to Behring Sea." The treaty also furnishes a guide as to the general nature of the regulations, that they should be such as to claim, for their international support,the adhesion of other powers to such regulations. It will be observed that the invitation of the two Governments to other powers, that they will give their adhesion to this treaty, relates only to the regulations we are to provide. Ithas no relation to any other part of the treaty. The object of this invitation was not so much to prevent other powers-from encouraging pelagic sealing in Bering Sea, 104 or the North Pacific Ocean, as it was to obtain their consent to regulations that would preserve and protect fur-seals in the waters in which they are found anywhere in the world, if they are generally adherred to. No nation except Great Britain has found itself interested in the hunting of the seal herd that resorts to Bering Sea. The people of other nations have not carried on pelagic sealing in that herd, or in the waters of the North Pacific or Bering Sea. If the regulations that we adopt are founded upon or modified by the x^eculiar interests of Canada, or the United States (as is proposed in the British case), the other powers will find that they are in no sense international, but are entirely local; that they adopt no general principle of action for the protection and preservation of fur-seals, but are only an expedient devised to get rid of a particular controversy between the United States and-one of the provinces of Great Britain. We could not ask other powers to adhere to regulations based on grounds so narrow and selfish. It would be in effect only a request that they would agree not to interfere with this herd of seals while they are being divided, according to an award of this Tribunal which apportions them between -the United States and Canadian sealers. The regulations presented by Sir John Thompson appear to be based upon the recent modus vivendi agreed ux>on between Russia aud Great Britain, to which the attention of the Tribunal has been called. Russia appears to have accepted that arrangement as a mere temporary check upon the aggressions of the pelagic sealer, and has accomxianied it with reservations and protestations that show her extreme unwillingness to adox>t it as the final definition of her rights. If the award of this Tribunal should thus conform to the i>lan adojited in the Anglo-Russian modus vivendi, it will either force Russia into terms of final agreement with Great Britain that she would not otherwise ado])t, or it will show a wide distinction between Russia and the United States in treating with Great Britain about a subject of the same character, and in reference to the same body of waters. Russia could not finally adhere to the regulations proposed iu the programme xiresented by Sir John Thompson, without agreeing to all that Great Britain is demanding of her, against much of which she is firmly protesting. Before stating the form of regulations to which I would x>refei to give the supx>ort of my voice in this Tribunal, I will state some conclusions of fact that I have drawn. from the evidence as to the 105 character of the regulations which are necessary to execute the purpose of both Governments to preserve and protect the fur-seals of the Alaskan herd, and that would also answer a beneficent purpose m accomplishing the universally declared wish of all nations interested in the subject of protecting and preserving seal bfe, and in repairing the damage that has been inflicted ux>on it by raiders in the absence of governmental protection. This, I take it, is the real ground upon which other powers are to be invited to give their adhesion to the regulations that this Tribunal may determine aud award as between Great Britain and the United States. The regulations, bke all enactments of laws that are remedial in their character, are to be framed with a view to givhig relief against an existing evil, and this can only be wisely and justly accomplished when the nature and extent of the evil is first ascertained. When that is done, the nature of the evil suggests the character of the remedy, and we can not frame the remedy that we are to x>rovide so as to merely check the evil for a time, leaving it to burrow and work its havoc at a date that is more accex>table only because it is more distant from us. The occasion requires a just, serious, and firm attitude as to a question of great imx>ortauce to the whole world. I will now state, as I gather from all the evidence before us, what is the evil that these Governments have found to be so threatening to seal life in the Alaskan herd as to draw them into an agreement that it should be rex>ressed by their concurrent action. I will not attenix't to examine again the details of the evidence, so thoroughly resented aud with such judicial impartiality, by Mr. Justice Harlan. I can find no flaw or omission in his careful statement of the evidence, or in the conclusions that he drew from it as to matters of fact. I believe that he stated the exact truth of the situation, and I fully concur in his treatment of the subject and in the conclusions that he has reached. The present situation, as I understand it, is as follows, as shown by a comxiarison of the Pribilof and x^elagic catches: Tear. rribilof Islands. Total pelagio catch. 21,234 12,071 7,500 7,500 51.055 (18.000 73,394 *80,000 Tot •IS, 305 273,049 * Estimated. 106 In 1889 the Pribilof catch was 102,617, which fell off to 21,234 in 1890, and this was all that the islands would yield of killable seals, leaving a deficit, as compared with the previous year, of 81,379 seals upon the islands. If this contrast in the number of seals that could be taken on the islands in 1889 and 1890 was due to the overkilling of males on the islands, and not to pelagic hunting, the falling off of numbers would have been indicated in each of the six years prior to 1889. No one has asserted such a fact, and we know that a male seal must be 6 years old before he is able to take up and maintain a harem on the rookeries. So that this sudden falling off between 1889 and 1890, if it was due to an excessive killing of males, must have occurred at least as early as 1882. This is not true, and no one pretends that it is. The killing of 51,655 seals that the pelagic hunters got, and at least three-fold that number, including those that were lost, must have reached 300,000 seals that were destroyed. Of this number, three- fourths were females, that are not killable seals on the islands, and are not counted in the Pribilof catch. The verification of this calculation is almost perfect in 1892, when the pelagic sealers took 73,000 seals, and in 1891 when they took 68,000. The close approximation of these figures shows that the loss of the seals on the islands was due to pelagic sealing, and not to the want of virility in the bulls on the breeding grounds, or to any other cause. That the process which has actually depleted the seal herd in four years to the extent of 569,065 (273,000 of which were females), is an evil that requires to be remedied, for the sake of the protection and preservation of seal life, no one can doubt, as it seems to me. This progressive depletion of this herd of seals can not fail to destroy them very soon, and, in the meantime, to deprive the United States of all possible advantage and compensation derived from its efforts to save the species. What the United States has done, or omitted to do, to deserve treatment at the hands of this Tribunal that wdl expose its lawful industries to ruin, its revenues to depletion, and its wards on the Pribilof Islands to the loss of their only valuable industry will be an inquiry that will seriously challenge the justice of such an award, in the estimate of the civilized world. The evil to be provided against by this Tribunal is, clearly, pelagic sealing with firearms. If there is, or has been, any detriment to the seal herd from the 107 treatment of the United States, on the islands, the facts on this subject were not unknown to Great Britian when the treaty was made and before ratifications were exchanged. This subject was not referred to in any of the correspondence between the Governments, and the treaty is silent as to this supposed mismanagement. Wdl the Tribunal, in such a case, make an objection to protecting and preserving the fur-seals on the water because Great Britain has not thought it proper or necessary to call the methods into question, or the United States into account, for its manner of dealing with that subject on land? True, if it can be shown that the depletion of the herd is due to that cause, and not to x>elagic hunting, that is a just and X>roper inquiry. If it is due to both causes, this Tribunal will deal with the pelagic evil, that is submitted to its consideration, and leave it to the nations concerned in the protection of seal life to deal with the evil on land. If the United States are not so wise in caring for the seals on land as the jtelagic hunters are in caring for them at sea, as seems to be asserted, they are quite as earnest in the wish to do so. They destroy no female seals; whde the pelagic hunter never spares one. They do not fire ux^on the breeding rookeries when the seals are massed, many of them asleep, with double-barrelled shotguns and buck-shot cartridges. They do uot kdl indiscriminately all seals that come in sight. The United States permit no female seals to be kUled; wMle 75 per centum of those killed' by the pelagic hunter are females heavy with young and almost helpless. In that condition, as well as in accordance with a law of their nature, whichis an importantfactin connection with their domesticity, thefemale frir-seal require a great deal of sleep. When asleep, they turn upon their backs, fold their flippers over their breasts, and curving their hind flippers upwards, they form of their bodies a sort of boat, the spinal column representing the keel. They can only breathe the upper air; they can not, like a fish, extract air from the water. While sleeping their noses are above the water. After inhaling the air the nostrils close firmly together, and the air, heated by their bodies, expands and buoys them up. They seldom breathe oftener than once in fifteen minutes, and, when diving, they need not return to the surface for air oftener than every thirty minutes. We know nothing of their habits at night while in the ocean. On laud they are so boisterous at night with their howlings that sleep would seem to be impossible, except 108 from sheer exhaustion. They have notakeen vision, and the suulight is painful to them,.so that they leave the land aud go to sea on days that are bright. This causes them to seek a summer home in a place where fogs and rains prevad. Tet they must have warmth. Nature has amply provided for this necessity by giving them a double coating of thick, strong hair, and of the thickest and finest fur that was ever bestowed upon any species of animals. It is as impervious to water as the down of an eider duck. The pups are born without this fur, and hence their aversion to swimming untd it has grown out; and this detains them on laud for four months, at least, during which period they can subsist only on the milk of the cow seals. While their vision is not keen, their auditory organs and sense of smell are exceedingly acute. They are attracted by sounds as few other animals are. In this faculty they make a close approach to the endowments of mankind. Sir John Thompson is amused at an account, read by Mr. Justice Harlan, of the seals being attracted in great numbers near to the shore at Hoy by the ringing of a church bell. In his incredulous sport over this incident Sir John forgot that it is the personal observation of Mr. Low, one of the greatest naturalists who ever lived, the friend and companion of Cuvier, and is more than confirmed by M. Peron, whom France has honored in the most conspicuous, way. • His abilities as a naturalist, acquainted intimately with seal life, are as far in advance of those of Prof. Elliott, from whom Lord Hannen quotes with much satisfaction, as Najioleon was in advance of the Sioux chieftain, Sitting Bull, as a military genius. I will x>resently quote something further about fur-seals from Mr. Peron. I know Mr. Elliott, whom the British Government has dubbed "professor." I have respect for his character and sprightliness. He is a X>ainter in water colors of no mean x>retensions, but his use of color does not stop with his canvas. It enters into all he says, and makesj him too vivid an enthusiast for a safe reliance on questions of measurements, statistics, and cold facts. Mr. Elliott was out on the Pribilof Islands on the 10th of July, 1890, taking field notes, which, to be of any value, shoidd be free from all romantic conjecture. The following is one of his highly colored extracts taken from his report of that day: In company with Mr. Goff and Dr. Lutz, I made my xdotting of the breeding seals'as they lay on the Reef and Garbotch to-day. Here at the very height of the breeding season, when the masses 109 were most compact and uniform in their distribution in 1862-'74,1 find the animals as they lay to-day, scattered over twice and thrice as much ground as a rule, as the same number would occupy in 1872—scattered because the virile bulls are so few in number and the service which they render so delayed or impotent. In other words the cows are restless; not being served when in heat, they seek other bulls by hauling out in green jagged points of massing (as is shown by the chart), up from their landing belts. This unnatural action of the cows, or rather unwonted movement, has caused the pups already to form small pods everywhere, even where the cows are most abundant, which shadows to me the truth of the fact that in five days or a week from date, the scattering completely of the rookery organization will be thoroughly done; it did not take place until the 20th-25th July, 1872. In 1872, these cows were promptly met with the service which they craved on the rookery ground. The scattering of these old bulls to-day over so large an area, is due to extreme feebleness and combined in many cases to a recollection of no distant day when they had previously hauled thus far out on this very ground surrounded by bareness, though all is vacant and semi grass grown under and around them now. The fur-seals, so well provided against cold, are yet so sensitive to its effects that they go south at the approach of winter and seek their food in the great river of warm waters that comes from the tropical coast of Asia and pours its flood across the Pacific Ocean. It bears enormous treasures of fish food, and swarms with schools of herring, salmon, and squid. The migratory fishes, that naturally feed against the current, pursue the track of this warm river in the ocean and ascend it. This leads them to the northern coast of the United States, and thence around the great curve which this river has formed on the coast, past British Columbia, to the south of the Alaskan peninsula. The fur-seals, finding warmth and food in this ocean current, enter it when they quit the breeding islands and Bering Sea, in November, and must stay in the broad expanse of warm waters, where it ceases to flow, during a considerable part of the winter. There they remain in search of the herring and other vast schools of migratory fishes that are surface swimmers and feeders, and they follow them on their way to the spawning grounds, as the seals return to their summer abode on the islands to the north of the Aleutian peninsula, where the Arctic current and the Asiatic river meet. Around the great curve I have mentioned, this ocean current sets in close to the shore, flowing southward, and its warm waters make the winter climate in those high latitudes and altitudes nearly as soft and genial as that of Ireland, and for the same reason. The seals are thus drawn into numerous large assemblages or schools near to the western 110 coast of North America, and are in easy reach of the "industry" of pelagic sealers. They must travel a great deal in the night time. In this they are guided and protected by their sense of hearing and smell, and, like the cat, they are provided with several rows of whiskers that are very sensitive and that admonish them of danger in places where they can not see their way. The gravid females must necessarily spend a large part of each day in seeking food, and do not travel so fast as the male seals. Their exertions are necessarily very taxing to their strength and require them to sleep frequently during the day. I have made this statement of facts and conclusions, as I draw them from the evidence, to support the further conclusion of fact, which, I think, is unavoidable, that the war upon the gravid female seals is like a war upon the women and children of a nation, which all, except I the most depraved of savage nations, abhor. True, these are beasts; I but they are harmless, docile, useful beasts, and very helpless, and I when they are denied any more protection by the supposed law of I nations against the mercenary ferocity of the pelagic sealer than is I given to tigers or serpents, while I am eurpowered to vote in this Tribunal, which is now their only protector, I must vote at least to disarm the pelagic sealer of his double-barreled shotgun, or else to confine his warfare to an area of waters and to a close season where • his powers of destruction will not exterminate the race. If I could find ho better reason for restraining the pelagic hunters from the use of double-barreled shotguns in their "sportsmanlike" : business of killing gravid females and nursing mother seals in order to earn $10 a piece from each x>elt, I would join my voice with that of every respectable legislature in the world in their careful and highly x>enal enactments for the prevention of cruelty to animals, and would at least put the female seals under the protection of xiroper reguhitious to be awarded by this Tribunal. On this point I will quote from The Naturalist's Library (p. 81), which thus describes the cruelties inflicted upon these valuable, docile, and harmless animals: Before proceeding to make the fewremarks which our limits allow on the valuable products derived from these animals, we would say a word or two upon their capture. They are exceedingly tenacious of life, and many cruelties have been perpetrated upon them, which most who have witnessed declare to be too horrible for description, and over which we willingly draw a ved. If life is to be sacrificed, there is a Ill right way of taking it as well as a wron g, and we insist that the former should be followed and the latter avoided. Before, however, entering upon this topic, we take leave to remark that it is impossible to investigate/as we have done, the natural history of these animals without discovering how much their capture has been made a matter of mere amusement and, as it is familiarly but emphatically called, of sport. We venture to denounce all such sports as both indefensible and wrong. Animals have been given to provide for the necessities and comforts of man, but not that he may gratify himself with their dying agonies; and he is wholly inexcusable if even here he breaks the golden rale of doing ashe would bedone by. Sporting with the feelings, and pains andlives of these creatures has a strong tendency to lead to cruelty and wickedness; and, therefore, this inherent tendency should be checked in the bud and invariably opposed. When we witness, says Peron, a thoughtless sailor hastening for his amusement, club in hand, into the midst of a great herd and surrounding himself with their dead bodies, we can not but sigh over this improvidence and cruelty which lays low so many peaceful, gentle, and unhappy beings. While I have the book in hand, to the docility of the seals, on pa; I will read other extracts in relation ;es 73 to 77: At a particular season of the year, every male, inflamed with Inst, and jealous almost at its shadow, lords it over his numerous harem with even more than eastern despotism, and thereby throws the whole community into a state of the highest excitement and agitation. During this period, which continues for months, many a jealous Bashaw, as these animals have not inaptly been designated, engages in fearful strife with a rival; the contest is often long and obstinate, as wellas most sanguinary and fatal. Nor does it end with these doughty champions. Other males soon imagine that their interests are involved, or their rights invaded, and the strife spreads from family to family, tall at length the whole community is involved in one general melee of passion and rage, of fierce cries and groans, of blood and death; and, after all, short is the triumph of the conqueror, and deep and poignant the chagrin and malice of the vanquished. Originally, and therefore we are disposed to hold that naturally, these amphibia, far from having a dread, have rather a reposing confidence in man. When a young one by an accident is separated from its parents and comes in contact with man, instead of shunning it courts its company. It will follow him, and if the finger be held out will suck it like many domestic animals. Through the kindness of Prof. Trail we can illustrate this trait in their mental constitution by an interesting incident of which he was a witness, and which, with several other anecdotes, we can, through his polite attention, record in his own words: "A little islet in Orkney, caUed the Holm of Papa Westray, had long been a favorite haunt of numerous seals, which had become more than usually tame from the care of the proprietor of the adjoining island to prevent their being molested. On visiting that gentleman in 1833 I found the seals exhibited their wonted confidence in those who approached their protected haunt. Several of them swam along the shore as a party of six or eight persons walked along the beach, and did not in general keep farther from us than 30 or 40 yards. When we turned so did they, and when we reentered our boat they followed it in the narrow channel that divides Holm from the island of Papa. Seals are said to relish music, and a seal hunter once informed 112 me that the sound of a flute will allure them to a boat; but in the above instance it was merely the consequence of no gun being ever lifted against them in that islet which has won their confidence in man." Nor is this characteristic less strikingly exernx>lified "by an observation made by Mr. Dunbar, the present incumbent of the parish of Applegarth, during his residence at a former period in one of the Hebrides. In a letter to Mr. Lizars, which appeared, in the last volume of the Naturalists' Library, we find 'the following statement: "While my pupils and I were bathing, which we often did, in the bosom of a beautiful bay in the island named, from the circumstance of its being a favorite haunt of the animal, Seal Bay, numbers of these creatures invariably made their appearance, especially if the weather was calm and sunny and the sea smooth, crowding around us at the distance of a few yards, and looking as if they had some kind of notion that we were of the same genus with themselves. The gambols in the water of my playful companions and their noise and merriment seemed, to our imagination, to excite them and to make them course round us with greater rapidity and animation. At the same time the slightest attempt on our part to act on the offensive, by throwing at them a stone or shell, was the signal for their instantaneous disappearance, each as it vanished leaving the surface of the water beautifully figured with a wavy succession of concentric circles." In the previous paragraph allusion is casually made to the notion that these animals are not indifferent to the charms of music, whilst we believe it may be safely affirmed that this assertion is more frequently made than credited. The statement, however, appears to be perfectly correct; and the following quotations, the former from the celebrated Orkney naturlist, Law, and the latter from Mr. Dunbar just quoted,' are sufficient to banish all skepticism on the point. "If people are passing in boats the seals often come close up to them and stare at them, following for a long time together; if people are speaking loud .they seem to wonder what may be the matter. The church of Hoy is situated near a smaU sandy bay much frequented by these creatures, and I observed when the bell rang for divine service all the seals within hearing swam directly for shore, and kept looking about them, as if surprised rather than frightened, aud in this manner continued to wonder as long as the bell rang." And again Mr. Lizars's correspondent: "The fondness of these animals for musical sounds is a curious peculiarity in their nature, and has been to me often a subject of interest and amusement. During a residence of some years in one of the Hebrides I had many opportunities of witnessing this peculiarity, and in fact could call forth its manifestation at pleasure. In walking along the shore in the calm of a summer afternoon a few notes of my flute would bring half a score of them within 30 or 40 yards of me; and there they would swim about, with their heads above water, like so many black dogs, evidently delighted with the sounds. For half an hour, or, indeed, for any length of time I chose, I could fix them on the spot; and when I moved along the water edge they would follow me with eagerness, like the dolphins who, it is said, attended Arion, as if anxious to prolong the enjoyment. I have frequently witnessed the same effect when out on a boat excursion. The souud of a flute or of a common fife blown by one of the boatmen was no sooner heard than half a dozen would start up within a few yards, wheeling round us as long as the music played, and disappearing one after another when it ceased." 113 Again I read from the same volume to prove what I have said about the sense of hearing, touch, and smell that seals possess (pages 65 and 66): The truth is, the eye of the Amphibia is a perfect study and would well repay a lengthened description. It is very large and quite spherical ; sclerotic or outer membrane is very peculiar, inasmuch as it has a soft and thin zone around its middle, thickly covered with muscles, whilst both before and behind it is thick and almost cartilaginous. The precise use of this structure has not yet been discovered, though Blumenbach has thrown out the idea that it may enable the seal to see both in air and water. Rosenthal so far confirms this opinion by having observed that the mechanism is peculiar to those animals which live in a dense medium, such as water; that the remarkable thickness of the coat is found in those animals in which the orbit is not wholly osseous, and that some fishes have the sclerotic nearly cartilaginous. With regard to the ear, it ought not to be forgotten that fishes, with no external ear or aperture, have in their native element an acuteness of hearing which, according to some respectable authorities, far exceeds our own, and Rosenthal states that the auditory nerve of the seal is very large. Respecting the sense of touch, we shall here quote M. F. Ouvier, who well remarks : "The whiskers are very sensible portions of the sense of touch. Those hairs placed on each side of the mouth and at the corner of the eye communicate with nerves which are remarkable for their size, and to which, as I have often convinced myself, the slightest impression communicates an immediate sensation." So it is, we believe, with the other senses, which we consider wonderfully adapted to both elements. Thus Bnffon remarks of the monk seal on laud • " It has a very acute hearing, since even at a distance it never failed to obey or respond to its master's voice;" and thus Capt. Scoresby: "Seals appear to hear well under the water. Music or particularly a person whistling draws them to the surface and induces them to stretch out their necks to the utmost extent, so as to prove a snare by bringing them within the reach of the shooter;" and Weddell: "Their sense of hearing is acute, and also their souse of smell." It is on account of this last sense that ihe Greenlanders always endeavor to •approach them against the wind. And were we to judge of their taste by the keenness with which they relish their food—few animals possess it in equal perfection. The greatest gourmand's teeth do not water at the anticipation of the richest feast as do theirs in expectancy of their common food. "A copious saliva," saysM. F. Cuvier, "fills and flows from their month during deglutition, and not less so the moment the seal perceives its prey." As to their breathing the following is stated: Having thus noticed that the external structure of these Amphibia is admirably adapted for their watery element, and yet made wonderfully conformable to their requirements on land, we proceed to remark that their vital functions also are strikingly fitted for their peculiar exigencies. Their respiration, as might readily be inferred, differs considerably from what is observed in most other animals. Even the air passages undergo a change which ought not to be overlooked. We refer particularly to the nostrils, whose state, unlike that of other quad- 11495 m 8 I will read from pages 56, 57, and 58, where 114 rupeds, is that of being habitually closed, instead of being uniformly open. This was first noticed, we believe, in a walrus domesticated in England, of which, as wfll appear in our account of that animal, it was said: "It can open and shut its nostrils at pleasure." The Count Buffon again pointed out the peculiarity in a tame seal which he examined: "In the intervals of breathing, the nostrils were accurately closed, and, on the act of inspiration being completed, they were shut as before." M. F. Cuvier, at a later period, made a similar observation, so that we apprehend we may safely affirm that this peculiarity exists in the air passages as their ordinary condition. This state of parts of course supplies ready means of judging of the frequency of respiration, and here, too, there appears to be a marked difference, even on land, from what obtains among other animals. Thus Buffon, in the instance already'alluded to, remarks: " The period between its several inspirations was very long; the creature opened its nostrils to make a strong expiration, which was immediately followed by an inspiration, after which it closed them, often allowing them minutes to intervene without taking another breath." In connection with this peculiarity, M. F. Cuvier makes an additional and important remark: " Notwithstanding the slow and irregular breathing of these animals, the regular sui>ply of air to the lungs is in no degree diminished, if we may judge from the very free motion of the ribs, and the great quantity of air expelled at each- expiration. In truth, the quantity of air taken in makes up for the small number of the respirations; for few of the Mammalia have appeared to me to have so high a natural temperature as the seals. But, however great the peculiarity as exhibited on land may be, it is trifling when compared to its singularity in water, where it is not uncommon for these animals to remain for a quarter of an hour at a time under the surface (the usual period even for whales); and we are not prepared to state what the extreme limit may be. Thus, Orantz states that when harpooned they must come up in about a quarter of an hour to take breath; and Mr. Edmonston informs us that he. once saw one of the bearded seals entangled in a net, which struggled with amazing force for more than twenty-five minutes without once inspiring, and yet was brought to the surface alive. An observation of M. F. Cuvier is still more remarkable. He states, concerning those which were preserved in the menagerie at Paris, that he has seen them while asleep keep their heads under water consecutively and consequently without breathing for an hour at a time. This is an extraordinary phenomenon, even allowing that the animal was in that somewhat lethargic condition to which we shall ere long allude. As to their destruction, by unrestricted hunting, the following pages may be referred to: pp. 93, 95, 96, and 97, where it is said: The time was when cargoes of those skins yielded $5 or $6 apiece in China, and the present price in the English market averages from 30 to 50 shillings per skin. The number of skins brought off from Georgia can not be estimated at fewer than 1,200,000; the Island of Desolation has been equaUy productive, and in addition to the vast sums of money which these creatures have yielded it is calculated that several thousand tons of shipping have annually been employed in the traffic. * * * These valuable creatures have often been found frequenting some sterile islands in innumerable multitudes. By way of illustration, we shall refer only to the fur-seal, as occurring in South Shetland. On this barren spot their numbers were such that it has been 115 estimated that it could have continued permanently to furnish a return of 100,000 furs a year; which, to say nothing of the public benefit, would have yielded annually from this spot alone a very handsome sum to the adventurers. But what do these men do? In two short years, 1821- '22, so great is the rash that they destroy 320,000. They killed all and spared none. The moment an animal landed, though big with young, it was destroyed. Those on shore were likewise immediately despatched, though the cubs were but a day old. -These of course all died, their number, at the lowest calculation, exceeding 100,000. No wonder, then, that at the end of the second year, the animals in this locality were nearly extinct. So it is, we add, in other localities, and so with other seals; so with the oU seals, and so with the whale itself, every addition only making bad worse. And all this might easily be prevented by a little less barbarous and revolting cruelty, and a little more enlightened selfishness. Fishermen are by law restrained as to the size of the meshes of their nets in taking many of our more valuable fish; and in the Island of Lobos, in the River Plata, where, as we have seen, there are quantities of seals, their extermination is prevented by the governor of Montevideo, who farms out the trade under the restriction .that the hunters shall not take them but at stated periods, ages, etc. * * * With regard to the seal fishery of the south the English and Americans have exclusively divided it between them, and with very great profits. It has lately been stated that they together employ not fewer than sixty vessels in the trade of from 250 to 300 tons burden. These vessels are strongly built and have each six boats, like those of the whalers, together with a small vessel of 40 tons which is put in requisition when they reach the scene of their operations. The crew consists of about twenty-four hands; their objectfrequentlybeingtoselect a certain fixed locality from which they make their various battues. Thus it is very common for the ship to be moored in some secure bay and to be partially unrigged, whilst, at the same time, the furnaces, etc, required for making the oil are placed on shore. The little cutter is then rigged and manned with about half the crew, who sail about the neighboring islands, and send a few hands on shore when they see seals, or where they wish to watch for them. This vessel can hold about two hundred seals rudely cut up, which will yield about 100 barrels of oU. This is transported to the headquarters and melted. The campaign frequently lasts for three years, and in the midst of unheard of privations and dangers. Some of the crew are sometimes left on distant barren spots, and the others being driven off by storms, they are left to perish or drag out for years a most precarious and wretched existence. This evidence,.from the highest English and French authorities, was stated to the scientific world more than fifty years ago, as a plea for the preservation of these valuable and docile animals. If we calculate the values they would have added to commerce, had Great Britain and the United States then agreed, as they do now, to adopt regulations for their protection, we must reproach ourselves if this Tribunal is not now equal to this important duty and if the regulations we adopt are not effectual to stop this great wrong. 116 The following pages, 275, 276, and 277, contain a description of fur- seals in the Antarctic, taken from the writings of Capt. Weddell: Nothing regarding the fur seal is more astonishing than the disproportion in the size of the male and female. A large grown male, from the tip of the nose to the extremity of the tail, is 6 feet 9 inches, while the female is not more than 3£ feet. This class of the males, however, is not the most numerous, but being physically the most x>owerful they keep in their possession all the females to the exclusion of the younger branches; hence, at the time of parturition, the males attending the females may be computed as one to twenty, which shows this to be, perhaps, the most polygamous of large animals. They are in their nature completely gregarious; but they flock together and assemble ou the coast at different x>eriods and in distinct classes. The males of the largest size go on shore about the middle of November to wait the arrival of the females, who of necessity must soon follow for the purpose of bringing forth their young. These in the early part of December begin to land, and they are no sooner out of the water than they are taken possession of by the males, who have many serious battles with each other in procuring their respective seraglios and by a peculiar instinct they carefully x»rotect the females under their charge during the whole period of gestation. By the end of December all the female seals have accomplish the purpose oif their landing. The time of gestation may be considered nearly twelve months, and they seldom have more than one at a time, which they suckle and rear ax>parently with great affection. By the middle of February the young are able to take to the water, and after being taught to swim by the mother they abandon them on the shore, where they remain till their coats of fur and hair are comxfleted. During the latter end of February what are called the dog-seals go on shore; these are the young seals of the two preceding years, and such males as, from the want of age and sti ength, are not allowed to attend the pregnant females. These young seals come on, shore for the x>urx>ose of renewing their annual coats, which being done by the end of April they take the water, and scarcely any are seen on shore again till the end of June, when some young males come up and go off alternately. They continue to do this for six or seven weeks, and the shores are then again abandoned till the end of August, when a herd of sniad young seals of both sexes come on shore for about five or six weeks, and then retire to the water. The large male seals take up their x>laces on shore, as has been before described, which completes the intercourse all classes have with the shore during the whole year. The young are at first black; in a few weeks they become gray, and soon after obtain their coat of hair and fur. When these South Shetland seals were first visited they had no apx>reh'ension of danger from meeting men; in fact, they would lie still while their neighbors were killed and skinned; but latterly they had' acquired habits for counteracting danger by placing themselves on rocks, from which they could in a moment precipitate themselves into the water. The agility of this creature is almost greater than, from its appearance, an observer would anticipate. I have seen them, indeed, often escax>e from men running fast in pursuit to kill them. These statements, collated in volume 12 of the Naturalist's Library, which Lord Hannen tells us is a standard work, were written about 1820 to 1830, and some of them earlier, by the most scientific natural- 117 ists who gathered the facts from personal observations. They relate to the same race of fur-seals at the antipodes that we are inquiring about iu this case. These able scientists enter minutely into all the characteristics of the fur-seals and other carnivorous amphibia and give exact descriptions of their actual and comparative anatomy. Their accounts furnish accurate data, in strong contrast with the guessing and conjectures of the tyros, many of them without previous experience, who were sent out to make a brief and necessarily superficial study of the Pribilof herd, chiefly with a view to bolster up special theories that are made the bases of the contentions that the Tribunal is now examining. Although these books were written more than a half century ago, they are as accurate as a photograph as to the physical characteristics and the habits of the fur-seals of the North Pacific, and show that they are exactly now what the same species was one hundred years ago in the South Pacific Ocean. I rely upon these exact and scientific statements of these learned and trained naturalists to clear up the doubts aud reconcile or remove the conflicting conjectures of the numerous witnesses in this case who disagree chiefly because they are not well informed as to the subject. In the matter of the virility of the harem masters, the alleged barrenness of cows killed in July, August, aud September, and the possible diseases that may have swept off large numbers of pups on the island, opinions are advanced with bold freedom by men whose opinions are not entitled to any weight whatever. I do not remember that any one of the many statements of the hundreds of witnesses who speak so confidently on these subjects is basedeither upon actual skill or actual examination, by dissection or in any practical way, of the characteristics of fur-seals. All the evidence shows that the breeding cows are fertilized within a few days—about ten days—after parturition, and that until that is accomplished the harem masters control their movements with the most jealous care, and none of them are permitted to go into the sea until they are impregnated. They then set out to get food to nourish the pups they have borne, carrying in their bodies the living germ of the next creation. In these early days the fact of fertilization is not discernible even on close examination to the unskilled eye; yet such examinations were not made, and these seal-hunters and so-called professors unhesitatingly testify that a cow seal, having milk in her breasts, is barren because there were no external signs that she was gravid with young. 118 And so it is in respect of the virility of the bulls, a fact that would probably defy the most exact scientific examination to prove, is stated with sublime confidence by Prof. Elliott and other like guessers. He finds the bulls at peace on the rookeries, and though they are not irritated by being crowded together as formerly, he concludes that because they have their domestic enjoyments without the necessity of jealous warfare that they have lost their virility. Among all polygamous animals endowed with fighting capacity nature provides for destroying the excess of males by the wars they wage upon each other. Breeders of animals reach this result without the necessity of permitting them to fight and kill each other. It requires very simple reasoning to reach the conclusion that, if this waste of physical energy is saved to breeding males by their separation from each other and the suppression of their warfare, that it will supply the virility to meet a greater demand upon their powers of procreation. No dissections seem to have been made of dead pups found on the islands on one occasion to ascertain whether they had died of starvation or of disease, or were swept off by tempests and drowned and were thrown upon the coasts in " winrows" by the waves of the sea. Tet each witness gives his opinion as to what killed the pups with as much confidence as if he really knew what he was talking about. The effort to account for the disparity of-81,000 killable seals on the islands between 1889 and 1890 by any of these mere conjectures is founded upon this sort of testimony and can not break the force of the fact that in 1890 the pelagic hunters got 51,655 seals, while on the islands, where 102,617 killable seals were taken in 1889, only 21,238 could be found the next season " by scraping the rookeries," as Lord Hannen observed. The crucial test of the necessity of forbidding pelagic sealing with firearms in parts of the ocean where seals abound is the fact that it results necessarily and without doubt in the killing of great numbers of female seals, because of their disposition to sleep when gravid. They are more easily approached than the males, and the result is the destruction of a much larger proportion of females than of males. The encouragement of this indiscriminate killing of females, or its toleration, will establish a practice that violates every idea of the protection and preservation of the species. It legitimates a war upon the race that can not be restrained. If we first deny to this race of valuable and docile animals (that have 119 less dread of the presence of man, whether on land or sea, than any other animal that is classed as a wild animal) all the protection that the law gives to animals that are domesticated, and for no other end than to protect the merely technical, cruel, and unrelenting claim of rights by its worst enemy, the pelagic sealer, we should never take to ourselves the credit of protecting and preserving them. When we arm those enemies with double-barreled shotguns, with cylinder cartridges charged with buckshot, and torn them in upon the herd to kill them indiscriminately after they have congregated in great numbers and are making their way to their only place of resort for the purposes of procreation, we, their only protectors, become their destroyers. This is not a hypothectical case or an exaggerated statement, but is the simple and undeniable truth. This Tribunal, by such a decree, will deny to the fur-seal species, all over the world, that protection which themunicipal law has always freely, and even eagerly extended to allharmless, docile, and useful animals that are valuable to man for food and raiment. We will put npon them the ban of outlawry only because they must go into the sea for food, and beoausethey do not need to be converted from their natural condition or disposition by the discipline or the temptations of the skill of man that must be used in taming savage beasts. Nature having dispensed with all necessity for such inducements and manipulations to overcome any aversion of the fur-seals to the dominion of man, and having delivered them into his hands as a free gift, to be used at his pleasure and to meet a want that no other animal can supply, the law steps in and declares that because nature has done this, and has so placed it out of man's power to make the seals any more docile and tame by inducements and manipulations than they are by nature, the fur-seals can never, as a class, become domestic or domesticated animals, and can receive no legal protection in the sea. They are forever excluded on such grounds from the legal possibility of domestication, and are handed over to the most formidable enemy that ever hunted any animal, tame or wild, doomed to inevitable destruction. I dissent from such opinion as being contrary to the laws of God and the often-expressed legislative intentions of man; but I yield to it as the sincere judgment of this Tribunal, and refer to it to show how much greater is the necessity now resting upon this Tribunal in the amplitude of its powers supplied to them, for this occasion and forthatpurpose, to afford substantial protection for the preservation of the species. I will explain 120 my meaning when I say that the outlawry of the fur-seal species is contrary to the laws of God. Hundreds or thousands of years ago these animals and the Aleuts were brought in contact by the directing hand of Providence along the shores and on the islands of Bering Sea. No tree, no fruit, or grain, or grass, or cattle were there to support human life; but men were there, who subsisted on these fur-seals and were clothed in their skins. This was nearly the only food and raiment they could obtain in a climate as inhospitable and in a country as rugged and dreary as any on the habitable globe. Only one hundred and fifty years ago, a powerful nation, Russia, came with her great ships and armaments and took the country and the people and the seal herds, by right of discovery, and supported its right by the title known to the law of nations as title by discovery—a most tyrannical and fraudulent maxim of international law which the civilized world has now practically abandoned. If this had never been done, the Aleuts would now be the owners and rulers of that country; and the question we are now discussing would be whether, under international law as it is now, the food and raiment—the only valuable resource of these poor and helpless people—could be taken by any great power and the people left to perish. In that case the consensus of the civilized powers would be that those animals should be considered the property of the Aleuts, the owners of the breeding islands, and when they left the coasts with the intention to return and visited the ocean for food, that they should at least be attended with the protection that is given by the law of all civdized nations to domesticated animals. This is the law of God, who first gave these animals to those northern tribes and made them the staff of life to them by reason of their docd- ity, the regularity of their coming into the service of those people, and their complete submission to that service. That law is not changed because the United States, a powerful and wealthy nation, has assumed to make provision for these people while lifting them into a higher civilization and finds in the fur-seals the revenue that is needed for these purposes. For more than one hundred years Great Britain and her subjects have known the fact that Russia and the United States have made these fur-seals the basis of a valuable industry; a means of providing for the Aleuts; an instrumentality of government; and almost the only source of revenue that country possessed. It was not until 1876 that any pelagic sealer entered Bering Sea, and that was a United States vessel that was captured and confiscated by that Government. 121 The seal hunters had depopulated the Antarctic Ocean of fur-seals, and had made many successful raids on the islands and coasts of Japan. Their poaching grounds had been exhausted and the hope of great profits drew them to Bering Sea. They found governmental resistance in Japan, Russia, and the United States, but they found in Canada a Government that would give countenance to their raids, and despite the best efforts of the United States and Great Britain, and of their ordinances closing Bering Sea to them, they now swarm upon the known route of the migration of the seals, which they follow with immense fleets. It was this sudden and dangerous movement that caused these nations to agree that this Tribunal should settle the questions that stood in the way of concurrent action between these Governments; and should then determine regulations for the proper protection and preservation of the fur-seals in the water, and not regulations to be provided for the protection of the pelagic hunters, who are the only human destroyers of the fur-seals that can not be otherwise completely restrained. If we will take a correct view of the number and the power of these destroyers we shall see in the dangerous aggregation of those enemies a demand that we can not reasonably resist for preventing them from destroying the fur-seals placed under our protection by this treaty. In view of the very heavy forces that are and have been marshaUed for this ruinous purpose, and that are really invited to increase their n umbers and strength by the regulations offered for our adoption: on behalf of Great Britain, we shall find a just and sufficient reason for firm action, withont being left to conjecture upon a meager statement of facts, and abundant statements of loose, ignorant, muddy, conflicting, and partial opinions as to how much wanton and needless injury has already been done to seal life, and in what months of the year it has been done. In 1892, the sealing fleet in the North Pacific Ocean numbered 122 vessels, 69 of which were under the British flag, and 53 under the flag of the United States. No other nations were participating in the hunt. Allowing to each vessel 8 sealing boats, though none had less than 5, and many of them had 15, there were 976 boats. There could not have . been less than 1,000 boats. Giving to each boat a hunter and oarsman, there were 2,000 men employed in hunting. They also had the ship and its crew as a base for supply of ammunition and provisions, and to give assistance in skinning the seals after hoisting them into the ship, 122 and in disposing of the carcasses and salting and stowing the pelts. These crews, allowing 10 men and officers to each vessel, though the numbers were much greater, numbered 1,220; in all, 3,220 men. I place this estimate below that of both Governments because I believe that is a full allowance of the men needed, and this business requires no great investment of capital to make it profitable. Each hunter has a rifle, and a double-barreled shotgun, and takes 100 rounds of ammunition on each excursion from the ship, which he usually expends in a day's work. The guns are breech-loading, rapid- firing weapons, and havevfixed ammunition, made waterproof; and are fired by the impact of the hammer upon an explosive that is fixed in the base of each cartridge. The powder and the explosive for igniting it are charged into a copper cup or cylinder that forms the base of the cartridge, and the lead is imbedded in the cylinder, in front of the powder. A slight flange around the exterior of this cylinder at its base prevents its escape from the gun in firing, and when it is emptied a very simple contrivance removes the shell from the breach of the gun. Fifteen buckshot, each a deadly missUe, is usually the charge of lead Xilaced in each cylinder cartridge, and if a hunter fires 100 shots in a day, he discharges 1,500 of these missiles at, or into, the seals. In 10 days of good sealing in the North Pacific out of 60, the single hunter would fire 15,000 deadly shots at close range; and in 15 days out of 90, in the Bering Sea, he would fire 22,500 deadly missiles at or into the seals, even under the more apparently forbearing and humane scheme Of regulations offered by Sir John Thompson. But under the British scheme his opportunities would be much greater. In a sealing campaign of two months in the North Pacific and three months in Bering Sea—continuous months—the single hunter, during twenty-five days of good sealing out of one hundred and fifty-three days (Sundays included), would fire at and into the seals 37,500 deadly cartridges. One hunter with that opportunity, if he was moderately skilled in shooting seals, would destroy 2,000 or more seals in 153 days of hunting. It is idle to suppose that out of 153 days of hunting he would not find 25 days of good sealing, in which he would fire 100 shots each day. The average for the entire period would be 24 shots each day for each hunter. Now multiply these figures by the number of hunters in the entire fleet of 122 vessels—967, and in the 25 days of good sealing weather out of the 153 days spent in the North Pacific and Bering 123 Sea, they would fire at and into the seals 3,550,824 cartridges, each loaded with 15 buckshot, all deadly missiles, and numbering 53,262,360. Now, let us suppose that three-fourths of these shots faded to hit the seals and that only half of the number that hit them either killed the seals or wounded them mortally, and we expose this herd of seals to an annual loss of 443,853 seals at the very lowest possible estimate and upon a basis of facts that no one can safely dispute. This shows that not mi ire i ha n one seal is taken 'out of every five seals shot. This seal herd in its present depleted condition can not continue to exist if half that number of seals is taken from it in each of the years from 1894 to the end of the century. And if the percentage of female seals killed is equal to two-thirds or even half the whole number, the speed and certainty that must attend the destruction of the herd will be very greatly increased under the plan of Sir Johu Thompson. If we expect that a less number of vessels will hereafter assemble for seal hunting than came in 1892, on what ground can we safely base such a conjecture? The skins of seals are worth $10 apiece; they were worth that much in 1821, and if the average catch of each vessel is only 250 for five months, or 50 seals a month, it is a very large earning, and it leaves half the year for other voyages. If the attack ou the seals is permitted when they are herded together in Bering Sea in one vast body, or when traveling in large parties up the Pacific coast, the limiting of the hunting season to a brief period will only increase the activity of the pelagic sealers, and as much killing will be done with 200 vessels iu one month as would be done with 100 in two months, if the open season was two mouths instead of 'one. We could no more safely assume that the sealing fleet in 1894 or 1895 will not exceed the number assembled in 1892 than we could have assumed in 1876 that pelagic hunting would be limited to a single vessel and could not possibly reach the number of 122 vessels by the year 1892. The experience of the last seventeen years on this subject is not to be disregarded. It is a living lesson of truth that the legerdemain of minor and astute calculations can not conceal under a cloud of doubt. The fact remains that in the year 1892, 122 vessels assembled in the North Pacific and took 73,394 skins of dead animals, killing or fatally wounding at least twice that number—146,788—in all, 220,182 seals, of which two thirds were females, numbering 146,794. There can be but little doubt, ou all the evidence, that the number 124 of female seals killed and wounded was more than double the number of skins that were taken. There is also as little doubt that two-thirds of the females killed or fatally wounded were gravid, and on their way to the islands to be delivered of their young; and each seal in that condition was then the repository of two lives that were thus destroyed; the unborn pups being 99,862. This number, adding the number taken^ 73,394 And the nnraber killed and wounded, but not taken 220,182 And the unborn pups of the 146,794 females killed or fatally wounded 99,862 Givesa total of 393,438 How can it be said that, on the evidence in this case, this is not a true and safe estimate of the result of the work of destruction wrought by 122 sealing vessels in 1892, in the North Pacific while they were limited to those waters by the modus vivendi of 1891? Reduce this estimate if you will by one-half and make it only 196,714 seals of all conditions and sexes that are killed, and the number destroyed is nearly twice as great as the number of seals that were killed and recovered in 1892. Until these facts are changed or ' expunged from the record, I can find no occasion for examining in this opinion the minor details that relate to other seasons. These facts, if they are to be repeated indefinitely, destroy all hope of preserving these seals. ■The year 1892 with its actual experiences stands nearest to 1893, and is the safest, as it is the most complete, guide to the truth of the situation. I therefore take that year, with its ascertained facts and results, as the chief basis of my objections to the schemes of regulations proposed by Great Britain and departed from and modified, but scarcely improved, by the plan of Sir John Thompson. That Sir John has found it necessary to depart from the British proposals is a grave concession, especially in the point so earnestly contested by Great Britain, that this Tribunal has no jurisdiction outside of Behring Sea. He proposes a zone of absolute prohibition of pelagic sealing of 10 miles around the Aleutian Islands. In considering regulations as they may be shaped and modified by other considerations than the method that wdl best protect and preserve the particular class of fur-seals placed under the protection of this Tribunal by the treaty (if we are to take such liberties with our powers), the Tribunal must, in justice, examine into the rights of the pelagic sealers of the United States, in the Pacific Ocean and in Ber- 125 ing Sea, as they will be when the statutes of the United States shall permit them to enter with the Canadians and also with the people of other nations into that harvest field, and to have equal rights in the spoils that we are asked to place within their reach. Although we have not yet considered the British case on its merits, which covers only the claim of right to unlimited and uncontrolled pelagic sealing, and have only considered the objections to the case of the United States that are stated in the British counter case, I must assume that the citizens and subjects of the respective Governments everywhere on the' high seas are to have equal rights and privdeges. If it is the right and privilege of the pelagic sealers of Canada to waylay the seals in May and June at Unimak Pass or any other pass, and in July, August, and September to waylay them in Bering Sea near the passes or near the breeding islands, the same right must be accorded to the citizens of the United States who for personal gain choose thus to violate the declared public policy of their Government. If it must be that this Tribunal will inflict upon the United States the double indignity of having her wise aud honorable policy of preserving the fur-seal species disregarded by her own people, under the suggestions of the award, and of requiring the concurrent action of Great Britain in the principles, if not in all the details of laws and of administration, in guarding the jnxq^osed 30-mile zone against intrusion by citizens of the United States, we should at least be careful to protect the United States against a definition of the rights and powers of pelagic sealers that is so radical as to break down the admitted rights and princix>les of self-defense. The same necessity does not exist for guarding Great Britain with protective regulations, because no pelagic hunting is done within thousands of mdes of any place where she has any sealing industry, and the interest of the pelagic hunters is in accordance with her present policy of giving them free rein in the destruction of fur-seals if they can make any money by the operation, as her policy is now disclosed in the regulations she has submitted. As to citizens of the United States who would be thus encouraged by such an award policy to raid upon the industries aud revenues of their Government during five months of the year and to defy its public policy, it may turn out that the United States will abandon them to their own devices for protection while they are engaged in this selfish, cruel, and unpatriotic work. 126 And here comes to view the most dangerous and difficult task and the most irritating that the two Governments will have to x»erform in regulating as between these pelagic sealers their rights while they are pursuing and capturing fur-seals with double-barreled shotguns. The pelts are worth $ 10 each, a much larger sum than is the average yield of the richest gold mine per diem to the gold hunters; and we know how impossible it is to restrain by law the violence that has attended their struggles for "diggings," where none of them own the sod or any privilege in it except to discover new leads and to dig for gold. On the high seas 30 miles or more from any land there are no courts and can not be any efficient police by either or both nations. Conceding to them the best intentions and the most honorable zeal in protecting the rights of all concerned, they wiU fail to prevent those j>ersonal conflicts between the ravenous pelagic sealers around the 30-mile zone, especially, which in the end will embrod the two countries. The United States, as I have observed, may not choose to take up, as an international question, the quarrels of her citizens with Canadian subjects while they are both engaged in doing a great national wrong to that Government; but they will be, naturally, very chary of the dealings of Great Britain with such controversies. There wiU be no international court for the hearing of such controversies between private persons engaged in sealing in boats and canoes on the high seas, and they will xxrobably be settled by the vis major. The fact that both parties will be heavily armed for assault upon the seals will make such collisions very dangerous, and their occurrence almost certain. A United States sealer finds a school, or party of seals and goes to the leeward to get in gunshot of them; and a party of Canadians desiring to kill them, approaches the seals from the windward and shoots one with a rifle before the other hunter can get in range with his shotgun. A quarrel ensues and results in bloodshed. By a fiction of law, they are each upon the territory of their respective countries, and the settlement of that case, without the intervention of the Governments, would tax the wisdom equal to that of Solomon. If one sealer in his boat shoots at a seal that another is approaching from the other side, and wounds or kills the hunter, what is to be done in that case? That conflict will result from such occasions is almost certain, and how it can be settled is most uncertain. Illustrations are feeble to portray the difficulties and conjectures are far short of the reality as to the conflicts that must occur in the wUd hunt for seals that the British regulations invite. 127 Sir John Thompson spoke of the generosity of the British Government in treating with the United States for the preservation of the fur-seals. There was as much generosity on one side as on the other, and none on either. It was a business matter relating to material interests and, I may well assert, of equal importance to both high contracting powers, which took its origin iu what Sir John has aptly termed the "bursting in" of the Canadians into Bering Sea in 1886. It was a sudden "bursting in," aud had the appearance of a violent and defiant experiment—a raid. Canada and the United States since 1818 have had many severe contentions over the fisheries of the northeastern coast, in which arrests of ships and of persons have led to very earnest discussion. The United States, claiming certain treaty rights there, have not burst into any of the waters that Canada has claimed as her fishing preserve, although her people have beeu treated there with severe inhospitality. That Government has preferred to prevent collision and strife by restraining her people from bursting into places where they bebeved that their rights entitled them to go. It was an easy matter for Canada to have propounded its claim of rights to the United States, and to have had them decided upon without permitting her citizens to go into Bering Sea with their vessels and hunters armed with double-barreled shot guns and hunt seals up to the 3-mile limit, which she now admits should be 10 mUes as to such hunting. It was quite as easy for Canada to restrain her citizens from bursting into Bering Sea as it was to' enact her system of very stringent laws to protect her preserve of hair seals 1,000 mdes from Canada, in the open ocean off the coast of Greenland. If Canada had passed any reasonable laws for protecting these interests of the United States, even during negotiations, a serious disturbance of neighborly feeling could have been avoided, and fearful havoc in the seal herds passing her coasts would have been prevented. The enactment of such a law would have enabled the United States to have controlled her own people as to hunting seals in the North Pacific without incurring the reproach from them of denying to them the privileges that Canadian subjects enjoyed on the high seas, and of allowing them to reap all the profits of the massacre of the fur-seals. The policy of Canada has made it impossible for Congress to restrain the people of the United States from participating in this reckless destruction, and from this defiance of her public policy and laws. Yet, in the presence of this obvious legislative impossibility, it seems equally 128 impossible to answer the thrust that is always made at the United States in argument, in censure of her conduct, that Congress has not enacted laws to prevent citizens of the United States from pelagic hunting in the North Pacific Ocean. The fact which no one seems to deny, that citizens of the United States took shelter under the British flag and Canadian registry to evade the laws of the United States excluding them from sealing in Bering Sea, seems to have been forgotten. That fact alone shows how impotent would have been the laws of the United States to protect and preserve the fur-seals against the dej»re- dations of its own people while sealing under the shelter of the British flag. Canada controls the registry, licensing, and clearance of sealing vessels in her sea-ports, as is shown by her statutes relating to the hair-seal fisheries. A simple regulation would have saved the fur-seals from this exterminating raid that the evidence in this case has disclosed. But CanadiaU subjects seem to have a double allegiance and a twofold protection under their colonial system. The Canadian government can xierinit them, without control, to burst into Bering Sea and prevent the seals from reaching the islands of the United States, and when such raids are followed by arrests they can claim the imperial power of Great Britain to xirotect them. Whatever censure, therefore, may be visited upon the United States for her dealings with her own people, it must be admitted that the difficulties of the situation have been caused by the policy that her neighbor has seen proper to pursue. If such censures had been just they would have been made by Great Britain when negotiations in respect to this treaty were pending. That Government did not venture to allude to the subject. It seems to have been held back as a make weight for the argument and considerations of this case. When the United States shaU have an opportunity to consider that question in her future discussions of such matters, should that be unhappily necessary, her vindication will be found to be complete. Mr. Bayard, who first pointed out the rights of the United States, which included, in substance, the five points we have just been discussing, and which were advanced subsequently with great earnestness by Mr. Blaine, proposed to leave those matters out of consideration, and to proceed at once to establish the regulation nf pelagic hunting by designating an area within which a close season should be enforced. And afterwards, when arrests were made of the Canadian vessels that were killing seals in Bering Sea, Mr. Bayard ordered their release. This 129 was done, not because Mr. Bayard had receded from the attitude he held, as was contended by the British counsel in oral argument, but for the reason that a negotiation was pending for the settlement of all the controversy, and he did not think that it would promote good will between the nations to push the claims of the United States by the exercise of force while it was negotiating with Great Britain about the validity of those claims. After such example of considerate action on the part of the United States, it is not doing justice to either party to claim that the other was treating with it in a spirit of generosity or of forbearance. Does anyone doubt that the United States acted, in all this controversy, upon a firm belief in the justice of its claims in every particular ? If those claims were just, or made in that firm belief, it was a matter of as much concern to Great Britain as it was to the United States, both in the view of justice and as to the preservation of the peace, that they should be fairly considered and settled. Great Britain has never, until the scheme of her regulations were presented to this Tribunal, asserted that the United States had not a special and peculiar interest in the fur-seals frequenting Bering Sea. In the diplomatic correspondence that Government conceded such a peculiar interest in the United States, but has at last got its consent to dwarf the concession to an area that would conform only to the interests of the Canadian sealers. It was these men who compelled Great Britain to interpose for their protection, and when that Government found that their practices were destroying a great and valuable element of commerce, they demanded an investigation of the necessity for restraining pelagic hunting by a joint commission, and this is the initial point of this Arbitration. Having touched on the general questions or subjects now presented for our consideration, and leaving to Mr. Justice Harlan the task he has chosen of making a closer examination of the evidence bearing on these questions, I will take up the plans or schemes of regulations, so far laid before the Tribunal, and endeavor to state my understanding of what they are and what will be the results if any of them are adopted. The further remarks of Senator Morgan on this topic related to the comparative merits of the several schemes or projects of regulations presented to the Tribunal, and are not here given. 11495 m 9
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Original Format: University of British Columbia. Library. Rare Books and Special Collections. JX238 .F8 1895
Bering Sea controversy
Sealing
Fur seal arbitration. Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty between the United States of America and Great Britain, concluded at Washington February 29, 1892, for the determination of questions between the two governments concerning the jurisdictional rights of the United States in the waters of Bering Sea. Volume I
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