FOR THE PEOPLE FOR EDVCATION FOR SCIENCE LIBRARY OF THE AMERICAN MUSEUM OF NATURAL HISTORY KUR SEAL ARRITRATION. PROCEEDINGS Tribunal of Arbitration, CONVENED AT PARIS UNDER THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED AT WASHINGTON FEBRUARY 29, 1892, 5Q,q,1i5* I (o. I DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV- ERNMENTS CONCERNING THE JURISDICTIONAL RIGHTS OF THE UNITED STATES WATERS OF BERING SEA. volunie: I, WASHINGTON: GOVERNMENT TR-INTING OFa<'lCE. 1895. •^ TH tTT V -i— u^4 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, 1SD3. Iloiiornblo W. Q. Gkesham, kSecretanj of State, Was-hi)ir/{o»., D. G. Sir: As agent of the United States, appointed under the treaty of February 29, 1892, providing for the submission to arbitration of tlie questions whicli had arisen between the United States and Great Britain respecting the far seals of tlie 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 iu authentic form to support the claims put forward by the United States, aiul 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 (;ase of the United States, to embrace in that document a presentation of all the questions of law aiul of tact 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 res[)ecting the five points set forth in Article VI of the treaty and embracing the focts necessary to a determination of the regulations referred to in Article VII. The printed case of the United States, accompanied by the docu- ments, ofhcial correspontlence, and other evidence relied upon in sup- port thereof, was delivered to the agent of Great Britain and to the arbitrators between the 1st and 6tli of September, 1892, or within the time flxed 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 i^rinted 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 determinatioii of the main questions submitted to the Tribunal, which were embraced 5 6 FINAL REPORT OF THE AGENT OF THE UNITED STATES. in the filth 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 Sep- tember 27, 1892, protesting against this omission in the printed case of Great Britain, as a failure to comply Avith the requirement of the treaty. Attention was called to the fact that it was manifestly con- templated 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 v.'as well known to the British Government that the decision of the two ques- tions above referred to nuist depend upon the evidence produced concerning the nature and habits of the fur seal, and the methods of capture and killing, which are consistent with the jireservation 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 the 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 ex])ressed 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 tlie 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 concairrent regulations referred to in Article VII were not to be taken up for consideration by the Tribunal, except in the contingency of a decision u])on the five points in Article VI unfavorable to the claim of the United States, and so that the subject Avould 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 im])roper 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. 7 for Foreign Affairs stated, being desirous to facilitate tlie progress of the arbitration, would furnish at once to thedovernnientof the United States and to the arbitratoi^s the report of the lUitisli Conmiissioners appointed under Article iX of the treaty, which might be treated as a part of the ease of Great Britain. The Secretary of State, in reply to the British Secretary for Foreign Affairs, concurred with him iu the view that the tilth i)oiut 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 tlie question embraced in the tilth point. He dis- sented 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 oOth 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 15ih of JSTovember, 1SD2, the British minister in Washington delivered to me printed copies of the report of the British Commission- ers 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, correspond- ence, and evidence, was delivered on the 'Ml of February, 181)3, 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 printed case of the British Government. The counter case of Great Britain was delivered to me within the time required by the treaty; bnt when examined it was found to con- tain a large body of evidence which could in no proper sense be regarded as in reply to the case of the United States, and which, under the terms of the treaty, should have been i^resented in the S FINAL RErORT OP THE AGENT OF THE UNITED STATES. original case of Great Britain. Its submission at the time and in tlie form adopted by the P>ritish Government deprived the United States of any opportunity to meet it by means of rebutting, exphmatory, or impeaching testimony. But while it was regarded by tlie President and by the counsel of tiie United States as a wholly unjustifiable proceeding on the part of Great liritaiu, 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 adjournnient 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 npou to i^roduce the report of Henry W. Elliott, made in 1890, to the Government of the United States. The report of Mr. Elliott had never been pub- lished 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 Com- missioners of the two Governments in Washington in February, 1893, it had, at the request of the British Commissioners, been laid before them for sncih use as they saw fit to make of it. The counsel for the United States denied that the British Govern- ment 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 tlie 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 Peport of the British Commissioners Appointed to Inqnire 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 waf] 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 argu- ments at some length, in the course of which they animadverted upon the course pursued by Great Britain in Avithholding from its case evi- dence as to facts material to the determination of the questions sub- mitted 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 justided by the treaty and the rules of t'lNAL REPORl' OF THE AGENT OF THE UNITED STATES. 9 judicial procedure in asking- tlie Tribiiiial 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 ag gravated 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 j)rinted argument of each Government whi(;h accompany this report. It is sufficient to note that three subjects were submitted to the Tribunal for its consideration and decision. The first of tiiese related to the Eussian claim of exclusive jurisdiction in Bering Sea; the second to the right of the United States to x^rotection or j^rop- erty in the fur seals of the Pribilof Islands, and the third to the concur- rent regulations necessary for the i)roper 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 si)eakiiig for the United States, followed by the attorney-general of England, Sir Richard E. Webster, and Mr. Eobinsou 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 conclu- sion was reached that it would be difficult to sustain the claims which had been put forward by the United States in the diplomatic corre- spondence 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 corre- spondence, 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 prop- erty 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 w\as .^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 tlie United States liad 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, whicli tiiey did with unvary- ing regularity, never resorting to any otlier land; that tliey were domestic in their habits and voluntarily jjlaced themselves v\iien on the islaiuls 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 dimin- ishing 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 tlie sea was necessarily Avithout discrimination as to sex, was wastei'iil, 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 i>roserved excei)t 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 propositicm was, sub- stantially, that wherever any uselul thing is dependent for its existence upon the care and induvstryof man, the men who exercise such care and industry have a right of i)roperty in such thing. The counsel of the United States presented these views to the Tri- bunal at length, with great ability, persistency, and force, and I speak with assurance when I say that at the end of weeks ot discussion on both sides their position was unshaken. So far from the British coun- sel refuting tlieir arguments on this branch of the case, it may be said that thei' nuule 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 prop- erty 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 explainition without any reliection npon the impartiality of the neutral arbitrators. I am pleased to state that they are gentlemen of ability and of the high- est standing in their respective countries, and I 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 coui)led the question of the right of FINAL REPORT OF THE AGENT OF THE UNITED STATES. 11 protection or property with the matter of conciirroiit regulations neces- sary for the preserv^ation of the seals. The decision and the protocols lead to the conclusion that the neutral arbitrators looked to the regu- lations as the best method of adjusting the difierences which had arisen between the two litigant nations, and that the argnnieiits of counsel for the United States on the right of protection and proj^erty 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 iuferred 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 adoi)tion 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 rigiit 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 efiect 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 proi^osed 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 Grovernraents, 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 OF THE AGENT OP THE UNITED STATES. I take i)Ieasui-e, in recoouizino- the hearty mariner iu whicli I have been seconch^d by the counsel for the United States and all other per- sons associated with nie in the i^reparation of the case and in my labors before the Tribunal. It only remains for me to make acknowledgment of the cordial recep- tion 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 apart- ments in tlie Ministry of Foreign Affaii's were set apart for the use of tlie 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 SES- SIONS OF THE TRIBUNAL. PEOTOCOL 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 Eight Honorable Lord Hannen, Lord of Appeal, one of the arbi- trators 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 liresident for the present meeting. There were present at the meeting: Mr. WiHiam 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 ller Britannic Majesty's Government : Sir Charles Eussell, Q. C, M. P., ller Britannic Majesty's Attorney- General; Sir Eichard Webster, Q. C, M. P., And Mr. Christopher Eobinson, 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 tl)at tlic Trilmnal adjourn till the -!3d of March. 1 The origiual text of the Protocols is in Frencli. 13 14 PROTOCOL!?. Mr. Tapper, in the name of the British Government, snpported the request of Mr. Williams. Sir Charles Russell, the leading- counsel for Great Britain, stated that tlie counsel, though ])reviously aware of tlie request which wonld be nnide. thoujiht it riiiht to attend the tirst meeting, out of respect for the Tribnnal of Arbitration. The Tribunal of Arbitration acceded to the request made in the name of the two parlies, and agreed to adjourn to the 23(1 of March. The question of the publication of tlie cases and counter cases having been mentioned, the arbitrators stated that it was not a subject for their consideration. In regard to the ])ul)lication of the protocol of this meeting, the arbi- trators present, finding themselves in insufticient 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 IMarch 23. So done in Paris, the 23d of February, 1893, and have signed: The FreHulent : ALFH. DE CoURCEL. The iSpccial .i'jcnl for the United Slates: WiLL1A:\[ WilLIAMS. The Jj/eiil for (rre.dt Britain: CiTARLES H. TurrEB. The Secretary : H. FeEK. Translation certified to be accurate: A. Bailly-Blanchard, ) r' <' . i ,..;^c n. CUNINUUAME, ) PROTOCOL II. MEETINfl 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 tlie United States; His Excellency the Baron Alphonse de Courcel, Senator of France, the arlntrator 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 (Treat Britain; His Excellency the Marquis E. Visconti Venosta, Senator of Italy, the arbitrator named by Italy; PROTOCOLS. 15 And His Excellency Mr. Gregers (xrani, the arbitrator named by Sweden and Koiway; The Honorable John W. Foster and the Honorable diaries H. Tup- per, Minister of Marine and Fisheries for the J>()niiniou of Canada, were present at the meeting- as agents for tlie Governments of the United States and Great Britain. The members of the Tribunal of Arbitration assured themselves that their res])ective powers were in due and valid form. Lord Hannen, one of the arbitrators named by (rreat 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 IHesidency of the Tribunal. The Honorable John M. Harlan, one of the arbitrators named by tiie United States, supported the i)ro[)osal of Lord Hannen. The other members of die Tribunal of Arbitration having agreed to the proposal, Baron de Courcel took the chair as jiresident and deliv- ered the following address: Gentlemen: You 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 tlie 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. iSTowhere, be sure, would you have found yourselves surrounded by a more sincere and warm sympathy with the great and good W(U'k 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 wortliy of attainment than the gradual disappearance from annmg 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 anotiier 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 arbi- trators 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 e[>()ch in inteinational relations. It may be said to have revived the old law of nations, and opened to it a pew era with a boundless j)rospect of beneficent consequences. 16 PROTOCOLS. The two nations which subuiitted to the Geneva verdict, in spite of the sacrifices whi(;h at first it seemed to involve, have evidently not in the long rnn re])ented of their appeal to moral force, for to-day they renew that appeal by common consent, in aiialogons 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 per- sistence of bitter sentiments. Like individuals, nations owe a duty to charity, and when yielding to pride they fail to obey the laws of Provi- dence they inflict upon themselves many s^ifferings. If arbitrations had no other effect than to preserve them fiom this peril, they would be an incalculable blessing and service to the broth- erhood 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 jurivSts, America and Can- ada, 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 have been applied in the highest and most delicate functions in the magis- tracy, 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 ISforth Scandinavia, whose reputa- tion 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 individnaliiy. 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 Repub- lic. They are assisted by counsel accustomed to occupy the front 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 l)rinces 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 dei)ends all human action, give us the strength and inspire us with the wisdom necessary to fultill our difficult mission, and thus to advance a stage nearer to the realization of the words of consolation ami hope of Him who has said "Blessed are the x>eacemakers, for they shall inherit the earth." PROTOCOLS. 17 Gentlemen, I trust that I represent your wishes in proposinj; to you j to break up our present nieetinn', in order to eonvey our respects to the President of the French Republic, together with an expression of our gratitude for the hospitality which we are receiving- from Prance. On the proposal of the president, Mr. A. Imbert, a minister plenipo- tentiary 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 appoint- ment 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 (Jovernments 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 appendices of authorities cited in the argument of the United States, he was author- ized to present at a later date, as an appendix to the argument, a suj>- plement containing the citations omitted, with the reserve of the right on the part of the British •Government to present a reply to the cita- tions 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 admis- sion 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 ith of April next. Done at Paris, the 23d of March, 1893, and signed : The President : ALPH. DE COUECEL. The Agent for the United States: JOHN W. FOSTEK. The A(jent for Great Britain: CHARLES H. TUPPER. The Secretary : A. iMUEliT. Translation certified to be accurate : A. Bailly-Blanchard, T-r ., I Co- Secretaries. H. CUNYNGHAME, B S — VOL I 2 18 PROTOCOLS. PEOTOCOL III. MEETING OP TUESDAY, APRIL 4, 1893. At 11.45 tlie Tribunal assembled, all the arbitrators being present. The president announced that tlie Tribunal had decided to appoint Mr. A. Bailly-Blanchard and Mr. Cunyngliame 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 Eussell then spoke, and at the close of liis speech he submitted the following motion : That tlie agent of the United States be called npon 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 Eichard 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 Uritanuic 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 con- cerned) its right of objection, and. to furnish to the agent of Her Majesty's Govern- ment a copy of the document referred to, for such use as evidence as the Tribunal may deem jiroper to allow ; Not conceding, however, in so doing that either party at this o.r any subseijnent 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 Tribimal, 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 the United States desires to bring to the attention of the Tribunal of Arbitration the fact that he has 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 Commis- sioners A])pointcd to Inquire 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 aud in a manner not allowed by the treaty. 2"''. The agent of the United States moves this Honorable Tribunal to dismiss from the arbitration so much of the demand of the Government of Great Britain as relates PROTOCOLS. 19 to the sum stated upon page 315 of the Counter Case of said GoverniDent to have been incurred on account of expenses in connection with proceedings before the Supreme Court of the United .States; And, also, to dismiss from the arbitration the claim anil request of the same Gov- ernment, 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 eitlier of them, per- tinent or relevant by way of reply to the Case of the United States or to anythino- contained therein, excei)t so far as the same may tend to support claims for dama'>es 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 shonhl be consid- ered separately and that the discussion upon the second motion brouo-ht forward by tlie United States should be postponed to a subsequent period of the proceedings, the Honorable E. J. Phelps addressed the court in support of the tirst motion relative to the supplementary report of the British Commissioners. At 4 p. 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 for Great Britain : CHARLES H. T UPPER. The Secretary : A. ImBERT. TranvSlation certified to be accurate: A. Bailly-Blanchard, ) ^ cy ^ • „ „ ' > (Jo- Secretaries. H. CUNYNGHAME, ) PEOTOCOL IV. MEETING OF WEDNESDAY, APRIL 5, 1893. At 11.45 a. m. the Tribunal asseml)led, all the arbitrators being [)resent. 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 ofler. 20 PROTOCOLS. Sir Charles JUissell opposed the motion iiiHler Co- /Secretaries, II. CUNYNGHAME, ) PROTOCOLS. 21 PROTOCOL VI. MEETING OF FRIDAY, ATRIL 7, 1893. The Tribunal assembled at 11.40 a. ra., all the arbitrators being present. The Honorable E. J. Phelps called the attention of the Tribunal to certain errors in the fhorthaiid notes. The president stated that the only official minutes which were specially under the authority of the Tribunal were the protocols; the responsibility of tlie shorthand notes rested, exclusively with the agents of the two Governments. Mr. James C. 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 conchided 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 meet- ing, the iniblic meeting being postponed to Wednesday, April 12, 1893. Done at Paris, the 7th of April, 1893, and signed: The President : ALrH. DE CoURflEL. The Agent for the United AStates : JOHN W. Fo.STER. The Agent for Great Britain : ClIARLES H. TUPPER. The Secretary : A. ImBERT. Translation certified to be accurate: A. liATLLY-BLAlN'rilART), ) ^ « ^ . ^^ ^, ' ^ (Jo- /Secretaries. H. CUNYNGHAME, ) PROTOCOL VII. MEETING OF WEDNESDAY, APRIL 12, 1893. The Tribunal assend^led 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 Commission- ers, " dated January 31, 1893, the admissibility of which was the subject of the debates which took place at the pi-evious meetings. The terms of this decision are as follows: It is ordered that tlio document entitled n " 8iipplpmentiiry Report of the British Bering Sea Commissioners," dated Jannary 31st, 1893, and signed by George Baden 22 PROTOCOLS. Powell and Goorj^e M. Dawson, and delivered to the indivi.lual arbitrators by the agent of Her Hritaimic Majesty on the 25th day of Mareli, 1893. and which contains a criticism of, or argiimeut upon, the evidence in the docntnents and pa])ers previ- ously 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, constitut- ing the appendices attached to said document of January 31st, 1893, is reserved for further consideration, without prejudice to the right of «)uusel on either side to discuss that qnestion, or the contents of the appendices, in the coarse 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 bo 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 jiresent their arg'uments, and his statement was con- firmed by Mr. James 0. Carter. The president declared that the Tribunal would ai)prove 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 sei)arate the discussion on the matters relating to right and those relating to the regulations which miglit eventually be proposed. Mr. James C. Carter, after thanking France for her hospitable recep- tion, 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 i p. m. the Tribunal adjourned to the next day at 11.30. Done at Paris, the 12th of April, 1893, and signed: The President : ALPH. DE COUROEL. TheAtjctil for the Uvited States : JOHN W. FOSTER. '^e A fjent for Great Britain: CllARLES H. TUPPER. The Secretary : A. ImBERT. Translation certified to be accurate: A. ]>AILLY-Bl.ANCIIARD, ) ^ ry . ■ „ _ ' > Co- (secretaries. H. CUNYNGHAME, ) PROTOCOLS. 23 PROTOCOL VI ri. MEETING. OF THURSDAY, APRIL 13, 1S93. The Tribiiual assembled at 11.40 a. m., all the arbitrators being present. Mr. James 0, 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 Prct Co-iSecretarics. H. OUNYNGIIAME, ) PROTOCOL X. MEETING OF TUESDAY, APRIL 18, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being l)resent. The i^resident, at the opening of the meeting, referring to a few remarks which he had made at the end of the preceding sitting, 24 PROTOCOLS iunioiiTiced that, if in tlie course of the arguments, the arbitrators were led to malce observations or to address questions to counsel, these observations or questions must not be considered as expressing any o])inion on tlie 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 representa- tives of the i^arties a more complete elucidation of the points under discussion. Upon the invitation of the president, Mr. James C. Carter then con- tinued his argument. At 1.30 the Tribunal took a recess. On the reassembling of the Tribunal, Mr. Carter resumed his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. ra. Done at Paris, the 18th of April, 181)3, and signed: The President : AlPH. DE CoURCEL. The Ayent for the United States: JOHN W. FOSTER. The J gent for Great Britain : CHARLES H. TUPPER. The President : A. ImBERT. Translafion certified to be accurate: A. iUiLLY-lJLANCiiARD, ) Co- Secretaries. H. CUNYNGnAME, ) PEOTOCOL XL MEETING OF WEDNESDAY, APRIL 10, 1S93. 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 adjcmrned till the next day at 11.30 a. m. Done at Paris, the lOtli of April, 1893, and signed: The President: ALPII. DE CoURCEL. The Agent for the United Stales : JOHN W. FOSTER. The Agent for Great Britain : CHARLES . H. TUPPER. The Secretari/ : A. ImBERT. Translation certified to be accurate: A. IJAILLY-BLANCHARD, ) (jo- Secretaries. 11. CUNYNGHAME, ) PROTOCOLS. 25 PEOTOCOL XII. MEETlNCr OF TIIT^RSDAY, APRIL 20, ISO?*, Tlio Tribunal assembled at 11.30 a. m., all the arbitrators beiiip,' present. The aueiit for the United States caused to be delivered to the Tribunal a collection of ''Citations from the writings of jurists and economists as an ai)i)endix to the argument of the United States." Mr. James C. Carter resumed his argument of the i)receding day. At 1.30 the Tribunal took a recess. On reassembling, Mr. Carter continued his argument. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 20th of Ajiril, 1803, and signed: T/w Prefiidvnt : AlPIT. DE OoFROEL. The Agcnf for the United States : JoiIN W. FoSTER. The Jgeiit for Great Britain: CHAELES IT. TuPPE'r. The Sccrctarii : A. ImBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) /, o / • ' > (Jo-lsccretaries, H. OUNYNGHAME, ) PROTOCOL XIII. MEETING OF FRIDAY", APRIL 21, 1893. The 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, 1803, and signed: The President: ALPH. DE COURCEL. The Agent for the United States : JOUN W. FOSTER. The Agent for Great Britain : ClIARLES H. TUPPER. The Secretary : A. iMBERT. Translation certified to be accurate: A. Bailly^-Blanciiard, ),.,., , • H, Cunynghame, ) PROTOCOL XIV. MEETING OF TUESDAY, APRIL 25, 1803. The Tribunal assembled at 11.30 a. m., all the arbitrators being present with the exception of Lord Ilannen, confined to his house by illness. 26 PROTOCOLS. Sir Kicliard Webster rose and stated that any decision of tlie Tri- bunal as to a suspension of its labors during the time necessary to insure tlie complete recovery of Lord Ilannen 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 tlie 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, 1803, and signed: TJw Preiiidcnt : ALPH. DE COUROEL. The Agent for the United States : JoiIN W. FOSTEU. The Agent for Great Britain: CHARLES H. TUTPER. The Seer ct aril : ^- ImBERT. Translation certified to be accurate: A. Bailly-Blanciiard, ) (j^,^^,,,Uirlc8. H. CUNYNGIIAME, ) PROTOCOL XV. MEETING OF TUESDAY, MAY 2, 1803. 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 ques- tion of regulations. Sir Charles Russell observed that the counsel of Great Britain wM)uld 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, with- out prejudging the question of right, t^^) give to counsel on each side, who had agreed upon this point, full liberty to arrange their arguments in such manner as they thought most convenient, but always, as fiir as possible, so as to keep the questions of right distinct from the regu- lations, 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 ]). m. the Tribunal adjourned till the next day at 11.30 a. m. Done at Paris, the 2ud of May, 1803, and signed : The President: AlPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. Tlie Agent for Great Britain : CHARLES H. TUPPER. The Secretary : A. ImBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) /, ^ 4 •.„ ' > Co-tsvcreianes. H. Cunynghame, ) PROTOCOLS. 27 Pl^OTOCOL XVI. MEETING OF WEDNESDAY, MAY 3, 1893. Tlio Tiibunnl assembled at 11.30 a. m., all the arlu'trators being [! resent. The Honorable John W. Foster announced that in a very short time he expected to be able to deliver to the members of the Tribnnal a shorthand report, revised and corrected, of Mr. James C. Carter's argument, as concluded the previous day. Upon the invitation of the president, Mr. Frederick II. Coudert then began his argument. 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. Dune at Paris, the 3rd of May, 1893, and signed: The President : ALPH. DE COURCEL. The Agent for the United Stales : JOHN W. FOSTEK. The A(jc)it for Great Britain: ChARLES H. TuPPER. The Secretary : A. ImRERT. Translation certified to be accurate: A. BAILLY-BLANCIIARD, } ri i.y 4 • ,^ . ' > Cu-iSecretarics. U. Cunynghame, ) PROTOCOL XVII. MEETING OF THURSDAY, MAY 4, 1803. The Tribunal assembled at 11.30 a. m., all the arbitrators being |>resent. Mr. Frederick II. 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. in. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 4th of May, 1803, and signed: The President: AlPH. DE CoURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britidn : CHARLES 11. TUPPEIl. The Secret urn • ^- ImBERT. Translation certified to be accurate: A. Bailly- Blanc HARD, ) ., .< ^ • -rr ,, ' > Co-)^ecrctarics. H. Cunynghame, ) 28 PROTOCOLS. TEOTOCOL XVIII. MEETING OF FRIDAY, MAY 5, 1803. The Tiibuiial assembled at 11.30 a. m., all the arbitrators being- present. Mr, Fredericlv E. Coudert resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Mr. Coudert continued his argument. At 4 J), m. the Tribunal adjourned until Tuesday, May 9th, at 11. .".O a. m. Done at Paris, the nth of May, 1893, and signed: The Fresident : AlPH. DE CoURCEL. The Afjcni for the United States : JoHN W. FOSTER. The Agciii for Great Britain : CHARLES II. TUPPER. The Sevretary : A. ImBERT. Translation certified to be accurate: A. Bailly-Blanoiiard, ) ., ., . . „ ' } to- Secretaries. n. CUNYNGHAME, ) PROTOCOL XIX. MEETING OF TUESDAY, MAY 9, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Mr. Frederick E. Condert resumed his argument. At 1.30 the Tribuunl took a recess. On reassembling, Mr. Coudert concluded his argument. The Honoriible Edward J. Phelps rose to in form the Tribunal, before the counsel of Great Britain commenced their argument, that in his reply he would rely upon all the authorities and ])oints referred to between i)ages 130 and 190 of the printed argument of the United States. The president said that the Tribunal would take note of the Iloimr- able Edward J. Phelps's declaration. At 1 ]). m. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 9th of May, 189.'>, and signed: The I'rvsideut: ALPH. DE CoURCEL. The Agent for the United States: JOIIN W. FoSTER. The Agent for Great Britain: CHARLES H. TUPPEB. The Secretary : A. ImBERT. Translation certified to be accurate: A. IUtlly-Blanchard, ) ^i a * • H. Cunynghame, ) PROTOCOLS. 29 PEOTOCOL XX. MEETING OF WEDNESDAY, MAY 10, ISO.'j. 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 mem- bers of the Tribunal a shorthand report, revised and corrected, of Mr. James C. Carter's argument. Upon the invitation of the president, Sir Charle.s 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, 1803, and signed: The President: ALPH. DE CoURCEL. The Agent for the United States: JOIIN W. FOSTER, The Agent for Great Britain: ClIARLES H. TUPrER. The Sccretarg: A. ImDERT. Translation certified to be accurate : A. Bailly-Blanchard, ) ^, ci 4 • „ ^ ' > Co-IScereiaries, H. CUNYNOnAME, ) PROTOCOL XXI. MEETING OF THURSDAY, MAY 11, 1803. The Tribunal assembled at 11.30 a. m., all the arbitrators being l)resent. 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 nuitter 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, 1803, and signed: The Fresident : ALPH. DE CoURCEL. The Agent for the United Stales: JOHN W. FOSTER. The Agent for Great Britain : OhARLES II. TUPPER. The Secretary : A. ImBERT. Translation certified to be accurate: A. Bailly-Blanchard, } ^, a ^ • ^^ ,, ' > Co-iSecretaries. H. CUNYNGHAME, > 30 PROTOCOLS. PKOTOC OL XXII. MEETING OF FRIDAY, MAY 12, 1803. The Tiibiiiial assembled at ll.oO a. m., all the arbitrators being Ijreseiit. Sir Charles Knssell resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, Sir Charles Russell continued his argument. At 4 p. m. the Tribu nal adjourued until Tuesday, May 1(>, at 11 .30 a. ni. Done at Paris, the 12th of May, 1893, and signed: The President: ALPII. DE CoURCEL. The Aijent for the United States : JOHN W. FOSTER. The Agent for Great Britain : CHARLES IT. TUPPER. The Secretarii : A. ImBERT. Translation certitied to be accurate: A. Bailly-Blanciiard, ) ^ ^ 4 • ' ■ C<>-ISccrct Go- Secretaries. II. Cunyngiiame, ) PROTOCOL XXTV. 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 diaries Kussell coutiiined 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 Fresidmt: AJ^PII. DE CoUliCEL. The J(jevlfor the. United States : JOIIN W. FOSTER. The J Co- /Secretaries. H. CUNYNCillAME, ) PliOTOCOL XXV. MEETING OF TUESDAY, MAY L'3, 1893. Tlie 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 (^liarles Russell continued his argument. At 4 }). m. the Tribunal adjourned to the next day at 11.30 a. ni. Done at Paris, the 23rd of May, 1893, and signed: The President : Al^VR. DE COURCEL, The Ayent for the United States: JoHN W. FOSTER. The Jgeiit for Great Britain: CHARLES 11. TurPER, The Secretary : A. iMBERT. Translation certified to be accurate: A. Bailly-Blancitard, ) ., t, ^ • H. CUNYNGITAME, ) PROTOCOL XXVI. MEETING OF AVEDNESDAY, MAY 24, 1893. The Tribunal assembled at 11.30 a. in., 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. ui. the Tiil)uiial adjourned to the next day at 11.30 a. m. Done at Paris, the 21tli of May, 18{)3, and signed: The Fresident : ALPII. DE CoURCEL. The Jgciii for the United States : JOIIN W. FOSTER. . The Agent for Great Britain: ClIARLES H. TUPPER. The Secretary : A, IMBERT. Translation certified to be accurate : A. Bailly-Blanchard, ) ., o..., ...>/„.. .-/.o H. CUNYNGnAME, ) PKOTOCOL XXVII. MEETING OE THURSDAY, MAY 25, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators bein< present. Sir Charles Eussell resumed his argument. At 1.30 the Tribnnal took a recess. On reassembling, Sir Cliarles Kussell continued his argument. At 4 p. m. the Tribnnal adjourned to the next day at 11.30 a. m. Done at Paris, the L'oth of May, 1893, and signed: The President : AlPII. DE GOURCEL. 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, | (jo- Secretaries. 11. Cunynghame, ) PEOTOCOL XXVIII. meeting of FRIDAY, MAY 26, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Sir Charles liussell 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 2Gth of May, 1893, and signed: The rresident: AlPH. DE COURCEL. The Agent for the United States: JOHN W. FOSTER. The Agent for Great Britain : ClIARLES H. TUPPER. The Scrretarg: A. ImBERT. Translation certified to be accurate: A. Bailly-Blanchard, ) ., ,-, ., . „ ' > Co-occretaries. H. Cunynghame, > PROTOCOLS. 33 PROTOCOL XXIX. MEETING OF TUESDAY, MAY 30, 1803. 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 reeess. Ou reassembling. Sir Charles Russell continued his ari;ument. At! p. m. tlie Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 30tli of May, 1803, and signed: The President : AlPII. DE CoUROEL. The Agent for the Vniled Siaies: JOHN W. FOSTER. The Agent for Great Britain: ClIARLES II. TUPPER. The Secrclari/: A. ImPEUT. Translation certified to be accurate: A. BAILLY-BLANCIIARD, ] ri u ^ • „ ' } Co- Secretaries. H. Cunynghame, ) PROTOCOL XXX. meeting of WEDNESDAY, MAY 31, 1803. The Tribunal assembled at 11.30 a. m., all the arbitrators being- present. Sir Charles Russell, in continuation of his argument, presented to the Tribunal the ibllowing paper: The British Government having submitted to the arbitrators certain questions of fact as involved in the clain)s for damage set iorth in the schedule to the British case, pages 1 to 00, inclusive, ask for the fol- lowing 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 confisca- tions, 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 w^aters 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 nuinicipal laws of the United States; and B s— VOL I 3 34 PROTOCOLS. i"i. That the snid several searelics, seizures, coiideiniiatioiis, confisca- tions, lines, iiiii»risf)nnients, and orders were not made, imposed, or {iiven under any claim or assertion ot'riglit or jurisdiction, except such as is submitted to tlie decision of the arbitrators by tlie questions in ArticUi VI of the Treaty of Arbitration. Sir Charles Kussell furllier announced that Great Britain would not ask the Tribunal for any finding for damages upon and under articled of the convention or modus vivcndi 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 Ai)ril 18, 18I)L>. Sir Cliarles Kussell then concluded his argument. Sir liichard Webster then commenced his argument on behalf of Great Britain. At 1.30 the Tribunal took a recess. On reassembling. Sir liichard Webster continued his argument. At 4 p. ni. the Tribunal adjourned to the next day at 11.30 a. m. Done at Paris, the 31st of May, 1893, and signed: The Preside)! t : AlPH. DE CoURCEL. The J(), all the arbitrators being present. Sir liichard Web-itcr resumed liis argiinieut. At 1.30 the Tribunal toDJc a recess. On reassembliiiii', Sir Kichard Webster continued his ar (jo-becretaries. H. CUNYNGHAME, ) PEOTOCOL XXXV. MEETING OF THURSDAY, JUNE 8, 1893. The Tribunal assembled in the council cliamber 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 tlie United States, in the event that the determination of the High Trilnmal of certain questions described in the seventh article of the treaty as '•tJie foregoing questions as to the exclusive jiuisdictiou of the United States" should, as mentioned in said seventh article, "leave the subject in such a condition tliat the concurrence of Great Britain is necessary to the establishment of regula- tions for the proper protection and preservation of the fur seal in, or habitually resort- ing to, Bering Sea," submits that the following regulations are necessary and that the sanu' should extend over tlie waters hereinafter in that behalf mentioned: First. No citizen or subject of the United States or Great Britain shall in any man- ner kill, capture, or pursue anywhere upon the seas, within the limits and boundaries next hereinafter prescribed for the oijeratiou of this regulation, any of the animals commonly called fur seals. Second. The foregoing regulation shall apply to and extend over all those waters, outside the jurisdictional limits of tlic above-mentioned nations of tlie North Paciiic 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 tlie 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 ]iropclled wholly by paddles, and manned by not more than two men each, in the way anciently practiced by such Indians. Third. Any ship, vessel, boat, or other craft (other than the canoes orboatsmentioned 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 kill- ing, pursuit, or capture of said seals, or prosecuting a voyage for that purpose within the waters above bounded and described, may, with her tackle, ajiparel, furniture, ])rovisious, and any seal skins on board, be captured and made prize of by any iiublic armed vessel of either of the nations aforesaid; and, in case of any such capture, 38 PROTOCOLS. limy be talicii into any port of tlio nation to Avliicli t1ie raptnrins; vessel belongs and 1)(< condemned by proceedings in any court of competent jurisdiction, which jiro- ceedings shall be conducted so far as may be in accordance witli the course and practice of courts of admiralty when sitting as prize courts. Tlie Agent of the Uuited States also read the following- stateiueut: Substitute proposed by the Government of the Uuited States for tindings of facts submitted by the Government of Great Britain: 1. That the several searches and seiztires, 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. Which and how many of the vessels mentioned in said scliedule were in whole or in part the actual property of British subjects, and which and how many where in wliole or in part the actual property of American subjects, is a fact not passed upon by this Tribunal. Nor is the value of said vessels or contents, or either of them, deterniined. 2. That the seizures aforesaid were made u]ion 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 Uuited States, instructions, a copy of one of which is annexed Iiereto, 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 tiling of libels, a copy of one of which is annexed hereto, marked " B," and that the libels in the other jiroceedings were in all substantial respects the same; that the alleged acts or oH'cnses for which sai (Jo-lsccrctitrtcs. 11. CUNYNGIIAME, ) PROTOCOL XXXVIL MEETING OF TUESDAY, JUNE 13, 1893. The Tribunal assembled at 31.30 a. m., 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 questioii of regulations. PROTOCOLS. 41 At 4 p. in. the Tribniinl adjonniod to tlie next dny at 11.30 a. ni. Done at I'aris, tlie lotli of , lane. 181)3, and .si<>iiod: The President : ALPII. DE COUUCEL. The Agent for (he T'vited States: JoHN W. FOSTER. The Agent for Great Jh-itnin: ClIARLES H. TurPEE. The Seereiary: A. ImEEUT. Translation certified to be accurate: A. BAILLY-BLANCIIArtD, ) ., ,, , . „ ' > (Jo-ISecretancs. H. CUNYNGIIAME, ) PROTOCOL XXXVIII. MEETING OP WEDNESDAY, .TUNE 14, 1803. Tlie Tribunal assembled at 11.30 a. in., all the arbitrators being jiresent. Sir Kichard. Webster resumed his argument. At 1.30 the Tribunal took a recess. On reassembling. Sir Eichard Webster continued his argument. At 4 p. in. 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 COUSJOEL. The Agent for the United States: JOHN W. FOSTEK. The Agent for Great Britain: CHARLES H. TUPPEK. The Secretimj : A. ImdERT. Translation certitied to be accurate: A. Bailly-Blanchard, ) ^, r< . . H. CUNYNGHAME, ) PBOTOCOL XXXIX. MEETING OP THURSDAY, .JUNE 15, 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 a. m. Done at Paris, the 15th 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 Secretarg : A. ImBERT. Translation certitied to be accurate: A. Bailly-Blanchard, / ^^ ,, ^ . H, Cunynghame, S 42 PROTOCOLS. PROTOCOL XL. MEETING OF FRIDAY, JUNE 16, 1893. The Trihnnal assembled at 11 o'clock, all the arbitrators being present. Sir llicliard Webster resumed liis 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. (3unynghame, the Tribunal authorized Mr. Heniy Han- nen. barristci- at law, to perform his duties. At 3.30 p. m. the Tribunal adjourned until Tuesday, June 20th, at 11.30 a.m. Uone at Paris, the ICth of June, 1893, and signed: TheVrcsldent: ALPH. DE COURCEL. The Aocnt for tlie VnUt'd Sliitis : JOHN W. FOSTER. The A(jent for Great Britain : CHARLES H. TUPPER. The Stcnlanj : A. ImEERT. Translation certified to be accurate: A. Bailly-Blanchard, ) r, ^i 4 ■ H. CUNYNGHAME, ) PROTOCOL XLL 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 ller Britannic Majesty laid before the Tribunal a scheme of regulations worded as follows: REGULATIONS. 1. All vessels engaging- in pelagic sealing shall be required to obtain licenses at one or other of the following pox'fs: Victoria, in the Province of British C'dlnnibia. Vauconver, in the Province of i^ritish Coliunbia. Port Towuseud, in Washington Territory', in the United States. San Francisco, in the State of California, in the United States. 2. Such licenses shall only be grantcul to sailing vessels. 3. A zone of 120 miles around the I'ribilof Islands shall be established, -within -uhich no seal hunting shall be; permitted at any time. 4. A close season, fiom the IJjth of Seidemlxir to the 1st of July, shall he established, during -which no pcdagic sealing shall Ix; permitted in ]5ei-ing Sea. 5. No rifles or nets shall be used in pelagic sealing. 6. All sealing vessels shall be required to carry :i distinguishing ll.ig. 7. The masters in charge of sealing vessy the court was based upon the grounds set ibrtli in the libel. Annexes A and B. (For the text of these annexes see Protocol XXXV, Annexes A and B to the find- ings 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, 188G-90, and the approximate distance from land when seized. The distances assigned in the cases of the Carolena, Thorn- ton and Onward are on the authority of United States Naval Commander Abbey (see Fiftieth Congress, second session, Senate Executive Document, No. 10(5, pp. 20. 30 40). The distances assigned in the cases of the Anna Beck, W. P. Sayivard, Dol- pMn, 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.) Jsnine of vcsspL Carolena. . Thornton . Onward . . . Tavorite.. Anna Eeclc W. P. Say ward. Dolphin G race Alfred Adams. . Ada Triumph Juanita I'athtinder Triunipli Black Diamond. Lily Ariel Kate Minnie Pathiiuder Date of seizure. Ai)proxiuiale distance from hinil wlicn seized. United States vessel making seizure. Aug. l,l!^8C Aug. l,18.-^6 Aug. 2,1880 Aug. 2,1886 July 2, July 9, July 12, JulV 17, Aug. 10, Aug. 25, Aug. 4, July 31, July 29, Julv 11, 1887 1887 1887 1887 1887 1887 1887 1889 1889 1889 July 11, 1889 Aug. 0,1889 July 30, 1889 Aug. 13,1889 Julv 15,1889 Mai-. 27, 1890 7a miles 70 miles 1 15 miles Warned hy Corwiu in ahoiit same po.sition as Onward. 66 miles 59 miles 40 miles 96 miles 62 lu ilos 15 miles Warned hy Eush not to enter liering Sea. 06 miles 50 miles Ordered out of Bering Sea hy Hush. (?) As to position when warned. 35 miles 66 miles Ordered out of Bering Sea h v Kush. do ' 65 miles Seized in Neah Bay (1) Corwin. C'orwin. Corwin. Knsh. l^ish. llwAi. Itiish. Knsli. Bear. linsh. Bush. Rush. Eush. Eush. j;ush. Corwin. (1) Neah Bay is in the State of Washington, and the J^ath finder was seized there on charges made a<'ainst her in' Bering Sea in the previous year. She was released two days later. Mr. Cliristo])l»er Eobiiison then began liis urguinent on the qnostion of rcguUitions. At 4 p. ni. the Tribunal iuljouriied to the next day at 11.30 a. m. Done at Paris, the 20th of June, 1893, and signed: The rresidcut: AlPH. DE COUROEL. The A (lent for ihe United States : JOHN W. FOSTEK. The Af/ent for Great Britain: CHARLES H. TUPPER. The Secretary: A. ImBERT. Translation certified to be accurate: Co-Secretary: A. BAILLY-BLANCnARD. Acting Co-Secretary : HeNRY A. HANNEN. PROTOCOLS. 45 PKOTOCOL XLII. MEETING OF WEDNESDAY, JUNE 21, 1S03. The TribuDcil assembled at 11.30 a. ni., all the arbitrators being present. Sir Richard Webster produced and i)roposed to read to the Tribunal certain documents recently presented to the I*arlianK'nt of Great Brit- ain containing- correspondence between Great Britain 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 tbe 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 ami concliuled his argu- ment. 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, ami signed: The rresldent: AlPII. DE CoURCEL. The Agent for tlw, United Slates : JOHN W. FOSTER. The Jycnt for (Ireat Britain : ChARLES H. TuPPER. The Secretary: A. ImeERT. Translation certifted to be accurate: Co-Secretary: A. BAILLY-BlANCHARD. ActiiKj Co-Secretary : HeNRY A. HANNEN. PROTOCOL XLIII. MEETINGr OE TUURSDAY, JUNE 22, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps bej^an his argument on behalf of the United States. At l.'iO the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued his argument. 46 PROTOCOLS. At 4 p. m. the Tribunal adjoiinied to the next day at 11. .'50 a, in. Done at Paris, the 22nd of June, 1803, and signed: The President: AlPII. DE COURCEL. The Agent for the United Slates: JOHN W. FOSTEII. The Agent for Great Britain : CHARLES H. T UPPER. The Seeretarij : A. ImuERT. Transhition certilied to be accurate: Co-Sicretary : A, BATELY-BLAlN^CnARD. Acting Co-Secretary: llENRY A. HAJN'NEN. PEOTOCOL XLIV. ICEETINa OF FRIDAY, JUNE 23, 189 The Tribunal assembh'd at 11.30 a. ui., all the arbitrators being l)resent. The Honorable Edward J. Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling', tlie Honorable h^dward J. I'lielps 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, 1893, and signed: The President : AlPH. DE CoURCEL. The Agent for the United Stales: JOHN W. FOSTER. The Agent for Great Brilain : OlIARLES H. TUPPER. The Secretary : A. ImBERT. Translation certilied to be accurate : Co-Secretary: A. BAILLY-BlANCIIARD. Acting Co-Secretary : HENRY A. HANIS'EN. PEOTOCOL XLV. MEETING OF TUESDAY, JUNE 27, 1893. The Tribunal assembled at 11.30 a. m., all tl)e arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At 1,30 the Tribunal took a recess. (Jn reassembling, the Honorable Edward J. Pheli)s continued his argument. PROTOCOLS. 47 At 4 [). 111. the Tribunal adjourned to tbe next day at 11.30 a. ui. Done at Paris, tlie tilth of Juue, 1893, and siy,ned: The President: AlPII. DE CoURCEL. The A Co-tSecretanes. H. Cunynghame, ) PROTOCOL XLVII. meeting of THURSDAY, JUNE 29, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. Tlie Honorable Edward J.Phelps resumed his argument. At 1.30 the Tribunal took a recess. On reassembling, the Honorable Edward J. Phelps continued hi« argument. 48 PROTOCOLS. At 4 p. ni. the Tribunal adjouined until Monday, July 3rd, at 11.30 a. m. Doue at Paris, tlie 29th of June, 1893, and signed: The President : ALPH. DE CoURCEL. The Agent for the United States: JOHN W. FOSTER. The Aijent for Great Britain : CHARLES H. TUPPER. The Secretary : A. IMBERT. Translation certified to be accurate: A. Bailly-Blanciiaed, ) ,^ t, . . „ ' > Co-oecrctancs, 11. CUNYNGIIAME, ) PROTOCOL XLYIII. MEETING OF MONDAY, JULY 3, 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. At 4 p. m. the Tribunal adjourned to the next day at 11.30 a. m. Hone at Paris, the 3rd of July, 1893, and signed: The President: ALPII. DE COURCEL. The Agent fur the United Slates: JOHN W. FOSTER. The Agent for Great Britain: CHARLES H. TUPPER. Tlie Secretary : A. ImBERT. Translation certified to be accurate: A. Bailly-Blanchaud, ) ^, ., . .^ n. CUNVKOHAME, ) PROTOCOL XLIX. MEETING OF TUESDAY, JULY 4, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being IJ resent. 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 Tribntial adjouiiied to tin- next day at 11. oO a. in. Done lit Paris, the 4tli of -luly, 18!K>, and signed: The Pirtiifleiit : ALPII. DE COI'RCEL. The AU the Tribunal took a recess. On reassembling, the Honorable l^'dward J. lMieI[»s continued his argument. At 1 p. m. the Tril)unal adjourned to the next day at 11.30 a. ul Done at Paris, the 5th of July, 18!»3, and signed: The President : ALI'IL DE COUROEL. The A(jent for the I'nlted SIdtes: JOIIN W. FOSTER. The A(jent for (Ireat nritiiiii: ClIARLES II. TUPPER. The Seeretanj : A. IMBERT. Translation eertitied to be aeeurate: A. Bailly-Blancilvrd, ) ., ^, , . H. CUJNYNGIIAME, ) PJJOTOCOL LI. MEETING OF THURSDAY, JULY 0, 1893. The Tribunal assembled at 11.30 a. m., all the arbitrators being present. The Honorable Edward J. Phelps resumed his argument. At J. 30 the Tribunal took a reeess. On reassembling, the Honorable Edward J. Phelps continued his argument. At 1 p. m. the Tribuinil_ adjourned to the next day at 11.30 a. m. Done at Paris, the 0th of July, 1893, and signed: The Pren'ident: AlPII. DE COURCEL. The A(jent for the United States: JOHN W. FoSTER. The A(jnit for (Ireat Jlrilain: ClIARLES H. TuPPER. 2 he Secretari/ : A. IJMRERT. Translation certified to be acjcurate: A. IjAilly-Blangiiaru, ) /, w , • n. Cunynghame, ) B S — VOL I 4 50 PROTOCOLS. PiiOTOCOL LII. MEETINCI OF FlIIDAY, JULY 7, 1893. Tiie Trilmiiiil asseuibled at 11.30 a. in., all the arbitrators bciiijr present. The Honorable Edward J. Plielps resumed his arj;anieut. 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: Tlui Vrmdvnl: AlPIL DE COUIJCEL. The J fjeiit for the United jStalcs: JOIIN W. EOSTKR. The Arjciit for \'asliington ]<\'bruary 29th, 1892, the ratifications of which by the (Jovernniei.ts of the two countries were exchanged at London on ]\[ay the 7th, 1892, it was, amongst otiier things, agreed and concluded, that the (piestions which had arisen between the Govern- ment 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 Sea, and concerning also the preserva- tion of the fur-seal in or habitually resm-ting to the said sea, and the rights of the citizens and subjects of either country as regards the tak- ing of fur-seals in or habitually resoi'ting to the said waters, should be submitted to a Tribunal of Arbitration to be composed of seven arbi- trators, who should be appointed in the following n)anner, that is to say, two should bo named by the President of the United States; two should be named by Her Britannic ^^ajesty; His Excellency the Presi- dent of the French Republic sh((uld 1)0 jointly rcfpiested by the high contracting x^artics to name one; llis JMajosty th". King of Italy should 52 PROTOCOLS. be so reqiiested to name one; His ^lajesty the Kingj of Sweden and Norway . should be so nMjuested 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 ac(iuaiiited 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 pro- ceed imjtartially and carefully to examine and decide the questions which had been or should be laid before them as in the said treaty pro- vided on the part of the Governments of the United States jind of Her Britannic Majesty respectively, and that all questions considered by the Tribunal including the final decision should be deteriniued by a majority of all the arbitrators; xViid whereas by Article VI of the said treaty, it was further pro- vided as foUows: In (lecidini;- the matters subiiiittcil to the said arbitrators, it is aj^roed that the following hve jioints shall be siibiiiitted to them in order t!iat theii award shall embrace a distinct decision npon each of said live points, to wit: 1. What exclusive jnrisdiction in the sea now known as the Bering Sea, and what exclusive riglits in the seal lishcries therein did Kussia 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 iTicluded 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 exercis'.d 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 wattsr boundary in the treaty between the United States and Russia of the 30th of March, 1867, pass nuiuipaircd to the United States under that treaty? 5. Has the United States any right, and if so what right, of i^rotection or i>rop- crty m the fur-seals frequeutiug the islands of the ITnited States in Bering Sea when such seals are found outside the ordinary 3-niile limit? And whereas by Article VII of the said treaty it was furtiier agreed as follows: If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall h;ave the subject in such position that the concurrence of (xreat Britain is necessary to the establishment of regulations for the proper ])ro- tection and preservation of the fur seal in or habitually resorting to the Bering Sea, the arbitrators shall tlien determine what concurrent regulations, outside the juris- dictional limits of the respective Governments, are necessary, and over what waters such regulations should extend; The high contracting parties furthermoi-e agree to cooperate in securing the adhe- sion of other i)owers to such regulations. And whereas by Article VIII of the said treaty, after reciting that the high contracting parties had fouiul themselves unable to agree upon a reference which should include tlie question of the liability of each PROTOCOLS. 53 for the injiuies alleged to liave 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 liigh contracting parties agreed that "either of them might submit to the arbitrators any question of fact involved in said claims and ask for a linding thereon, the question of the liability of either Government upon the facts found to be the sul)ject 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 vStates, and the Honorable John T. Morgan, Sen ii tor of the United States, to be two of the said arbitrators, and Her Britannic INIaj- esty named the Eight Honorable Lord Haiinen and Sir John Tiu)mpson, JVIinister of Justice and Attorney-General for Canada, to be two of the said arbitrators, and His Excellency the President of the French llepnb- lic 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 Fmilio Visconti Vcnosta, former Minister of Foreign Aifairs and Senator of the Kingdom of Italy, to be one of the said arbitratojs, and Plis IVTajesty the King of Sweden and Norway named Mr. Gregers Gram, Minister of State, to be one of the said arbi- trators; And whereas We, the said Arbitrators, so named and apiiointed, hav- ing taken u])on ourselves tlie burden of the said arbitration, and having duly met at Paris, ])ro(*eeded impartially and carefully to examine and decide all the<|uestions submitted to us, the said arbitratm-s, under the said treaty or laid before us as provided in the said treaty on the ])art of the Governments of Her Britannic J\r;ijesty and the United States, respectively: Now We, the said Arbitrators, having im|)artially and carefully exam- ined the said up to the time of tlie cession of Ahiska 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 iishcries 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 Jolm Thompson, Marquis Visconti PROTOCOLS. 55 Venosta and Mr. Gregers Gram. Senator Morgan voted againt^t it, reserving unto himself to propose an amendment, when the second ])oint would have been considered. As to the second of the said five points mentioned in Article VI, tlie following' decision was adopted by a miijority composed of tlie Baron de Courcel, Mr. Justice II;u"lan, Lord Ilannen, Sir John Thompson, Marquis ^'isconti Venosta, and Mr. Gregers Gram: Great Britain did not recognize or concede any claim, upon the part of Russia, to exchisive jurisdiction as to the seal lisherics 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 tlie two lirst i)oints: 1. From the time tliat Russia first discovered and occupied Boring Sea and the coasts and islands thereof, until she ceded a portion thereof to the United States, slie claimed tlie seal lisheiies in Bering Sea and exercised, exclusively, the right to the usufruct, and to own the jiroduct of such seal iisheries, and to protect the same against lieing interfered with, in those waters, hy the people of any other country; and also tlie exclusive jurisdiction that was found necessary for those ]>iiiposes; j,nd, also, the exclusive jurisdiction to regulate the hunting of fur-seals in tliose waters; and to grant the right of hunting them, to her own suhjects. 2. The attitude of Russia towards the fur-seal fisheries in Bering Sea, as descrihed above, being known to Great Britain, she acquiesced in the 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 se])arately. On the lirst of these questions the following decision was unanimously ado[)ted: The body of M'ater now known as the Bering Sea was included in the ])liraso "Pacific Ocean" as used in the treaty of 1825 between Great Britain and Russia. On the second of these questions the following decision was adojited by a mnjority com])osed of Baron de Courcel, ^Ir. Justice Harlan, Lord Hannen, Sir John Thom])Son, Marfjuis Visconti Venosta, and Mr. Gregers Gram, Senator Morgan voting in the negative: No exclusive riglits 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 the treaty of 1825. Baron de Courcel remarked that, in adhering to the decision which had just been adopted, his intention is to state the ])osition held by Bussia in the Bering Sea oidy in aslar as it has been pi-esentcd for the consideration of the Tribunal of Arbitration by the two (lovernments Avho have (xnistituted tlie said Tribunal, and that he by no means intends to prejudge the ap])reciation made by Russia herself, as that ])ower has not Ixmmi heard by the Tribunal, nor placed in such a situa- tion as to make her views known to the same. 56 PROTOCOLS. As to tlie fourth of the said live points mentioned in Article VI, the followinj^- decision was i)roi)ose(l by Lord Jiannen: That all tLe rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water bonndary in the treaty between tlie United States and Russia of the 30th March, 18G7, did pass nnimpaired to the United States under the said treaty. This proposition was nnaniniously ado^jtcd. As to the ilftli of the said live points mentioned in Article VI, the following decision was proposed by Lord llannen: The United States has not any right of jjrotectiou or property in the fnr seals fre- quenting the islands of the United States in Bering Sea, when snch seals are found outside the ordinary S-uiile limit. Tliis proposition was ado])tod l)y a majority, composed of Baron de Conrcel, Lord llannen, Sir Jolin Thonipson, Marquis Visconti Venosta, aud Mr. Gregors 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 might legally employ for the protection of his property. They also stated tliat in tlieir opinion, independently of any right of proi)erty in the fur-seals themselves, the United States, as the owner and pro- l)rietor of the industry conducted on the Pribilof Islands, and which industry consisted in taking fur-seals on those ishmds for connnercial purposes, had the right to protect these animals against being taken in the open w.iters of Bering Sea and the North Bacific Ocean outside of territorial waters, by any method, such as pelagic sealing, which Avould necessarily extenninate the race. Senator Morgan thereupon submitted the following nuition: I propose to amend the proposed aAvard and decree by inserting, after the words not mil/, the word special, and at the end of the proposed award and decree, the following words: "heyond iher'ufltts that all ualious liavc under the hiteiiKilioiial law, in rcftpect of Helf-proleciion and self-defense." So that the entire award, as to point five in Article VI of the treaty, would read as follows, viz: .-/,s 1o He fifth of ihe said x>oin1s, tre, heiiig a majoritu of the said arhiira- lors, do decide and delermiiie that ihe United States has iiot any special riyht of protection or property in the fnr seals frequenting ihe islands of the United Stales in Bering Sea, v-hen snch seals are found outside the ordinary 3-mile limit, heyond ihe rights that all nations hare, niider tlie international law, in respect of self-protection and self-defense. Mr. Justice Harlan and Senator Morgan voted in favor of this amend- ment, stating thai sis their views, as above set forth, upon the question of pro])erty and protection, were not accepted by the majority, they would prefer the :inswer to the tit'ih point to be in the words indicated by the last amendment- ])roi)()sed by Senator Moi-gan, rather than in the Avords approved by the miijoi-ity. Lord llannen, Sir John Thompson, IManpiis Visconti Venosta, aud J\lr. Gregers Gram voted against the proi)osed aiueudment. PROTOCOLS. 67 Baron de Conrcel abstained fioui voting-. In coiiseiiuence the aineiuliiieiit proposed by Senator Morgan was rejected. Mr. Gregers Gram here expressed the desire that it be well under- stood that tlie Tribunal, in answering as it has done the foregoing- questions, did not propose to decide what are, according to the princi- ples of international law, the ordinary limits of territorial waters. The arbitrators concur that tliey 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 fiom the coast, in accordance witli the wording of the litth ques- tion of Article VI of the treaty. Senator Morgan here asked that the following morion be taken into consideration: I move that the Trihnnal of Arhitration i^roceed in sucli order as may he p]'o])cr, hefore a final award is made in the case, to consider and deckire the ri,i;hts of the citizens and subjects of either country as regards the taking- of lur-seal in or resort- ing to tlie waters of Bering Sea. This inquiry and decision includes the entire; herd that resorts, hahitu.illy, in the sunnner and autumn, to the islands of St. Paul and St. George, in leering Sea. The answers given to the live points stated in Article VI of the treaty do not, in my .iudgment, answer the question above stated, which the treaty provides shall be submitted to the Tribunal of Arbitration; and an award that does not specifically answer that (juestion can not be "a full, perfect, and iiual settleiucnt of all the questions referred to the arbitration.'' I would proceed to point out the grounds and reasons on which I base this motion, bnt I am aware that, in the opinions delivered by a majority of the arbitrators, I hey consider either that this (pie.stion is not required by the tueaty 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 actiug. This motion gave rise to a debate. Mr. Justice Harlan atul Senator Morgan voted for its adoption. Baron de Conrcel, Lord Ilannen, Sir John Tliompson, Maiquis Yis- conti Yenosta, and Mr. Gregers Gram, constituting a majoiity 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 tliis motion. In cofisequence, the motion was rejected. The arbitrators, having reached this point of tlieir deliberations, con- curred in liolding that the decisions rendered by tliem on Uie ([iiestioiis as to tlie exclusive jurisdiction of the United States, mentioned in Article VI of the treaty, "leave the subject in sm-h position that the concurrence of Great Britain is necessary to the estal)]isliment of regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Bering Sea." 58 ' PROTOCOLS. In coiiscquoiice they dccidcil t(» pass to the consideration of the con- cun-ent leguhitions called for l)y Article VII of the treaty. Mr. Justice Harlan pre-enicd the follo\vin pnrixj.so of Article VII of the treaty is to .secure, in any and all events, the jirniicr jiroteition iiud preservation of the herd of seals frequenting the Pribilof Islands; and in the iVaniing of regnlations, nnder the treaty, uo extent of pelagic sealing should bo allowed which will seriously endanger the acconiplish- uient of that end. Senator lAro/ijan and ^Ir. Justice Harlan voted for the adoption of this resolution. Lord Hanneu and Mr. Greyers Gram declared that tliey abstainly to Indians dwelling on the coasts of the territory of the United States or of Great Jb-ifaiu, and carrying on in their canoes, at a small distance from the coasts where they dwell, fur-seal fislung. AuT. !». The concurrent regulations hereby determined Avith a view to the protec- tion and preservation of the fur-seals shall remain in force until they have been, in A\ hok', or in part, abolished or modified by common agreement between the Goveru- uients 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. 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 i)repare, the wording- presented collectively by Baron de Courcel, Marquis Visconti Venosta, and Mr. Gregers Gram. 62 PROTOCOLS. The arbitrators then proceeded to eotisider article 1 of this draft. Sir Jolm Thompson moved, as an amendment, that the i)rohibited zone around the Pribih)f Ishmds be 30 miles, inclnding territorial waters. This amendment was rejected by tlie vote of a majority, comi)osed of Baron de Gourcel, Mr. Justice Harlan, Senator Morgan, Maripiis Visconti Yenosta, and Mr. Gre.uers 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 adojjted in conformity witli the draft by all the arbitrators with the exc-eption of Sir John Thompson. As to article 2, Sir John Thompson moved the following amendment: "That the date of April 3 5th, mentioned in the draft, be changed to May 1st," and stated at lengtli his views in support of the amendment. Mr. Justice Harlan and Senator Morgan voted against this amend- ment. They 'concurred in stating that the proper i)r()tection and preser- vation 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 350 of north latitude and east of 180° of longitude from Green- wich. But as the closed time from April 15th to July 31st, in connec- tion with other provisions, gave some hope that this race might be saved from destruction by pelagic sealing, and as that period had been recomiiiended by the arbitrators from France, Italy, and ]S"orway, they had, in the interest of conciliation only, expressed their willingness to accept the clcsedtime proi)osed by Baron de Gourcel, Marquis Visconti Venosta, and Mr. Gregers Gram in the original draft submitted by them, Bnt they objected to the i)roi)osed change from April 15th to May 1st as one that would put in peril the existence of this race of animals, and teiul to defeat its proper protection and preservation. The duty of the Tribunal, they said, was to prescribe such regidations as would properly protect and preserve this race, whatever eifect such regulations might have upon the business of pelagic sealing. The anuMidment presented by Sir rlohn Thompson was sustained by Lord Hannen, Marquis Visconti Venosta, antl Mr. Gregers Gram, Baron de Gourcel 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 ])elagic sealing, attacking pregiumt 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 whicli he is not unaware imposes strict limitations upon the taking of fur seals on the high sea. In consetpience, the aiuendiuent of Sir John Thom[)son to insert th" date of ^lay 1st instead of tiiat of Ai)ril 15th in article 2 was adopted. PROTOCOLS. 63 Sir Joliii Tlu)iii])S()i) tlicn iii;>\r(] a sicnnd aiiieiKlinoiit, worded as follows: That tlic words : From Maij lat lo Juhj Slut bu struck out and replaced hy the words : From Jcniuarif lut to JitJji Lst. Mr. Justice Harlan and Senator IMorjian expressed tliemselves sti'ongly against allowing pelagic sealing during the month of July, and voted against the aniendnient. Lord Hanneu abstained tenii)orarily 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 princii)le to the amendment of Sir John Thomi)son, he wouhl ask that this date be replaced by that of July IHth. It was during the month of July that the work of reproduction of tlie seals took p'ace, chietly during the tirst fortnight of that month, during which many of the gravid fenmles were still on the track between the i)asses of the Aleutian Islands and the Pribilof group. r>ut, he said, the (juestion of tlie close season 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 IJering Sea, and that the use of lirearms being, according to Article VI of the project, prohibited in that sea, all iielagic sealing in future would only be allowed by means of spears or harpoons. He had already had occasion to make known his ])oint of view. He felt disposed to place serious limitations upon pelagic s(;aling, but he did not intend to suppress it, neither in principle nor in ])iaetice; neither opetdy, 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 (piestions of right. He did not possess sufticient information to form an opinion in regard to the practical effect of the prohil)ition of lirearms and the exclusive use of spears and harpoons. If the i)rohibition in (juestion had ai)plied, as was i^roposed in the j)roject, to one zone only of ])elagic 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 seal- ing, he could not fVn-esee its consequen(;es 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 acce])ting- a closed season from January 1st to July 15th, in place of the said prohibi- tion, it would not be suitable to decide that every three years pelagic sealing be suspemled for the period of a whole year. This would be only a restriction, the consefpieiu-es of which he would feel prepared to appreciate, at least by comparison. 64 PROTOCOLS. Mr. Gram tlioiiglit, like Marquis Visconti VeDOsta, that pelagic seal- ing 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 amend- ment, because he considered i^elagic sealing in the spring as essentially detrimental to the preservation of the species of fur seals. According to his notion the close season for fnr-seal tishing should extend until July loth, at which time the total number of fenmles, save some unimpor- tant exceptions, had arrived at the Pribilof Islands to deliver their young; but he would cheerfully make the sacrifice of the fifteen lirst days in July to obtain the relinquishment of all pelagic sealing in the spring. The second amendment of Sir John Thompsou was consequently negatived by a majority of the arbitrators. ]]aron de Courcel then moved the following amendment as a compro- mise: That tb(3 words : From May 1st to July Slst be rei)l:ic'ed by the words : From Jauuurij 1st to July 10th. Sir John Thompson declared that as, in his opinion, the Tribunal did not x)ossess sufticient information to determine whether the abandon- ment of the right to fur-seal lishing during the four months of winter and spring, in which it was conceded by the regulatiou previously adopted, ^ould be sufliciently compensated by the addition of the short season formed of the three last weeks of the month of July, he declined to assume any responsibility in regard to this, and abstained from voting for the })r()posed amendment. Lord Haiinen abstained for the same reasons as Sir John Thompson. Tiie otiier arbitrators maintained their objections against any pelagic sealing during the month of July. In conse(|uence the anuMidment was not adopted. Lord Ilannen asked that the extent of waters in which fur-seal fishing would be forV)idden each year during the close season, limited to the south by the tliirty-tifth degree of north latitude, be likewise limited to the west by the adoption of a boundary line, in default of which Kussia and Japan would be called upon to benefit gratuitously of the herd of seals frequenting their waters, by the prohibition im])osed upon the sub- jects ami citizens of Great Britain and of the United States. He moved in consequence to insert in Article 2, after the words: North of the tliirty-fifth degree of north latitude^ the words : and, eastirard of the one h^mdred and eightieth degree of longliudefrom Greenicieh till it strikes the water boundary described in Article I of the treaty of 1867 hetn-een the United States and Russia, and following that line up to Bering Straits. Baron de Courcel staled that if the authoi-s of the draft had abstained from indicating a western boundary as claimed by Loi'd Haunen, they PKOTOCOLS. 65 had Ro acted out of rog^ard for liussia and Japan, powers not repre- sented before the Tribunal of Arbitration, and toward the waters of whom it appeared not equitable to drive back the Englisli and Ameri- can pelagic searlers during the whole time of the close season. Never- theless, as far as he Avas coni'erned he did not desire to do anything which might be prejudicial to the position of Great Britain or of the LTnited States in the negotiation which the Governments of these two countries might engage ultimately with Eussia and Japan. In conse- quence he accejited the amendment proposed by Lord llannen. This amendment was unanimously agreed to. The whole of article 2 of tlie draft, modified and com])leted by the two amendments which had been made to it, was voted affimatiNcly by the Baron de Courcel, Lord lianncn, Sir Jolni Thompson, Marquis Vis- con ti Veuosta, and JMr.Gregers Gram. Mr. Justice Harlan and Senator Moi'gan 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 woi-ds: Ciiiiocs or small boats propcUcd icholly J>y oars, the follov.ing words were substituted: Canoes or uiulcclcd boats, propelled by paddles, oars, or sails, as are in eommon use as Jlsliimj boats. Tliis 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 aslced that the two phrases composing it bo considered and voted upon separately. The first phrase, worS'e^f. This provision was objected to by Sir John Tiiompson, who opposed the iH'ohibition of shotguns in Bering's Sea or elsewhere; it was adopted by a majority of the arbitrators composed of Baron de Coui- cel. Lord Haiinen, Marquis Visconti Venosta, and Mr. Gram. Mr. Justice Harlan and Senator Morgan abstained from voting, olijectiug to the use of shotguns at all or in any of tlie waters traversed by these fur-seals. The Tribunal decided that, in order to avoid a i)ossible ambiguity, article <> would be completed by tlie addition of the foHowing words, to be inserted at the end of the second phrase: during the season iche7i it may he lawfully carried on. Article 6 as a wdiole Avas vote4 for by a majority formed of Baron dp B s-~yoL I— § 66 PROTOCOLS. Courcel, Lord Hiinneii, Marquis Yiscoiiti Venosta, mid Mr. Grogers Grain. Mr. Justice narlaii, Senator Morgan, and Sir Jolm 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 movofl to strike out the whole of the said article. Tliis motion was negatived, Mr. Justice Harlan and Sen- ator 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 tlie preceding articles sliall not npply 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 trans]>orted 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 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 territorial waters under contract for the delivery of the skins to any person. This exemption sliall not be construed to affect the municipal law of either conn- try, 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 word- ing of article 8 the text submitted by Mr. Justice Harlan. Sir John Thom])son moved to strike out of that text the words: irith spears or harpoons only. This suppression was voted by a. majority composed of Baron de Courcel, Lord Haiinen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan and Senator Morgan voted against the sup])res- sion asked for, because they had the strongest objections to the use ol tirearins by the Indians at any time or in any waters. Sir John Tliompson moved to substitute for the words: by paddles or oars, the words: by paddles., oars, or sails. The proposed amendment Mas adopted by the Tribunal, Mr. Justice Harlan and Senator Morgan voting in the negative. Sir John Thompson projiosed to substitute for the words: manned by not more than two persons each, the words: nuorned by not more than Jive persons each. This amendment was voted by a majority formed of Baron de Courcel, Lord Haunen, 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 couipromise to substitute for the words five persons^ the words three persons. This modification, opposed by Sir John Thoiiii)Son, was negatived by the same majority which had voted tlie amendment. Sir John Thompson moved to substitute for the words: in the way anciently practiced, the words: in the way hitherto practleed. This amendment was opposed by Mr. Justice Harlan and Senator Morgan, and was voted by a majority formed by all the other arbitrators. vSir John Thompson moved to add to the text before the Tribunal a paragraph worded as follows: Xothing herein eontainedis intended to interfere with the employment of Indians, as hunters, or otherwise, in connection 7vith fur- sealing vessels as heretofore. This addition was unanimously adopted. Senator Morgan proposed to add at the end of the secoiul paragraph of article 8, atter the words: or the waters of the Aleutian Passes, the following words: Nor shall it be operative in favor of such Indians prior to the 1st January, 1895. This proposition, supported by Senator IVForgan and Mr. Justice Har- lan, was ne^'atived 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 acfually being considered by the arbitrators the text which appeared as article C 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, and 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 api)ear in the regulations ])repared in conformity with Article Vll of the treaty of h'ebrnary 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, JMarquis 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 regulatioiis were adopted, and the Tribunal decided to incorporate the text in the award, with the follow- ing statement preceding it: 68 ^ PROTOCOLS. And wlieriMis the aforesaid detcriniuation of tlie forcffoiiiif (|ne.stioiis as to the exclusive^ jiii'isdiction of tlie United States mentioned in Article VI leaves the sub- ject in such a posilion lliat tiie concnrrence ol'(!reiit ;'ritain is necessary to the estahiislimcnt of rei;ulations I'or tlie proper protection and preservation of the fnr- seal in or habitually resorting to the Hering Sea, the 'I'libnnal having decidetl by a majority as to each arti'-le of tlic I'ollowing regulations, Ave, the said Baron de Conrcel, Lord ii.iiinen. Mai(|ui.s V'iscouti Venosta, and Mr. Gregers Gram, assenting to the Avhole of tlie nine articles of the following regulations, and being a majority of the said arbitrators, do decide and Tleternnne in the mode provided by the treaty, that the following concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, aunst loth, at 10 a. m., Avith rdosed doors, for the signature of the award and the dedarations, and innnedintely thereafter, in public nieetnig, for the delivery of the award and the declarations to the agents of the two Governments. Done at Paris, the 11th of August, 1S03, and signed: The Frc^iiiUut: AlPH. DE CoUKOEL. TheStcreiory: A. ImEEHT. Translation certiiied to be accurate: A. Bailly-Bi.anchaed, ) H. CUNYNGHAME, i Co- Secretaries, PROTOCOL LV. ]VrEETING OF TUESDAY, ATIGUST 15, 1893. The Tribunal assembled, with closed doors, at 10 a. m., all the arbi- trators being ]>resent. The seven arbitrators signed the final award of the Tribunal, in trip- licate copies, on i)archment, one of these copies being ior each of the par- ties, in conformity with the directions of the treaty, and the third, by virtue of a previous decision of the Tribunal, to be ])reserved in the archives of the arbitration confided to the safekeeping of the French Government. The original text was a'ccomiianied 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 ami certified the English version thereof to be true and iiccurate. Lord Hannen and Sir John Thompson, while signing, stated in writing that they aj)i)roved only Declarations I and III. The arbitrators then considered a re(]uest which had Ix^en trans- mitted to them by the agents of the Llnited State^s and of Great Britain, to settle the allowances which it would be proper to make to the secretaries who had assisteermitted to use a word which his ancestors emx)loyed when they sung the lay of their great Em]>eror, aiid to say to :ill of you: Gentlemen, may you retaiu a kind remembrance of sweet France! Loid Ilaiiuen, tlion addressing the president, said: Mr. de Courcel, on behalf of your late colleagues, I have to express my great regret that the absence of the President of the French Republic and Mr. Devjdle from Paris prevents our waiting upon them before leaving this city w'here we have been so kindly treated. We must therefore beg you, ay the French member of the late Tribunal of Arbitration, to convey to the President and to the French Govern- ment the expression of our sentiments of iiroiound gratitude for the gracious recep- tion and generous hospitality which they have extended to us. Our thanks are specially due to Mr. Develle, who, so much to his own inconvenience, has provided us in thisi)alace with so splendid a domicile, and we offer liim our apologies for having so long, though involuntarily, trespassed on his kindness. And now, Mr. de Courcel, I have to discharge a duty Avhicli gives me peculiar satisfaction. I have to express to you our high appreciation of the manner in which you have pi'tisided over our deliberations. The public has had the opportunity of witnessing the sagacity, the learning, and the courtesy with which you have guided the ]iroceedings during the arguments. Your colleagues only can know how greatly those qualities have assisted us in our private conferences. Let me add, that our intimate relations Avith you have taught us to regard yon with the warmest esteeni and att'cction. I'crmit me to say^ that you have won in each of us an attached friend. I must not ('(mclude without an allusion to the remarkable occasion which has brought ns together. AVe trust that the result will prove that we have taken part in a great historical transaction fruitful ia 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. Few 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 the time when it will be the rule and not the exception. One of our poets has said that every prayer for universal peace avails to expedite its coming. We have done more than join in such a sni»plication ; 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 th(!se two kindred nations, that peace may ibrever prevail between them. I bid you heartily iarewell. Seuator Morgan then addressed tlie l'(»lh)\\iiig remarks to ex])resshis vshare in the sentiments which Lord Uanneii had Jnst interpreted: The arbitrators on the part of the United States most sinceiely unite in the very hapi)y expressions that have fallen from Lord Ilanueu, of grateful api)reciation of PROTOCOLS. 73 the si)leuclid. Lospitality of the FiiMicli (iuveriiment and people. We have been their guests for uiauy montlis, aud have been uiulei" the shelter of their laws and iu 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 iiiwrow view of the results of this arbitration, the United States would have a regret that the important judicial questions we have been con- sidering were not stated in a broader form iu the treaty between these great Powers. The opportunity was offered when the treaty was iu process of foiniation to have presented iu a more e(|uitab]e Hglit the rights of the nations to whose islands and coasts the fur-seals habitually resort for places of abode and shelter in the sunuuer season; to control and jirotect them uuder tlie legal rules and intendiuents tiiat ajjjily universally to the animals that are classed as domestic, or domesticated ani- nuils, because of their usefulness to men. My colleague aud I concurred iu the view that the treaty presented this subject for consid(!ration in its broadest aspect. Our honorable colleagues, liowever, did not so construe the scope of the duty prescril)ed to the Tribunal by the treaty. They considered that these questions of the right of i)roperty and jirotection in resjjcct to the fur-seals were to be decided upon tlie existing state of the law, aud, liuding no existing precedent iu the international law, they did not feel warranted in creating one. As the rights claimed by tlic United States could only be supported by interna- tional law, iu their estinuition, 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 (ilovernmeuts, regulations for the preservation and protection of the fur-seals, to which the treaty relates. In tliis new and unti-ied lield of experiment, much embarrassment was found in conllicting interests of an important character, and yet nmre difficulty iu the uncertainty as to the facts ui)on which regulations could be based that would be at once just to those interests, and would iitford to the fur-seals proper preservation and protecti(Ui. The United States will fully understand aud appreciate those difhculties, and will accept the tiual award as the best possible result, uuder existing conditions. A veiy 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 tirearms iu ])elagic sealing is an earnest and wise guaranty that those common interests may bo 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 United States that they can bear the highest testimony to the ability, integrity, jiatience, industry, and judicial impartiality of their colleagues in this Tribunal. Our labors have been arduous aud protracted, but have been attended with uni- form courtesy and good feeling on the ]iart of all the nuMubers of tlui Tril)unal. We hope for still broader and l)etter results from the foundations we have laid iu this new lield of international agreements. To the president of the Tribunal we owe a debt that we gratefully acknowledge, that he has so patiently and with such disi iuguislied ability discharged the diflicult duties of hia position. The agents of the respective Goveruuients have jirepan^l, at great ex])ense of labor and with unusual skill aud industry, every available fact that would throw any light upon the luatters in controversy, aud 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 reach conclusions that are just and will be salutary, we close our labors in the hope that they will be acceptable to all nations. 74 PROTOCOLS. The j)resident thereupon said that he cheerfully accepted the mission to transmit to the President of the French Eepublic 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 exi^ressed 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 Afjent for Great Britain: ClIARLES H. TUPPER. The Secretary : A. ImbeRT. Translation certified to be accurate: A. BAILLY-BLANCHARD, ) Co-Seeretaries. H. OTTTVYNftnAME. ) H. CUNYNGHAME, AWARD OK THE TRIBUNAJ. OF ARBITRATION CONSTITUTED UNDER THl^ TREATY CONCLUDED AT WASHINGTON, THE 29TH OF FEBRUAEY, 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 tlie United States of America and (xreat Britain, signed at Wasbiiigton, February liU, 180li, the ratifica- tions of which by the Governments of the two countries were exchanged at London on May tlie Ttli, 1S92, it was, amongst other things, agreed and (•oncluded tliat the questions whicli had arisen betweeiL the Govern- ment of the United States of America and the Government of Her Britannic Majesty, concerning the jurisdictional riglits of the United States in the waters of Bering's Sea, and concerning also the preser- vation 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 iiabitually resorting to the said waters, should be submitted to a Tribunal of Arbitration, to be composed of sevea Arbitrators, who sliould 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 1^'iench Kepnblic 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 refpiested 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 Couuter-Cases inentioiied in Artii^tle IV, and slionld proceed impartially and carefully to examine aud decide tbe questions wbicb had been or should be laid before them as in tbe said Treaty provided on tbe part of tbe Governments of the United States and of Iler Britannic Majesty, res])ectively, and that all questions considered by the Tribunal, including- the linal decision, should be determined by a majority of all the Arbitrators; And whereas by Article VI of the said Treaty, it was further pro- vided as follows: In deciding tlio matters submitted to tbe said Arbitrators, it is agreed that tlio following live points shall be submitted to tliem, in order that their award shall embrace a distinct decision upon each of said live points, to wit: 1. What exclusive jvirisdictiou 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 ITuited States f 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britaiu? 3. Was the body of water uow known as the Bering's Sea included in the phrase Pacific Ocean, as used in the Treaty of 1825 between Great Britaiu and Russia; aud what rights, if any, iu 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 aud as to the seal tisheries iu Bering's Seaeastof the water boundary, in the Treaty between the tluited States aud Russia of the 30th of March, 1867, pass uuim]iaired to the Uuited States uuder that Treaty? 5. Has the Uuited States any right, aud if so, what right of protection or projierty in the fur-seals frequenting the islands of the Uuited Sta' es in Bering Sea when such seals are found outside the ordinary three-mile limif? Aud wiiereas, by Article VII of the said Treaty, it was further agreed as follows : If the determiuation of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such ]iosition that the concurrence of Great Britain is uecessary to the establishment of Regulations for the pro])er ])rotec- tiou aud preservation of the fur-seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent Regulations, outside the juris- dictional limits of the respective Governments, are uecessary, and over what waters such regulations should extend; The High Contracting Parties furthermore agree to cooperate iu securing the adhesion of other Powers to such Regulatious; And whereas, by Article VIII of the said Treaty, alter 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 aud determ.iuation of tbe main questions," the High (lontracting Parties agreed that "either of them might submit to the Arbitrators any (juestion of fact involved in said claims aud ask for a finding thereon, the question of the liability AWARD AND DECLARATIONS. 77 of either Goverinneut upon tlie facts found to be the subject of further neofotiation ;'' And whereas the President of the United States of America named the Honorable John M. Harhm, Justice of the Supreme Court of the United States, and the Honorable John T. Morgan, Senator of tlie United States, to be two of the said Arbitrators, and Her Britannic Majesty named the Eight Honorable Lord Hannen and the Honorable Sir John Thompson, minister of justice and attorney- gen era! for Can- ada, to be two of the said Arbitrators, and His Excellency the Presi- dent of the French Eepnblic named the Baron de Courcel, Senator, Ambassador of France, to be one of the said Arbitrators, and His Mnjesty 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 tlie 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 ha^dng duly met at Paris, proceeded impartially and carefully to exam- ine 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 i)art of the Governments of Her Britannic Majesty and the United States, respectively; Kow 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 fivei)oints 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 John Thompson, Marquis Vis- conti Venosta, and Mr. Gregers Gram, being a majority of the said Arbi- trators, do decide ami 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 negotia- tions 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 can- non shot from shore, and it appears that from that time up to tlie 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 tlie second of the said five points, We, the said Baron de Cour- cel, Mr. Justice Harlau, Lord Hauuen, Siv Joha TUompsou, Marquis 78 AWARD AND DECLARATIONS. Visconti Yenosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine tliat Great Britain did not recog- nize or concede any claim, upon the i^art of Jinssia, to ex(!lusive juris- diction as to the seal fisheries in Bering Sea, outside of ordinary terri- torial 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 jVhrase " racitic Ocean " as used in the Treaty of 1825, between Great Britain and Russia, We,tlie said Arbitra- tors, 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 i)(»int as requires us to decide what rights, if any, in the Bering Sea were held and exclusively exer- cised by Russia after the said Treaty of 1825, We, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Mar- quis 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 fourtli 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 urnler 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 tlie 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 exclusivejurisdiction of the United States mentioned in Arti- cle 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 Reguhitions, 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 tlie said Arbitrators, do decide and determine, in the mode r»rovided by the Treaty, that the following AWARD AND DECLARATIONS. 79 concurrent Kegiilations outside the jurisdictional limits of the respec- tive 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 res[)ectively to kill, capture, or pnrsue, at any time and in any manner whatever, the animals commonly called fur seals, within a zone of sixty miles aroniid the Pribilof Islands, inclusive of the territorial waters. The miles mentioned in the pieceding paragraph are geographical miles of sixty to a degree of latitnde. Article 2. The two Governments shall forbid their citizens and subjects respec- tively to kill, capture, or pursue, in any manner whatever, during the season extending, each year, from the 1st of May to tlie 31st of July, both inclusive, the fur seals on the high sea, in the part of the Pacilic 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 irom Greenwich till it strikes the water boundary described in Article 1 of the Treaty of 1807 between the United States and Eus- sia, and following that line u]) 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 i»ermitted to carry on or take iKirt in fur-seal fishing operations. They will, however, be at lib- erty 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 G. TIio use of nets, flreiirms, and explosives shall be forbidden in the Inr seal iishin^-. Tliis restiiction shall not apply to shotguns when such fishing takes place outside of Bering's Sea, during the season wiien it may be lawiully carried on. Article 7. The two (lovernnients shall take measures to control the fitness of the men authorized to engage in fur seal fishing; tliese men shall have been j^roved tit to haiidh3 with sutlicicnt skill the weapons by means of which this (ishing 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 iStates 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 delivoy of the skins to any person. This exemption shall not be construed to affect the nninicipal law of either country, nor sliall it extend to the waters «f Bering yea or the waters of the Aleutian Passes. Xothing herein contained is intended to interfere with the emi)loy- ment 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 i)reservation of the fur seals shall remain in force untd they have been, in whole or in part, abolished or modified by common agreement between the Governments of the United States and ot Great Britain. The said concurrent regulations shall be submitted every five years to a new examiinition, so as to enable both interested Governments to consider whether, in the light of past experience, there is occasion for any nu)dification thereof. And whereas 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 ns, the said Tribunalj s^ statement of the said facts, as follows, that is to say ; AWARD AND DECLARATIONS. 81 Findings of fact propased hi/ ihv Aijenl of Great Britain and ajreed to as proved hy the Agent for the United ^States, and sn1)iniited to the Tribunal of Arbitration for its consideration. 1. That the several senrches and seizures, whether of ships or goods, and the sev- eral arrests of masters aud crews, respectively nieiitioiied 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 con- tents, or either of them, ami the question as to whether the vessels mentioned in the Schedule to the British Case, or any of them, were wholly or in part the actual prop- erty 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 r-aise 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 Brstish Case; 2. That the seizures aforesaid, with the exception of the " rathfiuder," 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 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 the libels in the other proceedings were in all substantial respects the same: that the alleged acts or offenses for which said several searches aud 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 condenmation, the seizure was adopted by the Gov- ernment 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 and imprisonments were for alleged breaches of the nuinicipal 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, aud 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 L^istrict 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 Sched- ule 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 8 — VOL I (5 82 AWARD AND DECLARATIONS. AxxKX A. Treasury Departmi<:xt, Office of the Secretary, Washington, Jjiril 21, 18S6. Sir: Referring to Departmeut letter of this date, directing yon 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 Revised Statutes, and directed to seize all vessels 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. You will also seize any liquors or fire-arms attempted to be introduced into the country without proper permit, under the provisions of Section l'J55 of the Revised Statutes and the Proclamation of the President dated 4th February, 1870. Respectfully yours, (Signed) C. S. Faihchild, 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 ITonorahle Lafayette Dawson, Judge of said District Court: The libel information of M. D. Call, Attorney for tlie 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, hev tackle, ap})arel, l)oats, cargo, and furniture, and against all persons intervening for their interest therein, in a cause of forfeiture, alleges and informs as follows: That Cliarles A. Abbey, an officer in the Revenue-Marine Service of the United States, and on special duty in the waters of the district of Alaska, heretofore, to wit, on the first day of August, 1886, witliin 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 ou waters navigable from the sea by vessels of 10 or more tons burden, seized the sliip or vessel commonly called a schooner, the Thornton, her tackle, npx)arel, boats, cargo, and furniture, being the property of some person or persons to the said Attorney uuknov/n, 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 Ahisk-a Territory, and in the waters thereof, in violation of Section 1956 of the Revised Statutes of the United States. And the said Attornej- saith that all and singnlnr 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 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 furnitnro, 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 ])rays the usual process and monition of this honor- able Court issue iu this behalf, and that all persons interested in the before- AWARD AND DECLARATIONS. 83 mentioued and described schooner or vessel may be cited in general and special to answer the premises, and all dne proceedings being had, that the said schooner or vessel, her tackle, api)arel, boats, cargo, and furniture may, for the cause aforesaid, and others appearingv be condemned by the definite sentence and decree of this hon- orable Court, as forfeited to the use of the said United States, according to the form of tlie statute of the said United States in such cases made and jn-ovided. (Signed) M. D. Ball, United Stales District Attorne>i for the District of Alaska. Anxex 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 cases of the Carolena, Thorn- ton, end 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. Ill) : Kame of vessel. Date of seizure. Approximate distance from land when seized. United States vessel malving seizure. Carolena Aug. 1,1880 Thornton Ang. 1,1886 Onward Aug. 2,1880 Favourite i Aug. 2.1886 Anna Beck I July 2, 1887 'W. P. Sayward l July 9, 1887 Dolphin I July 12,1887 Grace I July 17,1887 Alfred Adams Ada Triumph Jiianita Pathtinder Triumph Aug. 10, 1887 Aug. 25, 1887 Aug. 4,1887 July 31, 1889 July 29, 1889 July 11, 1889 Black Diamond July 11, 1889 Lil V Aug. 0, 1889 Ariel ! July 30,1880 Kate Aug. 13, 1889 Jtlinnie i July 15,1889 Pathfinder Mar. 27,1890 .J miles Corwiu. 70 miles Corwic. 115 miles Corwiu. Warned by Corwin in about same jjosition as Onward.' 60 miles Rush. 59 miles Eush. 40 miles Rush. 96 miles Rush. 62 miles Eush. 15 miles Bear. Warned by Eush not to enter Bering Sea. 66 miles Eush 50 miles Eush. Ordered out of Bering Sea by Eush. (?) As to position when warned. 35 miles 66 miles Ordered out of Bering Sea bj* Rush. Ditto " 05 miles Seized In Neah Bay (') Rush. Ru.sh. Rush. Corwiu. ('iKeah Bay is in the State of Wa.shington, and the Pathfinder was seized there on charges made against her in the Bering Sea in the previous year. She w.is releisod two days later. And whereas the Goveniineiit of Her Britamiic Majesty did ask the said Arbitrators to find the said facts as set forth in' the said state- ment, and whereas the Agent and Counsel for tlie United States Gov- ernment thereupon in our presence informed us that tlie 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 Arbi- trators, 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 and 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 cle Coiircel, Lord Hiiiinen, Mr. Justice Harlan, Sir John Thompson, Senator Morgan, the Marquis Visconti Venosta, and Mr. Gregers Gram, the respective minorities not withdrawing their votes, do dechire 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 a'Ccurate. Alph. de Courcel. John M. Harlan. John T. Morgan. Hannen. JnO. S. D. THOMPSOfj. Visconti Venosta. G. Gram. DECLARATIONS MADE BY THE TRIBUNAL OF ARBITRATION AND REFERRED TO THE GOVERNMENTS OF THE UNITED STATES AND GEEAT BRITAIN FOR THEIR CONSIDERATION. The Arbitrators declare that the concurrent Eegulations, as deter- miued upon by the Tribunal of Arbitration, by virtue of Article VII of the Treaty of the 20th of February, 1892, being applicable to the high sea only, should, in their opinion, be supplemented by other Eegulations 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 lit to recommend both Govern- ments 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. Ill The Arbitrators declare, moreover, that, in their opinion, the carrying out of tlie 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. queuce, leave it to the two Powers to decide upon the means for giving effect to the Eeguhations determined upon by it. We do certify this Englisli version to be true and accurate, and have signed the same at Paris this 15th day of August, 1803. Alph de Couecel. John M. Harlan. 1 approve Declarations I and III • Hannen. I approve Declarations I and III Jno. S. D. Thompson. John T. Morgan. ViscoNTi Venosta. G. Gram. BERING SEA TRimiNAL OF ARBITRATION. OPINION OF MR. JUSTICE HARLAN CONFERENCE IN PARIS OF TKE BERING SEA TRIBUNAL OF ARBITRATION, CONSITITJ FED BY THE TREATY OF FEBRUARY 29, 1892, BETWEEN HER BRITANMC MAJESTY AND THE UNITED STATES OF AMERICA, AND COMPOSED OF THE FOLLOWING MEMBERS: BARON DE COURCEL, Benalur and Ainba!ort of motion that Tribiiual tirst determine its comiietency or powers under the Treaty in res})ect to certain nnittcr.s 5 2. Upon the (j^uestion of the coiupeteney of the Tribunal to prescribe regula- tions covering the waters of tlu3 North Paciiic Ocean, and wiiicli would prohibit pelagic sealing entirely 8 PART II. THE MERITS OF THE VARIOUS (JIIESTIOXS SUBMITTEI) TO THE TRIUIINAL FOR DETEU- MIXATION. I'age. 1. General statement of the facts out of w liich tlic present contioversy between the two nations arose, and the history of the negotiations resulting in the Treaty of February 20, 1892 36 2. Jurisdiction and rights asserted and exercised bj^ Russia in l>(!ring Sea, and in respect to the seal fisheries in that sea, prior to the cession of 1867 of Alaska to the United States. P^ffect of the Treaty concluded iu 1825 between Russia and Great Britain. The rights that passed to the United States by the Treaty of Cession of 18G7 58 3. The right of property asserted by the United States iu the Pribilof herd of seals, and its riglit, Avhefcher 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. Coucurrent regulations 205 3 [After the argnracuts of counsel were conclndefl, the Ti'ihnnal of Arhitration wont into Coiifereuco to consider anil determine tlie various matters submitted to it. All the questions discussed were examined and fully coiisidcri-d by the Arbitrators, and in order that they miglit liave an opportunity to put upon record in the form of written opinions ("if they sd desircul), the views eKpressed bj^tiicm in coufereuce, the Tribunal, at the close of its deliberations, adopted and embodied in the Protocol of August 14, 1893, the following resolution: "The right is reserved to each Arbitrator to file with the secretary of this Tribunal, at anytime after the adjournment, and before the lirst day of January, 1894, an opinion or opinions upon tlie 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 OF THE TRIBUNAL OF ARBITRATION. 1. RGITIARK!^ IIV SUPPORT OF ITBOTBOiV TBIAT TIfflE TRDB51J1VAI. FIR.SIT DETEItitBIXE ITS COMPB^TEXi; V OBfi PO^VKRS, UrVBtER THE TREATV, IIV RESPECT TO CERTAIIV MATTERS. (These remarks were made at the first meeting of the Arbitrators after counsel had concluded their arguments.) Mr. President: It Iris been suggested that tlie Arbitrators have a full iuterchange of views touchiug 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 in- terchange 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 sub- mitted 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 in- volved in the following questions: 1. Is it competent, under the treaty, for this Tribunal to prescribe regulations applicable to such parts of the IsTorth Pacific Ocean, outside 6 of tlie jurisdictional limits of the two governments^ as are traversed by the seals frequeiitiag the Pribilof Islands, if, upon the facts, regula- tions of that character are necessary for the proper protection and pres- ervation of the fur seal in, or habitually resorting to, Bering Sea"? 2. Is it competent, under the treaty, for this Tribunal to jn'escribe reguhitions for a closed season covering sucli 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 all hunting of said seals in such waters shall be forbidden, provided the facts show that regulations of that character are necessary for the proper i)rotection 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 proi)er 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 out- side 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 pres- ervation 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 c(mferred; and that a refusal to exert such power, if its exercise be fcjand, under the evidence, necessary to the preservation of this race, will be a refusal to execute the treaty, and, therefore, Avould defeat one of its principal objects. For one. I wish to know, before any interchange of views occurs between Arbitrators in resi)cct 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 l)osition that it can be said that his views as to the competency of theTribunal were withheld until the majority had expressed opinions in respect as well to the merits of the several questions of right arising under the treaty, as to the necessity of regulations for the proper protection and preservation of these seals. If, however, it be the pleasure of Arbitrators to. interchange views upon the merits of all the questions before us, not involving the jurisdic- tion of the Tribunal, before any vote is taken, and if they order my motion to lie upon the table for the present, I will acquiesce, if it be understood that the first recorded vote shall be upon the points em- bodied in that motion. Let me say in this connection that, the arguments having been con- cluded, I am prepared to indicate to any Arbitrator, whenever desired by him, the conclusion reached by me touching any question before us, whether relating to the merits of the case or to the competency of the tribunal. Any such expression of views must, of course, be subject to the possibility of their being changed or modified as the result of our discussions in conference. If there are other questions of the juris- diction 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 comj)etency or i^owers, I shall deem it my duty, so far as my action can have effect, to put his mind at rest in respect to that matter. But, Mr. President, I can not stop here without running the risk of being charged with concealing some things that are on my mind and which Arbitrators are entitled to know before acting upon this motion. My conviction is absolute that the treaty as interpreted by the British Government and its counsel, in respect to the powers of the Tribunal, is not the treaty I was asked to aid in executing. It is not the treaty Great Britain would have asked the United States to sign. It is not the treaty which the President of the United States would have ap- proved. It is not the treaty whicb a single member of the Senate of the United States would have sustained by his vote. So strong is my conviction upon this subject that if this Tribunal does not conceive 8 itself to liave the power, niider 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 suppleinentary convention investing the Tribunal with full power to accomplish the object wliich, 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 1 do not aslv 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 hmnd that regula- tions which in terms or by necessary operation prohibit or put an end altogether to i)elagic 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 (juestion of the com])etency of the Tribunal until I shall have ascertained what your views are on the several matters submitted for determination, and then bring up, or forbear to bring up, this ques- tion of jurisdiction, as I may agree or disagree with the views you express on the merits. IJPOIV TBIK OJJESTIOIV OF THE <;OMPETEIVCY OF THE Tr^^SBIINAI^ TO I»UI<:«J'KIBE RE«lJI-AT«OIV» CO VEISIIVO THE ^VATEBIW OF TIBE NOKTai FACBFK; OIIEAIV, AIVD WHICIH WOUIiUPROHIBtIT I*EBiA44B€ SEAI^BIVC: EIVTBISEBiV. (Tho Trilmnal having on a subsequent day of its ssssions voted to consider the above motion, tbc 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 20, 1892,* as questions " concerning the jnrisdic- * TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN CON- CLUDED FEBRUARY 29, 1892. The United States of America ami Hit 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 tlie jurisdictionnl riglits of the United States in tlie waters of Bering's Sea, and con- cerning also the preservation of the fur se;il 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 liabitually resorting to, the said waters, have resolved to submit to arbitration the questions involved, and to the end of conclndiug a conven- tion for that pur])ose have ajjpninted as their respective rieuipotentiaries : The President of the United States of America, James G. Blaine, Secretary of State of the United States; and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir .Julian Pauncefote, G. c. M. G., k. c. r., Iler Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States; Who, after having commnuic:ited to each other their resi^ective full poAvers which were found to be in due and proper form, have agreed to and concluded the follow- ing articles: Articlk I. The questions which have arisen between the Government of the United States and the Government of ITer Britannic Majesty concerning the juris- dictional 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 riglits of tiie 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 f(dlowing nuinner, that is to say: Two shall be named by the President of the United States; two shall be named by her Britannic Majesty; His Excellency the President of the French Republic shall be jointly requested by the high contracting parties to name one; His Majesty, the King of Italy, shall be so requested to name one; and His Majesty, the King of Sweden and Norway, shall be requested to name one. The seven arbitrators to be so named shall be jurists of distinguished reputa- tion in their respective countries; and the selecting poAvcrs shall be requested to choose, if possible, jurists .who are acquainted with tlie English language. In case of death, absence, or incapacity to serve of any or either of the said arbitrators, or in the event of any or cither of the said arbitrators omitting or declining or ceasing to act as such, the President of the Uni ted States, or Her Britan- nic Majesty, or His Excellency, the President of the French Kepublic, or His Majesty the King of Italy, or His Majesty, the King of Sweden and Norway, as the case may be, shall name, or shall be requested to name forthwith another person to act as 10 tioiial riglits of the United States in tlie waters of Bering Sea, and concerning also tlie preservation of the fur seal in, or habitually resort- ing to, the said Sea, and the rights of the citizens and subjects of cither country as regards the taking of fur seal in, or habitually resorting to, the said waters." Article VI i>rovides that, ^' in deciding the matters submitted to the arbitrators," certain points, five in number, shall be sumbitted to them, in order that their award may embrace a distinct decision upon each point. One of those i)oints is embodied in the following question : ail)it.rointed by the respective Govern- ments shall be laid before them, with such other evidence as eitlier Governn^.cut may submit. • The High Contracting Parties furthermore agree to coiiperate in securing tlie adhe- sion of other Powers to such regulations. Ar.r. VIII. Tlie High Contracting Parties liaxing found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it ; and being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, do agree that either party may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation. Art. IX. The High Contracting Parties have agreed to appoint two commissioners on the part of each Government to make the joint investigation and report contem- plated in the preceding Article vii, and to include the terms of the said agree- ment in the convention, to the end that the joint and several reports and recom- mendations of said commissioners may be in due foi-m submitted to the arbitrators, should the contingency' therefor arise, the said agreement is accordingly herein included as follows; Each Government shall appoint two commissioners to investigate conjointly with the commissioners of the other Government all the facts having relation to seal life in Bering Sea, and the measures necessary for its proper protection and preserva- tion. The four commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments, and they shall also report, either jointly or 13 as a full, perfect, aud final settlement of all the questions referred to tlie 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 Bering Sea, as well as their willingness to unite in the enforcement against their respective citizens or subjects of all measures found necessary to prevent the extermination of that race of animals. Tlie record before us furnishes conclusive evidence of these facts. As early as November 12, 1887, Mr. Phelps, United States Minister severally, to each Govei-uuient on any poiuts upon which they may be unable to agree. These reports shall not be made public until they shall be submitted to the arbi- trators, or it shall appear that the contingency of their being used by the arbitra- tors can not arise. AitT. X. Each Government shall pay the expenses of its members of the joint commission in the investigation referred to in the preceding article. AuT. XI. The decisions of the tribunal shall, if possible, be made witliin three months from the close of the argument on both sides. It sh.all be made in writing and dated, and shall bo signed by the arbitrators who may assent to it. Tile decision shall be in duplicate, one copy whereof shall be delivered to the agent of tlie United States for his Govcrumeiit, aud the other copy shall be delivered to tlie agent of Great Britain for his Government. AitT. XII. P^acli Government shall pay its own agents and provide for the proper remuneration of the counsel employed by it, and of the arbitrators appointed by it, and ibr the expense of preparing and submitting its case to the tribunal. All other (expenses connected with the arbitration shall be defrayed by the two Govern- ment iiie(]ual moieties. Art. XIII. Tlie 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 pro- ceedings of the tribunal of arbitration, as a full, perfect, and final settlement of all the questions referred to the arbitrators. Art. XV. The present treaty shall be duly ratified by the President of the United ■States of America, by and with the advice and consent of the Senate thereof, and by Her Britannic Majesty ; and the ratification shall be exchanged either at Wash- ington 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. Jamks G. Blaink. [skal.] JuLiAX Pauncefotb. [seal.] 14 at London, had an interview with the Marquis of Salisbury, British Secretary of State for Foreii;n Affairs, iii which tlie former [)ro[)osed, on the part of the Government of the United States, that by mutual agreement of the two Governments a code of regulations be adoi)ted for the preservation of the seals in Bering Sea from destruction at im- proper times and by improper means by tlie citizens of either country — swch agreement- to be entirely irrespective of any questions of conflict- ing 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, A2)p. 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, 18SS, suggesting that the only way to preveut the destruction of the seals appeared to be for the United States, Great Britain, and other inter- ested powers to take concerted action restraining their citizens or sub- jects from killing them with firearms, or other destructive weapons, '^ north of 50° of north latitude, and between 160° of longitude west and L70'^' of longitude east from Greenwich, during the period intervening between April 1.") and November 1. To prevent the killing within a marine belt of 40 or 50 miles from the islands during that i^eriod would be ineffectual as a preservative measure. This would clearly be so dur- ing 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." In the s'ame letter Mr. Bayard, referring to the threatened extermi- nation 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 desti'uction 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 i)reservation. * * * 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 durinfj the past year, been arrested and ten American vessels seized for kdling fnr seals in Bering- Sea. Enuland, however, has an especially great interest in this matter in addition to that which she must feel in preventing the extermination of an animal wliicli con- tributed so mucli to the gain and comfort of licr i)eo[)le. Kearly all undressed fur seal skins are sent to London, wliere they are dressed land dyed for the market and where many of tliem 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. r, -p. 175. A counter proposition was made by the Marquis of Salisbury to the effect that " with a view to meeting the Eussian 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 ]!^ovember 1 — might inter- fere with the trade longer than absolutely necessary for the protection of the seals, and he suggested October 1, instead of a month later, as the termination of the period of seal protection." U. jS. Case, Vol.I^ A2)p., 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 iireliminary discussion it was decided, provisionally, in order to furnish a basis for negotiation, and without definitely pledging our Governments, that the sjjace to be covered by the proposed convention should be the sea hetween 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. Tlie United States Charge 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 marliet, it was a common practice for those engaged in the trade to shoot all seals they might meet in the open sea, and that of these a great number sank so that their skins could not be recovered." A similar letter was sent to Sir E. Morier, British Ambassador at St. Petersburg. British Case, App., Vol. Ill, p. 196; U. S. Case, Ajjp., Vol. I, p. 238. The close time, thus provisionally decided upon, covered, as will be seen, not only Bering Sea, but the entire North Pacific Ocean between America and Eussia, north of the forty-seventh degree of latitude. Mr. Bayard, writing to Mr. White, the United States Charge d' Affaires at London, under date of May 1, 1888, said: "As you have already beeu instructed, the Department does not object to the inclu- siou of the Sea of Okhotsk, or so much of it as may be necessary, in the arrangement for the protection of the seals. Nor is itthouglit 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 requi- site 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 1 am now advised, the 1st of November would be safer. U. 8. Case, App., Vol. I, p. 180. In the course of a friendly discussion, in November, 1889, between Mr. Blaine, the American Secretary of State, and Sir Julian Paunce- 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 hist stronghold. The United States had bought the islands in that se.a to which these crea- tures periodically resort to lay their young, and now Canadian fisher- men step in and slaughter the seals on their passage to the islands, without taking heed of the warnings given by Canadian officials them- selves, that the result must inevitably be the extermination of the species. This was an abuse, not only reprehensible in itself and opposed to the interests of mankind, but an infraction of the rights of the United States. It indicted, moreover, a serious injury on a neigh- boring and friendly State, by depriving it of the fruits of an industry on which vast sums of money had beeu 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 tlie 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 disapx^ear in an agreement for a close season, which ho believes to be urgently called tor in the conunon 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 sxjecies, 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 evi- dence. Her Majesty's Government should come to the conclusion that a 'close season' is really necessary, and if an agreement should be arrived at on the subject, all differences on questions of legal rights would qiso facto disappear." British Case, -Aj;j>,, Vol. Ill, py. 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 com- mencement, that the sole object of the negotiation is the lyreservation of the fur seal species for the benefit of manMnd, and that no consid- erations of advantage to any particular nation, or of benefit to any pri- vate interest, should enter into the question." U. 8. Case, App., Vol.1, p. 201, 205. Under date of June '6, 1890, Sir Julian, writing to Mr. Blaine, observed : "Her Majesty's Grovernment have always been willing, without i)ledging themselves to details on the questions of area and date, to carry on negotiations, hoping thereby to come to some arrange- ment for such a close season as is necessary in order to preserve the seal species from extinction, but the x^ro visions of such an arrangement would always require legislative sanction so that the measures thereby determined may be enforced." U. S. 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 cox>y of the above letter of Ax)ril 10, 1888, addressed to the British rex^resentatives 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 ivhatever close time in ivhatever localities is necessary for the preservation of the fur seal species." British Case, App., Vol. Ill, p. 492; U. S. Case, App., Vol. I, p. 237, 1X492 2 18 In Lis letter to Sir Julian Panncefote of December 17, 1890, Mr. Blaine said: "The United States, in protecting the seal fisheries, will not inter- fere 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 President, those issues are: "First. What exclusive jurisdiction in the sea now known as the Bering' Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior and ux) to the time of the cession of Alaska to the United States? "Second. How far were these claims of jurisdiction as to the seal fish- eries recognized and conceded by Great Britain? "Third. Was the body of water now known as the Bering Sea in- cluded 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 treatj"^ between the United States and Russia of March 30, 1807, pass unimpaired to the United States under that treaty? "Fifth. What arenowthe rights of the United States as to the fur seal fisheiies in the waters of the Bering Sea outside of the ordinary terri- torial limits, whether such rights grow out of the cession by Russia of any special rights or jurisdiction held by her in such fisheries or in the waters of Bering Sea, or out of the owncrsliip of the breeding islands and the habits of the seal in resorting thither and rearing their young thereon and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the Ujiited 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 neces- sary that the United States should exercise an exclusive jurisdiction iu 19 order to protect tlie seal for tlie time living' upon the islands of the United States and feeding therefrom. Second, whether a closed season (dnring 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 vaUiable and imiwrtant 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." U. S. Case, A2rp., Vol. J, 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. Bhxiue, and, after criticising the third and fifth, proceeded: "The sixth question, which deals with the issues that will arise in case the controversy should be decided in favor of Great Britain, would perhaps more fitly form the subject of a separate reference. Her Majesty's Government have no objection to refer the general question of a close time to arbitration, or to ascertain by that means how far the enactment of such a provision is necessary for the pres- ervation of the seal species; but any such reference ought not to contain words ai)pearing to attribute special and abnormal rights in the matter to the United States." British Case, App., Vol III, pt. 2, p. 89 ; JJ. 8. Case, App., Vol!l,p. 204. Replying, under date of April 14, 1891, Mr. Blaine observed that although Lord Salisbury suggested a different mode of i)rocedure from that embodied in the sixth question, the President did not understand him as objecting to the question. He restated all the questions, leav- ing 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 incUnled in the phrase 'Pacific Ocean' as used in the treaty of 1825 between Great Britain and liussia, and what rights, if any, in the Bering Sea were held and exclusively exercised by Eussia after said Treaty"? "Fifth. Has the United States any right, and if so what rigiit, of pro- tection or i)roperty 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 *?" U. 8. Case, App., Vol. I, p. 295. At this period of the negotiations a correspondence intervened with respect to a modus vivouli 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, 1801, 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 Govern- ment can not give their assent to the sixth question formulated in that nete. In lieu thereof they propose the appointment of a commission to consist of four experts, of whom two shall be nominated by each Gov- ernment, and a chairman Avho shall be nominated by tLe 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 ex- termination, what international arrangements, if any, are necessary between Great Britain and the United States and Eussia or any other power V" U. S. Case, Apj)., 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 vivcndi for 1891. The terms of that modus vivcndi, 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 nomi- nated by the ^Arbitrators, if appointed, and if not, by the aforesaid commission, shall examine and report on the following question : ' What international arrangements, if any, between Great Britain and the United States and Eussia or any otlier power are necessary for the pur- pose of preserving tlie fur seal race in the Northern Pacific Ocean from extermination'?'" U. S. Case, Airp., Vol. I, p. 311. It thus appears that the British Government proposed, in connec- tion with the modus vivendi for 1891, to ascertain, by means of experts representing the two Governments, what international arrangements were necessary "for the inirpose of preserving the fur seal race in the Northern Faeljio 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, exj)ressing the regret of the Marquis of Salisbury that his proposed modifications had not been accepted. But he observed: "Nevertheless, iu view of the urgeucy 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, ]irovided the ques- tion of a joint commission be not left in doubt, and that your Govern- ment 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 iri the Northern Pacific Occany TJ. 8. Case, ^PP-j ^ol. 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 t\\Q, fact that fnll 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 ivaters referred to, such an agreement to be signed simultaneously with the convention for arbitration, and to be without prejudice to tlie questions to be submitted to the arbitrators. A full reply to your note of June 3 relating to the terms of arbitration will not be long delayed." U. S. Case, App., Vol. I, pp. 315,316. Under date of June 13, 1801, 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 convoying the assent of your Gov- ernment to the appointment, in connection with Her Majesty's Gov- ernment, of a joint commission for the purpose mentioned in my note to you of the same date, such agreement to be signed simultaneoasly 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 woukl, 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 liave this day received a telegraphic reply from Lord Salisbury in which, while conveying to me authority to sign the pro- I)osed 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 tliat understanding, therefore, I shall be prepared to attend at the State Department for tlie purpose of signing the agreemeut at such time as you may be good enough to appoint." TJ. S. Case, Vol. J, App.^ p. 316. On the same day Mr. Wharton Avrote to Sir Jujian 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 differ- ence 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 agreenjent has finally been reached for the i^ending season; and 1 beg to say that if you will call at the Department at 10 o'clock Monday next, I will be glad to put into writing and give formal attestation to the modus Vivendi which has been agreed upon." U. S. Case, App.^ Vol, I, p. 316. Under the assurance thus exacted by and given to the British Gov- ernment 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 conmiunica- tion to Sir Julian Pauncefote, in which, after referring to the agree- ment of the parties in respect to the first five questions and to the objection that Lord Salisbury liad made to the sixth question, asform- ulaied by Mr. Blaine, said: "I am now directed by the President to submit the following, which he thinks avoids the objecfion urged by Lord Salisbury: (6) If the determination of the foregoing questions as to the exclu- sive jurisdiction of the United States shall leave the subject in such position that the concurrenceof Great Britain is necessary to the estab- lishment of regulations for the proper protection and preservation of the fur seal in, or hahitually resortinr/ to, the Bering Sea, the arbi- trators shall then determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, and over toliat 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 Dther evidence as either Government may submit. The contracting parties furthermore agree to cooperate in securing the adhesion of other j)owers to such regulations." 23 In the same letter Mr. Wliarton submitted a proposal for the appohitmeut of a Joiut Commission by the two Governments, in accord- ance with the assurance given by the President in the letter of June 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. TJ. S. Case, Aj)})., Vol. I, pp. 319, 320. The British Government accepted the sixth question as thus formu- lated, and that question constitutes Article VII of the treaty. I do not find in any part of the diplomatic correspondence any criticism by representatives of the British Government of that question as last formulated. Other evidence throws light upon the inquiry whether it was not well understood by the British Government, after the signing of the modus Vivendi for 1891, if not before, that the inquiry as to what was necessary to protect the fur seal race embraced both Bering Sea and the North Pacific Ocean. The commission issued June 15, 1891, by Her Majesty to the two commissioners appointed to investigate seal life recited that they were appointed "for the purpose of inquiry into the conditions of seal life and the precautions necessary for i)reventing the extermination of the fur seal species in Bering Sea and other parts of the North Pacific Ocean.^^ Substantially the same recitals were made in the letter of instructions issued to those commissioners by the Marquis of Salisbury under date of June 21, 1891. Subsequently, on tlu^, 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 re|)ort 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 con- sider what Eegulations may seem advisable, whether within the juris- dictional 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, bo matter for the consideration of the respective Govern- ments, 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 for- ward on behalf of the United States. The Eeport is to be presented in tlie first instance to the two Governments for their consideration, and is subsequently to be laid by those Governments before the Arbitra- tors to assist them in determining- the more restricted question as to what, if any, Kegulations are essential for the protection of the fur- hearing seals outside the territorial jurisdiction of the two countries." British Comm. Report, p. Vii. And the report of these commissioners, presented to the British Government June 21, 1892, recites that they were appointed to inquire "into the conditions of seal life and the precautions necessary for pre- venting the extermination of the fur seal species in Bering- Sea and other parts of the North Pacific OceanP In the same report will be found "a general view of the conclusions at which we [the British Com- missioners] 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 Ameri- can Commisshmers, Profs. Mendenhall and Merriam, were appointed by the President "to proceed to the Pribilof Islands and to make cer- tain investigations of the facts relative to seal life, with a view to ascer- tain what permanent measures are necessarj^ for the preservation of the fur seal in Bering Sea and the North Pacific Ocean." U. 8. Case, 311. It thus appears from the diplomatic correspondence before us and by the action of the two Governments — 1. That each Government, from the beginning to the end of the negotiations resulting in the treaty, expressed not only an earnest desire that the fur seals be protected against extermination, but their willingness to adopt such measures as were necessary to prevent the destruction of these animals by its citizeris or subjects, and that their action should be concurrent; 2. That the British Government, in the early jieriod of these negotia- tions, 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 hetwcen America and Russia north of the forty-seventh degree of latitude; " , * This agreement was signed December 18, 1801. The treaty was not signed until February 29, 1892. 25 3. That wliile the original proposition of Lord Salisbury was for a joint couimissiou to ascertain what iuternatioual arraii<>ements were necessary " for the pnrpose 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 iiiteruational arrange- ments were necessary " for the purpose of preserving the fur seal in the Northern Pacific Ocean from extermination ;" 4. That the British Government made a condition of its agreeing to the proposed modus vivendi for 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 Gov- ernment, 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 exi)licit declaration of Sir Julian Pauncefote, that "the sole object of the negotiation is the preservation of the fur seal species for the bene- fit 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 tlie fur seal species," and in order that the Arbitra- tors, if appointed, might consider measures for the protection of seal life "throughout the whole of Bering Sea and portions of the Northern Pacific Ocean,''^ modified the sixth question, as originally formulated, and, instead of concurrent regulations "for the killing of the fur seals in any part of the Bering Sea," outside of ordinary territorial limits, as was first iiroposed, provided for concurrent regulations (if the con- currence ot Great Britain was found to be necessary) "for the proper protection and preservation of the fur seal in, or hahitually resorting to, tlie Bering Sea." It could not liave escajied tlie attention of Lord Salisl)ury that the effect of tliis modification of the sixth question was, beyond all question, to enable this Tribunal to prescribe concurrent regulations to i)rotect 26 and preserve nil fnr seals tliatliubiliially resorted to tlie islands of the United States in Bering Sea, althougli tliey might not remain during the whole of each year in that sea. And the mod ideation which the United States made of the sixtli question brought it into harmony with the fifth question, previously assented to, wliich involved an inquiry as to whether the United States has "any right, and if so what right, of l^rotection or property in the lur seal frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?" These seals do not the less frequent those islands, nor the less habitually resort to Bering Sea, because their habit — as both Governments well knew — was, in the fall of every year, at about the same time, to leave their breeding grounds at the Pribilof Islands and go to the south of the Aleutian Islands into the North Pacific Ocean, from which ocean, each year and at the same time, they returned to Bering Sea and to their established breeding grounds on the islands of St. Paul and St. George. But this is not all that is suggested by the modification made of the sixth question. Recurring to the words of that question, in its original form, it will be seen that one of the matters to be determined in the event the concurrence of Great Britain was necessary in prescribing regulations for the ''killing" of fur seals in the waters of Bering Sea was whether a "closed season (during which the killing of fur-seals in the waters of Bering Sea outside the ordinary territorial limits shall be j)rohibited) 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, dur- ing which the taking of those seals might be entirely inohibited. 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 Government had " no objection to refer the general question of a closed time to ai'bitration, 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. And it is a fact of much signifi- cance 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, result- ing from that determination, of prescribing concurrent regulations, not for the killing of fur seal, but "for the x>i"oper protection and pres- ervation of the fur seal in, or habitually resorting to, the waters of Bering Sea." This change of phraseology seems plainly to indicate that the main purpose was to protect the seals by whatever means were found to be necessary. And such must have been the desire; for what object could there have been to regulate the taking of ani- mals 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. Tiiat statement was, in a certain sense, strictly accurate, for the dis- pute between the two Governments arose out of seizures made in that sea. The legality of tiiose seizures was the principal and vital matter then in controversy. ISTo seizures had then been made in the North Pacific Ocean. And these statements, as to the area of conten- tion, were made quite naturally in view of the fact, plainly disclosed by the evidence, that IMr. Blaine, at one time and before the facts in con- nection with seal life in Bering Sea were fully developed, was of opinion that a zone of 20 marine leagues around the Pribilof Islands, within which pelagic sealing should be prohibited, would be all that was necessary in order to preserve these fur seals from extermination. Some stress is also laid on the fact that the modus vivendi for 1S91 and that for 1892 only related to Bering Sea; and, consequently, it is argued, the two governments did not contemplate regulations applicable to the Northern Pacific Ocean. Those who so argue forget that the modus Vivendi for 1S91 was not signed until June 15, 1891, by which time the sealing vessels had all left for the sealing grounds, and a large nundjor, 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 ments, as early as December 18, 1891, had signed tlie text of tlie arti- cles that were to go into the treaty, thereal'ter to be put in ibrin, and by one of which articles it was required that the regulations in-escribed 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 ])reser- vation 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 tlie 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 eiforts most eifective, the sealing in the North Pacific Ocean sliould 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 nund)er is said to be greater than ever before, and witliout any law to regulate the killing of seals the destruction will be immense. All this suggests the need of an effectiv^e modus. Holding an arbitration m regard to the rightful mode of taking seals, while their destruction goes forward, would be as if, while an arbitration to the title of land were in progress, one party should remove all the timber." Mr. Blaine would not have suggested that, pending the arbitration, the modus for 1892 be made applicable both to Bering Sea and the North Pacific Ocean, if he had not supposed tliat 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 tliese 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, tliat 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 sec that if we do not come to an understanding soon, there will be no ]ieed of our agreement relating to seals in the North Pacific or in the Bering Sea." U. S. Case, Vol. J, App. 853-4. Sir Julian Pauncefote replying, under date of February 28, 1892, 29 to Mr. Blaine's note of Febiuaiy 24, referred to tlie statement of the latter that ''if Her Majesty's Government would make their efforts most effective the sealing- in the Korth 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 fur the preservation of these fur seals while they were in the North Pacific Ocean on their migration routes, it would have been easy for tlie Prit- ish Minister to state that fact as a conclusive reason why the modus Vivendi for 1892 should only apply to Bering' Sea. But no such rea- son was assigned for the refusal of the British Government to extend the modus for that year to the North Pacific Ocean. The United States Government was, unfortunately, in such condition at that time, in respect to the arbitration, that it was compelled to accept a modu.s for 1892, applicable only to Bering Sea, or leave both that sea and the North Pacific Oceau entirely open to jjelagic sealing- pending the arbi- tration. 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 inter- est, should enter into the question;" notwithstanding the exi^licit 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 injunctiouof the treaty that the Arbitrators, upon finding- the concurrence of Great Britain necessary to the establish- ment of regulations " for the proper ])rotection and preservation of the fur seal in, or habitually resorting- to, the Bering Sea," shall "deter- mine what concurrent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend," tlie contention now by Her Majesty's Attor- ney General and his learned associates, is that the Tribunal is Avithout authority or jurisdiction, under the treaty, to prescribe regulations api)licable 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 tliis race of uiiiinals can only be properly protected and preserved by tbe absobite cessation, during tbe sealing season, of tbe bunting and taking of tbese fur-seals in tbe waters botb of Bering Sea and tbe JSTortb Pacific Ocean traversed by tbeni outside tbe jurisdictional limits of tbe respective governments. Tbese two contentions are opposed by tbe United States, wbicb insists tbat, according to tbe evidence, tbe continuance of pelagic seal- ing in tbe oj)en waters either of Bering Sea or of tbe Nortbern Pacific Ocean, during tbe montbs of tbe year wben tbese seals may be taken, is absolutely certain to bring about tbe extermination of tbe race in the course of a few years ; and tbat nnder tbe power to determine tbe rights of the citizens or subjects of the two governments, as regards tbe taking of fur seal in, or babitually resorting to, Bering Sea, and to prescribe concurrent regulations for tbe i^roper protection and i)re- servation of sucb seals, and to declare over wbat waters such regula- tions sbould extend, it is competent for this Tribunal, and is its plain duty, nnder tbe treaty, to prescribe regulations looking to a prohibi- tion of pelagic sealing in any waters outside tbe jurisdictional limits of tbe resi)ective governments wbicb are traversed by these seals in tbeir regular semiannual migration from and to the Pribilof Islands. In harmony with tbe views upon regulations wbicb the connsel for Great Britain present, regulations have been submitted in behalf of Her Britannic Majesty, which, if approved, would establisb a zone of -0 miles around tbe Pribilof Islands within wbicb no seal bunt- ing shall be permitted at any time, nor rifles nor nets nsed by sealers, and a closed season from tbe 15tb September to the 1st July for Bering Sea. Under sucb regulations pelagic sealing could be car- ried on witbout restraint, and -with sbotgun.s — confessedly a destruc- tive, if not tbe most destructive mode of taking seals — not only in the ll^ortb Pacific Ocean during the entire season, wben seals can be taken in tbat 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 tbe ISTortb Pacific Ocean, outside tbe jurisdic- tional limits of tbe two Governments, nortli of the thirty-fifth degree of nortb latitude, and east of the one hundred and eightieth meri- dian of longitude from Greenwich. These regulations, it is admit- ted, cover all the waters babitually traversed by tbese fur seals in 31 tlieir migration routes from and to the Pribilof Islands, and, if ap- proved, v.'ould result in the prohibition practically of all hunting; and taking of these seals outside of territorial waters. Much was said, in argument, as to the authority of the Tribunal to prescribe regulations that would entirely prohibit pelagic sealing dur- ing the months in each year when, by reason of the weather and tlie condition of the seas, the hunting aud taking of seals is impracticable. The British counsel contended that it is beyond the power of the Arbi- trators to prescribe regulations of that charaeter. They argued that the Tribuiuil could not do indirectly what they could not do dircc^tly; 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 i^ower of this Tribunal to prescribe such regulations as those decided upon, provi- sionally, in 18SS, 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 thwe siiace to be covered by the proposed convention should be the sea between America and Eussia, 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 munici[)al 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 belbre 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 municii)al 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 inter- pretation 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 puri^ose to prohibit altogether and under all circumstances, the hunting of fur seals in the open seas, but only to authorize the regula- tion of that particular mode of taking these animals. The power given is to prescribe such concurrent regulations "outside tlLe jurisdictional limits of the resijective Governments" as may be necessary "for the 32 proper protectiou and preservation of the fur seal in, or babitiially resortiug 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 x>l'^iii duty, therefore, of this Tribunal is to provide by concun ent regulations for the pres- ervation of these animals, if regulations of that character are neces- sary to accomplish such a result. And tliat duty can be performed by means of regulations, which the two Governments are under solemn obligation to resi)ect 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 preserva- tion of this race of animals, then the result of its proceedings can not possibly be, as both countries intended it should be, " a full, i)er- fect, and linal settlement of all the questions referred to the Arbitra- tors." It is mere play upon words to say, in respect to this treaty, that jirohibition is not regulation, and that regulations or rules, calling in exj)ress words or by their operation for a prohibition of i)elagic 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 fre(pienting the Pribilof Islands. The manifest result of this interpretation of the treaty is that while the Tri- bunal may prescribe regulations for the proi)er i)rotection and preserva- tion 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, woiild have admitted of such a result? Does anyone believe that a treaty rendering such a result x>os- sible would have been signed by any diplonuitic representative of the United States, or would have been api)roved by its President or by any member of the Senate of the United States'? I exx)ress at this time no opinion as to what regulations are in fact, and ujjon a view of all the evidence, necessary to the proper pro- tection and preservation of those fur seals. Nor do I ask the Tribunal now to make any declaration upon the weight of the evidence touch- ing 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 determiued by them, aud I ask no expression of opinion touch- ing any of tliose 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 tlie hunting and taking of these fur seals, according to the methods now j)racticed 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 i)ractical 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 far 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 ox)eu seas, by means which, all concede, are destructive, because not admitting of any discrimination as to sex, nor, still less, of any discrimination between females that are heavy with young and those that have not been impregnated. We are not here with authority to make an award, simply by way of compromise, so that each side in this dispute may have an opportunity to say that it has not been entirely unsuccessful in its contentions before this Tribunal. Our authority has a much wider field of operation. If the repeated avowals of the two nations, who seek an amicable settlement of their differences by means of arbitration, are not to be wholly discredited, we are here, in their names, and by their joint authority, to protect aud preserve this race of animals from extermination if we find that concurrent regulations to that end are necessary. A foilure or refusal to exercise the power, plainly given, to prescribe such regulations as are neces- sary 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 >vith every aspect of this case, as it may affect the supreme object of 11491> 3 34 the protection and preservation of these fnr seals, shonhl, I submit, be passed upon before the Arbitrators euter upon the consideration of the several questions of right submitted for determination. The duty of this Tribunal to prescribe regulations arises when the determination of the questions submitted to us, "as to the exclusive jurisdiction of the United States," leaves the subject in such i^osition "that the concurrence of Great Britain is necessary to the establish- ment of regulations for the i) roper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea." Such are the express Avords of Article VII. If the United States has not such exclu- sive jurisdiction — that is, such sovereign power — as enables it to enact laics, binding upon all, whether citizens of the United States or sub- jects of other countries, for the x>rotection and preservation of these seals, in all the waters both of Bering Sea and of the North Pacific Ocean traversed by them — and no such claim has been preferred before us — then we know, at this time, that the concurrence of Great Britain is necessary to the establishment of regulations, whatever conclusion may be reached upon the issue as to property and x^rotection presented by the fiftli question of Article VI. If it be held that the United States has no right of property in these seals, and no right to protect them when found outside the ordi- nary three-mile limit, then the duty to prescribe concurrent regulations becomes manifest. But regulations of that character are, in my judg- ment, necessary though, perhaps, not equally so, for the proper protec- tion and preservation of the seals, if the Tribunal holds that such right of property or lu'otection does appertain to the United States; for, in that case, the only means which the Government of that country could emi^loy would be those which the law permits to individual owners of property for its protection. But that would be inade(iuate protec- tion, Avithout the concurrence of Great Britain, manifested by such leg- islation as would bind its subjects wherever they may be, and compel them, under, proper penalties, to respect any right of i)roperty or protection accorded to the United States by the award or decision of this Tribunal. So that it is certain that Ave must come to the subject of regulations for tl\Q proi)er x^rotection and preservation of this race of animals. If the Arbitrators believe that the race Avill be soon exterminated unless pelagic sealing is prohibited, in both Bering Sea and the North Pacific Ocean, during all the mouths Avhen they may be taken in the 35 open waters, but that the Tribuual is without power, under the treaty, to iH'escribe 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 ox)iK>rtuuity 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 pres- ervation 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 Tribuual to conclude its labors and adjourn without prescribing concurrent regu- lations that are, in fact, necessary for the preservation of these seals? As these questions touching the competency of the Tribunal to deal with the subject of the preservation of these animals have been dis- tinctly 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 discussiou Senator Morgan offered, as a substitute for the mo- tion of Mr. Justice Harlan, the following: "'This Tribunal of Arbitration is empow- ered by the Treaty of February 29, 1892, between the United States and Great Britain, to determine what concurrent regulations are proper to be adopcea and enforced by the action of tlie respective governments, applicable to their resjiective citizens or subjects, outside of their respective territorial limits and outside oL Bering Sea, for the protection and preservation of fur seals in, or habitually resort- ing to, Bering Sea." This substitute was accepted by Mr. Justice Harlan, and was adojited, one Arbitrator voting in the negative. It was agreed that the considera- tion of the subject embraced in the second branch of the original motion of Mr. Justice Harlan be postponed until the Tribuual should reach the subject or regula- tions in order, and should determine that regulations were made necessary by the conclusions reached upon other q^ucstious named m the treaty .J PART II. THE MERITS OF THE VARIOUS QUESTIONS SUBMITTED TO THE TRI- BUNAL FOR DETERMINATION. 1. CJEIVERAIi STATEMENT OF THE FACTS OUT OF ^VHICn THE PRESENT CONTKOVEKSV BETWEEiV THE TWO IVATBONS ABOSE, AIVW THE BSSSTOKV OF TSIE NEGOTIATIONS KESUL.TlNCi IN THE TISEATIT OF FES5KUABV -29, 1S92. Before entering upon the examination of tlie important questions submitted for determination, it will be Avell 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 regu- lations applicable to the North Pacific Ocean, and which also, in terms, or by their necessary operation, would put an end to j)elagic sealing in the waters traversed by the Pribilof seals. But it is well, even at the risk of repetition, to restate them in this connection. The controversy had its origin in certain seizures of vessels, alleged to belong to, or to be in the possession or uuder the control of, British subjects who were engaged, at the time, in the Avaters 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 ol St. Paul and St. George, two of the four islands in Bering Sea con- stituting the Pribilof group. The seizures referred to were made in 1886, 1887, and 1889 by public armed vessels acting under instructions from the Executive Depart- ment 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 ISewen- ham, on the mainland of Alaska Territory, and about 200 miles north ol the Aleutian Islands, the latter islands extending several hundred 86 37 miles -vrestwardly and sontliwestcrly from the peninsnla of Alaska into the Pacific Ocean. They were discovered in 1780 and 1787 by Gerassim Pribilof, a Eussian 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 Eussia until 18G7. In that year the Emperor, by treaty, ceded to the United States "all the territory and dominion" then pos- sessed 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 Eussian and British possessions in ]^orth America, as established by articles III and IV of the treaty, which will be hereafter referred to, between Eussia and Great Britain of February (28) IG, 1825. . The western limit is thus defined by the treaty of 1807: "The western limit within which the territories and dominion conveyed are contained passes tlirough a point in Bering's Straits on the parallel of 05^' 30' north latitude, at its intersection by the meridian which passes midway between the Islands of Kruzenstern or Igualook, and the Island of Eatmanofif or Xoonarbook, 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 ])ass midway between the northwest point of the Island of St. Law- rence 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 Attn 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, Eussian or any other, or by any parties, except merely private individual property holders; and the session hereby made conveys all the rights, franchises, 38 nnd privileges now beloiif^ing to Eiissia in the said territory or domin- ion and appurtenances tliereto." (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 liussia to the United States. By an act of the Congress of the United States approved March 3, 18G9, the islands of vSt. 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 l)revent the extermination of fiir-bearing animals in Alaska,. The pro- visions of the acts of 1860 and 1870 are reproduced in the lievised 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. The laws of tlie 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 Knssia by treaty concluded at Washington ou the thirtieth day of March, anno Domini one thousand eight hundred and sixty-seven, so far as the same may be applicable thereto. Sec. 1956. No person shall kill any otter, mink, marten, sable, or fur-seal, or other fur-bearing animal within the limits of Alaska Territory, or in the waters thereof; and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than six months, or both; and all A'essels, their tackle, apparel, furniture and cargo, found engaged in violation of this section shall be forfeited. Bnt the Secretary of the Treasury shall have power to authorize the killing of any such mink, marten, sable, or other fiir-bearing animal, except fur-seals, under such regulations as he may prescribe; and it shall be the duty of the Secretary to prevent the killing of any fur-seal, and to provide for tlie execution of the provisions of this section until it is otherwise provided by law; nor shall he grant any special privileges under this section. Sec. 1959. Tlie islands of Saint Paul and Saint George in Alaskai, are declared a special reservation for Government purposes; and until otherwise provided by law it shall be unlawful for any person to land or remain on either of those islands, except by the authority of the Secretary of the Treasury; and any person found on either of those islands contrary to the provisions hereofshall be summarily removed; and it shall be the duty of the Secretary of War to carry this section into effect. Sec. 1960. It shall bo unlawful to kill any fur-seal upon the islands of Saint Panl and Saint George, or in the waters adjacent thereto, except during the months of June, .Inly, September, and October in each year; and it shall be unlawful to kill such seals at any time by the use of firearms, or by other means tending to drive the seals away from those islands; but the natives of the islands shall have the privilege of killing such young seal as may be necessary for their own food and 39 States, over the territory and waters witliin the limits referred to in the treaty of 1SG7. By a subsequent act, passed March 2, 1SS9, section 1950 of tlie Eevised Statutes, forbidding the kiHing of "any otter, mink, marten, sable or fur seal, or other far-bearing animals within the limits of Alaska Terri- tory, 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 eacli year, to issue his proclamation warning all persons against entering said waters for the i)urpose of violating the provisions of said section, and to cause one or more vessels of the United States to diligently cruise said waters and arrest all persons, and seize all 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 (Inring other months, and also such old seals as may be reqnived for their own clothing-, and for the mauufactnre of boats for their own use; and tlie killing in such cases shall be limited and controlled by such regulations as may be pro- scribed by the Secretary of the Treasury. Src. 1'JIjI. It shall be unlawful to kill any female seal, or any seal loss than one year old, at any season of the year, except as above provided; and it shall also be unlaAvfnl 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 sec- tion shall be punished for each offense by a fine of not less than two hundred dollars nor more than one thousand dolkirs, or by inipiisonment 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 pre- ceding section, shall be forfeited to the United States. Sec. 1962. For the period of twenty years from the first of July, eighteen hun- dred and seventy, the number of fur-seals which may bo 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 expircs,or is sur- rendered, forfeited or terminated, the Secretary shall lease tojiroperand 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 x>rescribed 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 Brit- ish Government protested against those seizures as an unauthorized interference with the rights of its subjects on the high seas. Its Minis- ter at Washington, Sir Lionel Sackville West, in a letter dated Janu- ary 9, 1887, and addressed to Mr. Bayard, the American Secretary of State, said: ''It is unnecessary for me to allude further to the informa- tion with which Her Majesty's Government have been furnished respect- ing 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 tlie best advantage of the Uaitecl States, having dne regard to the in- terest of the Government, the native inhabitants, their comfort, maintenance and edncation, as well as to the interest of the parties heretofore engaged in trade, and the protection of the fisheries, the right of taking fnr-sealson 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 dol- lars, to be reserved in such lease and secured by a deposit of United States bonds to that amount; and every such lease shall be duly executed in duplicate, and shall not be transferable. Sec. 1964. The Secretary of the Treasury shall take from the lessees of such islands in all cases a bond, with securities, in a sum not less than five liundred thousand dollars, conditioned for the faithful observance of all the laws and requirements of Congress and the regulations of the Secretary of the Treasury touching the taking of fur-seals and the disposing of the same, and for the payment of all taxes and dues accruing to the United States connected therewith. Sec. 1965. No persons other than American citizens shall be permitted, by lease or otlierwiso, to occupy the islands of Saint Paul and Saint George, or either of them, for thepurp(jse 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 employes, in the lawful prosecution of their business, under the provis- ions of this chapter, shall for each offense be punished as described in section 1961; and all vessels, their tackle, apparel, appurtenances, and cargo, whoso crews are found engaged in any violation of the provisions of sections 1965 to 1968, inclusive, shall be forfeited to the United States. Sec. 1968. If any pers(m or company, under any lease herein authorized, know- 41 eniDieiit, 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 illegal- ity 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. 8. Case, Vol. 1, App., 156. Under date of April 12, 1887, Mr. Bayard, writing to the British minister, said: "The remoteness of the scene of the fur-seal fisheries and the special peculiarities of that industry have unavoidably delayed the Treasury officials in framing appropriate regulations and issuing orders to United States vessels to police the Alaskan waters for the protection of the far seals from indiscriminate slaughter and conse iugly 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 Avhole number of skins oi seals killed in that year, or, in case tbe same have been disposed of, then such per- son or company shall forfeit the value of the same. Sko. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixty-tliree, 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 tbe same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full eftect all the iirovisions of this chapter except as otherwise prescribed. Skc. 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. Skc. 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 preseni.ed to the Government revenue officer for the time being who may be in charge at the islands as the authority of the party for landing and taking skins. Sec. 1972. Congress may at any time hereafter alter, amend or repeal sections from 1960 to 1971, both inclusive, of this chapter. Sec. 1973. The Secretary of the Treasury is authorized to appoint one agent and three assistant agents, who shall be charged with the management of the seal fish- eries in Alaska, and the performance of such other duties as may be assigned to them by the Secretary of the Treasury. Sec. 1975. Such agents shall never be interested, directly or indirectly, in any lease of the right to take seals, nor in any proceeds or profits thereof, either as owner, agent, 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 sec- tions 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 indis- criminate 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." U. S. Case, Vol. i, App., 160. Subsequently, August 19, 1887, Mr. Bayard addressed communications to the United States mi nisters in France, Germany, Great Britain, Japan, Enssia, 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 and indiscriminate killing of seals in many parts of the ■world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their number. Under these cir- cumstances, and in view of the common interest of all nations in pre- venting 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 drav/ the attention of the Government to which yon are accredited to the sub- ject, and to invite it to enter into such an arrangement with the Gov- ernment 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 simi- larly addressed on the subject referred to in this instruction." TJ. 8. Case, Vol. 1, Ajyp., 168. A copy of this connuunlcation having been received by Mr. Phelps, 43 United States minister at London, lie liad an interview witli Lord Sal- isbury, tUe British Secretary of State for Foreign Affairs, and proposed that the two governments should adopt a code of regulations for tlie 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 ]\Iinister obtain from his Government and submit a sketch of a system of regulations that would be adequate for the purpose. U. S. Case, Vol. 1, Ap^)., r/1. Under date of February 7, 1888, Mr. Bayard wrote to Mr. Flielps 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 Kussia. Eesponding 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 ])revent their citizens or subjects from killing fnr seals with firearms or other destructive weajions north of 50 degrees of north latitude, and between IGO degrees of longi- tude west and 170 degrees of longitnde east from Greenwich, during the period intervening between April 15 and ISTovember 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 pro- ceeded to show: "That the extermination of the fur seals must soon take i)lace 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 pre- servation. Formerly, many thousnnds of seals were obtained annnally from the South Pacific Islands and from the coasts of Chile and South 44 Africa, Tbey were also common in the Fallvland Islands and the adja- cent seas. Bnt'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 indis- criminate 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 Prib- ilof 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 fur- ther observed that Great Britain, in cooperating with the United States to prevent the destruction of fur seals in Bering Sea would aid in perpetuating au extensive and valuable industry in which her own citizens have the most lucrative share. U. S. GasCj Vol. 1, p. 172. Mr. Phelps, upon receiving this communication, held an interview, in Loudon, with both Lord Salisbury and the Eussian Ambassador, M. de Staal, and reported, under date of February 25, 1888, that his lord- ship 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. U. S. Case, Vol, 1, App., 173. The Eussian ambassador concurred, so far as his personal o])iu- ion was concerned, in the propriety of the proposed measures for the protection of the seals, and promised to conmiunicate 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 au arrangement between the governments interested without the United States being called ui)on to consider what special measures of its owu the exceptional character of the i^roperty in question might require it to take in case of the refusal of foreign powers to give their coopera- tion. 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 5 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 pro- tection." 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 Sal- isbury and the Kussian ambassador, and reported that M. de Staal exj)ressed a desire, on behalf of his government, to include in the area to be protected by the convention the Sea of Okhotsk, or at least that portion of it in which Robben Island is situated, there being, he said, in that region large numbers of seals whose destruction is threatened in the same way as those in Bering Sea; and that Lord Salisbury, in order to meet the Eussian Government's wishes respecting the waters surrounding Bobben 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 pro- posed arrangement. His lordship intimated, furthermore, that the period proi^osed by the United States for a close time, April 15 to No- vember 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. 8. Case, Vol., 1, App., 179. Mr. Bayard, in reply, said that he did object to the inclusion of the Sea of Okhotsk, or so much of it as was necessary for the protection of the seals; nor did he deem it absolutely necessary to insist on the ex- tension of the close season till the 1st of November. Only such a i)eriod • was desired as was requisite for the end in view. But that suc- cess may be assured in the efforts of the various governments inter- ested in the protection of the seals, it seemed advisable to take the loth of October instead of the 1st as the date of the close time, although, the 1st of November would be safer. U. 8. Case, Vol. 1, App., 180. At the argument there was some controversy between counsel as to whether Lord Salisbury had, in fact, agreed to any particular mode of protecting these fur seals from destruction. It is quite sufficient, in any view of this case, to accept the account Lord Salisbury him- self 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 tbis subject was held on the IGth of April, 1888, and its result was stated the same day in an official comiuunication 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 pledg- ing our governments, that the space to be covered by the proposed convention should be the sea between America and Eussia north of the iTth 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 seizuie by the cruisers of any of the three powers and should be taken to the port of their own nationality for condemna- tion; that the trafiic 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'aifaires 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 iheet in the open sea, and that of these a great number sank, so that their skins could not be recovered." British Case, Vol. 6', App., 196; XT. 8. Case, Vol. 1, App., 238. A similar communication was sent to Sir E. Morier, the British Am- bassador 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 rei^resentatives of Great Britain, the United States and Eussia, '-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 comi)letiou of the convention, as the proposed extermination of the seals by Canadian vessels was un- derstood to be rapidly proceeding. His lordship did not question tbe X)ropriety or importance of taking measures to i^revent the wanton de- struction of so valuable an industry, in which, as he remarked, England had a large interests of its own. But he said that the Canadian Gov- ernment objected to any such restrictions, and that until its consent 47 could be obtained, Iler ]\rajesty'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 ap- parent to Mr. Phelps tliat 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 prolit 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 killed at the proper time. Under these circumstances, the Gov- ernment 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 emi)loyed in it. BetAveen these alternatives it does not appear to me there should be the slightest hesitation." U. S. Case, Vol. l,pp. 181,182. Upon the accession of Mr. Harrison to the office of President, tne matters in dispute between the two Governments being unsettled, again became the subject of diplomatic correspondence. That corre- spondence 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, 1880, together with extracts from some of the communications emanating from the State Department, will suifice to show the general grounds ui)on which the l)osition then taken by the United States was based. In the report which Sir Julian Pauncefote made to Lord Salisbury of the above interview, it is said: " We had a great deal of friendly discussion, in the course of which he stated that the seizures of the Canadian seal fishing vessels had been effected by the Treasury Department, whicli is cliarged 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 proclama- tion 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 marc dauswn doctrine, wliich I coald hardly believe would be revived at the present day by his (loverument or any other, to which he replied that his Government had not officially asserted such a claim, and therefore it was nunecessary 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 chiimed the exclusive right of seal fishery, which the United States, and Eussia before them, had practically enjoyed for generations without any attempt at interfer- ence from any other country. Tlie 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 ])eriodically resort to lay their young, and now Canadian fishermen step in and slaughter the seals on their passage to the islands, without taking heed of the Avarnings given, by Canadian officials themselves, that the result must inevitably be the extermination of the species. This was an abuse, not only reprehensible in itself, and opposed to the interests of mankind, but an infraction of the rights of the United States. It inflicted, moreover, a serious injury on a neighboring and friendly State, by depriving it of the fruits of an industry on which vast sums of money had been expended, and which had long been pursued exclusively and for the general benefit. The case was so strong as to necessitate measures of self-defense for the vindication of the rights ot the United States and the i)rotection of this valuable fishery from des- truction. I replied that as regarded the question of right I could not admit that the seizure of the Can;idian 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 be- yond territorial waters. A claim of exclusive fishery on the high seas was opposed to international law, and no such right could be acquiied by prescription. Mr. Blaine observed that he thought Great Britain enjoyed such a right in relation to pearl fisheries in some parts of the world. I said I was not aware of any such case. As regarded the question of fact, namely, the extermination of the fur seal species and the necessity for a ' close season,' there was unfortunately a conflict of opinion. But if, uj)on 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 ditferences on questions of legal right 49 would ipso facto disappear. Mr. Bluine expressed his readiness to pro- ceed to such an inquiry, adding- that he would be prepared to establish from Cauadiau evidence alone the absolute necessity for a ' close sea- son,' but he strongly insisted that the inquiry should take place here and be entirely of a diplomatic character. * * * As regards com- pensation, if an agreement should be arrived at, he felt sure that his Government would not wish that private individnals who had acted bona fide in the belief that tliey 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 interimtional law disap- pear in an agreement for a 'close season,' which he believes to be urgently called for in the common interest. It oidy 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." Britisli 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 co/^^ra honos mores, a pursuit whichof 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 Eussia, in the treaty by which the Alaskan Territory was transferred to the United States, The weighty considerations growing out of the acquisinou 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 whicli tliis Govenimeiit rests its justification for tlie action complained of by Her Majesty's Government. It cannot be nnknown to Eer Majesty's Government tliat one of the most valuable sources of revenue from tlie Alaskan possessions is tlie far seal fisLeries of the Bering Sea. These fisheries had been exclusively controlled by the Govern- ment of Eussia, without interference or without question, from their original discovery until the cession of Alaska to the United States in 18G7. 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 tak- ing of seals in the opeu sea rapidly leads to their extinction. This is not only the well-knowu 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 destruc^ tiou of all seal fisheries except the one in Bering Sea, which the Gov- ernment 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 futuie loss of the whole number which the bearing seal may produce in the succes- sive years of life. The destruction which results from killing seals in the open sea proceeds, therefore, by a ratio which constantly and rap- idly increases, and insures the total extermination of the sjjecies within a very brief i)eriod. It has thus become known that the only proper time for the slaughter of seals is at the season w^hen they betake them- selves to the land, because the land is the only place where the neces- sary discrimination can be made as to the age and sex of the seal. It would seem, then, by fair reasoning, that nations not possessing the territory upon which seals can increase their numbers by natural growth, and thus aftbrd an annual supply of skins for the use of mankind, should refrain from the slaughter in open sea, where the destruction of the species is sure and swift. 51 "After the acrjuisifciou of Alaska the Goveriiineut of the United States, through competent agents working under the direction of the best ex j)erts, gave careful attention to the improvement of the seal fish- eries. Proceeding by a close obedience to the laws of nature, and rig- idly limiting the number to be annually slaughtered, the Government succeeded in increasing the total number of seals and adding corre- spondingly and largely to the value of the fisheriCvS. In the course of a few years of intelligent and interesting experiment the number that could be safely slauglitered was fixed at 100,000 annually. The com- pany to which the administration of the fisheries was intrusted, by a lease from this Government, has paid a rental of 150,000 per annum, and in addition thereto $2.C2i per skin for the total number taken. The skins were regularly transported to London to be dressed and i^re- pared for the markets of the world, and the business had grown so large that the earnings of English laborers, since Alaska was trans- ferred to the United States, aniount in the aggregate to more than 112,000,000. The entire business was then conducted peacefully, law- fully, 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 i)ains to the care and development of the fisheries; profitably to the Aleuts, who were receiving a fair pecu- niary 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 employ- ment and received good wages. "This, in brief, was the condition of the Alaska fur seal fisheries down to the year 18S0. The precedents, customs, and rights had been estab- lished and enjoyed either by Russia or the United States for nearly a century. The two nations were the only powers that owned a foot of land on the continents that bordered, or on 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 tlie resulting indu.slrics whicli are so valuable. The 62 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 iuimediately interfere to defend and encourage (surely to encourage by defending) the course of the Cana- dians in disturbing an iiidiistry which had been carefully developed for more than ninety years under the Hags of Kussia and the United States — developed in such a manner as not to interfere with tlie 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 1880 that which they had refrained from doing for more than ninety years ? Upon what grounds did Her Majesty's Government defend in the year 188Ga course of conduct in the Bering Sea which she had carefully avoided ever since the discovery of that sea? By what reasoning did Her Mnj- jesty's Government conclude that an act may be committed with impu- nity against the rights of the United States which had never been attempted against the same rights when held by the Russian Empire? ''•'So great has been the injury to the fisheries from the irregular and destructive slaughter of seals in the open waters of the Bering Sea by Canadian vessels that, whereas the Government had allowed 100,000 to be taken annually for a series of years, it is now compelled to reduce the number to 60,000. If four years of this violation of natural law and neighbor's rights has reduced the annual slaughter of seal by 40 per cent, it is easy to see how short a period will be required to work the total destruction of the fisheries. "The ground ui)on which Her Majesty's Government justifies, or at least defends, the course of the Canadian vessels rests upon the fact that they are committing their acts of destruction on the high seas, viz, more than 3 marine miles fi-om 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, Avhich extend more than 20 miles from the shore line and have been enjoyed by England without molestation ever since their acquisition. So well recognized is the British ownership of those fisheries, regardless of the limit of the 3-mile line, that Her Majesty's Government feels authorized to sell the pearl-fishing right from year to year to the highest bidder. Nor is it credible that modes of fishing on tlie 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 fiom the shore. 53 "There are, according to scientific authority, " great colonies of fisli" on tlie "Newfouudhind Banlcs." These coh)nies 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. Strin- gent laws have been necessary to prevent the taking of fish by tlieuse of dynamite in many of the rivers and lakes of tlie United States. The same mode of fishing could readily be adopted with effect on the more shallow parts of tlie banks, but the destruction of fisli in propor- tion 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 linel "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. In exter- minating 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 prob- able 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 ]30werless to prevent such violation of the common rights of man? Are the supporters of justice in all nations to be declared incompetent to prevent wrongs so odious and so destru(;tive? "In the judgment of this Government, the law of the sea is not law- lessness. Nor can the law of the sea and the liberty which it confers and which it protects be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification. The President does not conceive it possible that Her Majesty's Government could, in fact, be less indifferent to these evil results than is the Government of the United States. But he hopes that Her Majesty's Government will, after this frank expression of views, more readily comprehend the position of the Government of the United States touching this serious question. This Government has been ready 54 to concede mncli in order to adjust all differences of view, and has, in tlie 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 propo- sition 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 occa- sion and no desire to withdraw or modify the positions which it has at any time maintained agaiust 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 Alaslca was part of the Russian Empire. ISTor is the Government of the United States dis- j)osed 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." U. 8. Case, Vol. J, A;pp., 200. In his letter of December 17, 1890, in reply to Lord Salisbury's letter of August 2, 1890, Mr. Blaine discusses with much elaboration and with signal ability all the questions then in dispute between the two governments. In that letter he says: "I am directed by the President to say that, on behalf of the United States, he is willing to adopt the text used in the act of Parliament to exclude ships from hovering nearer to the island of St. Helena than 8 marine leagues, or he will take the example cited by Sir George Baden- Powell, where, by permission of Her Majesty's Government, control over a part of the ocean GOO miles wide is to-day authorized by Austra- lian law. The President Avill 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 Britniii's assumption of power over tlie open ocean she can not with consistency decline. (Ireat Britain pre- scribed 8 leagues at St. Helena; but the obvious necessities in the Bering- Sea will, on the basis of this precedent, justify 20 leagues for the protection of the American seal fisheries. "The United States desires only such control over a limited extent of the waters in the Bering- Sea, for a jKirt of each year, as will be suffi- cient 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 Ameri- can 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 inter- ests have, within the past four years, been damaged to the extent of millions of dollars, with no corresx)onding gain to those who caused the loss. * * * "The repeated assertions that the Government of the United States demands that the Bering Sea be pronounced /Harec/fmsMm are with- out 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 comi^aratively 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 inter- ference with the common law of the sea as is maintained by British authority to-day in the Indian Ocean." U. S. Case, Vol. I, Apj)., 263, 284^ 286, 56 In tlie same letter he observes that the President, not desiring the long- postponement which an examination of tlie legal anthorities from LTlpiau to Phillimore and Kent would involve, refers to the following passages in the letter of Mr. Phelps of September 12, 1888, as fully ex- pressing his own views : "Much learning has been expended upon the discussion of the abstract question of the right of mare clausiim. I do not conceive it to be applicable to the i)resent ease. Here is a valuable li.'liery and a large, and, if i)roperly 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 defend- ing ourselves against such depredations because the sea at a certain distance from the coast is free. The same line of argument would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things which can not be allowed to be done on the open sea with impunity, and against which every sea is mare clausum; and the right of self-defense as to person and prop- erty prevails there as fully as elsewhere. If the fish ui)on Canadian coasts could be destroyed by scattering poison in the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenceless in sucli a case? Yet 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 like- wise unknown. The best international law has arisen from precedents that have been established when the just occasi(m for them arose, undeterred by the discussion of abs.tract and inadequate rules." [T. IS. Case, Vol. 1, App., 263, 287. At a later date, in his letter of June 14, 1891, to Sir Julian Paunce- fote, 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 ndvlsers of tlie President) reply, as a justifieatiou 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 tliat the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rear- ing their young thereon, that their going out from the islands in search of food and regnlarly returning thereto, and all the facts and incidents of their relation to the island, give the United States a property interest therein; that this property interest was claimed and exercised by Kussia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recog- nition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska and during the first nine- teen years of the sovereignty of the United States. It is yet to be deter- mined whether the lawless intrusion of Canadian vessels in 18SG and subsequent years has changed the law and equity of the case thereto- fore prevailing." U. 8. Case, Vol. 1, App., 295, 298. The general contention of the British Government, during the negotia- tions, 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 honos mores unless and until, for si)ecial 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 tlie 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 luition from the mere fact that for a cer- tain number of years it has not suited the subjects of that nation to exercise it; that fur seals were animals ferm naturoSj 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 auy 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. 2. JURISOICTION ANI> RIOHTS AS!«iEKTK» AIVD KXISRCISf:!) BY RFS- SSA IIV BKKEI^C} SEA, AX]» BIV RES^SPECT TO TBEE SEAt, FISHERIES IIV THAT SEA, l>RIOR TO THE tJESSION OE 1S67 OF AI.ASKA TO THE UIVBTED STATES. EFFECT OF THE TKEATV COIVC5iU©ED IN iS35 BETWEEN RUSSIA AIV» OREAT BRITAIN. THE RICJHTS THAT PASSED TO THE UNITED STATES BY THE TREATY OF tKSSION OF lS«r. With the knowledge of the origin and history of the controversy between the two Governments which the above stateaieut furuishes we are the better i^repared to con-^ider 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 sliall embrace a distinct decision upou each of said five points, to wit: "1. What exclusive jurisdiction in the sea now known as the Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States'? "2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 59 "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 Enssia, and what rights, if any, in the Bering Sea were held and exclusively exercised by Eussia after said treaty? "4. Did not all the rights of Eussia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary in the treaty between the United States and Eussia of the 30th March, L867, pass unimpaired to the United States under that treaty ? "5. Has the United States any right, and, if so, what right, of pro- tection 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 j)oiiits specified in this article of the treaty are, in iny judgment, embraced in the general questions for the amicable settle- ment of which this Tribunal has been constituted, and which are described in Article I of the treaty as questions ''concerning the juris- dictional rights of the United States in the waters of Bering Sea, and concerning also the preservation of the fur seal in, or habitually resort- ing 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 tlie Tribunal makes to the points particularly named in Article VI. If they are not so met, then it will be the duty of Arbi- trators to make such additional answers as will cover all the mat- ters 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 Avithiu 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 i)oints enumerated in those artic^les 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 jttrisdiction in the sea now Joiowu as the Bering Sea, 60 and wJiat exclusive rights in the seal fisheries therein, did Bussia assert and exercise prior and up to the time of the cession of Alaska to the United States? The relations lield by Russia to Bering Sea and to the fisheries therein, Uirgely involve the interpretation to be given to what are called the Ukases of 1799 and 1821, to the treaty of 1821 between Enssia and the United States, and the treaty of 1825 between Eussia 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 and authority asserted by Russia. The Ukase of 1799, as it is commonly called, was little more than a charter granted to the Russian American Company. The material portions of it are in these words: "By the grace of a merciful God, we, Paul the First, Emporor and Autocrat of all the Russias, etc. To tlie Russian American Company under our highest protection. The benefits and advantages resulting to our emi)ire from the hunting and trading carried on by our loyal subjects in the nortlieastern seas and along the coasts of America have attracted our imperial attention and consideration; therefore, having taken under our immediate protection a comjiany organized for the above-named iiurpose 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 com- pany in its enterprises, we allow the commanders of our land and sea forces to employ said forces in the company's aid, if occasion requires it, while for further relief and assistance of said company, and having examined their rules and regulations, we hereby declare it to be our highest Imperial will to grant to this company for a period of twenty years the following rights and privileges: "I. By the right of discovery in past times by Russian navigators of the northeastern part of America, beginning from the fifty-fifth degree of north latitude and of the chain of islands extending from Kamchatka to the north to America, and southward to Japan, and by right of pos- session of the same by Russia, we most graciously permit the company to have the use of all hunting grounds and establishments now exist- ing on the northeastern coast of America, from the above-mentioned fifty-fifth degree to Bering Strait, and also on the Aleutian, Kuiiie, and other islands situated iu 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 jjrofit by everything that has been or shall be dis- covered in those localities, on the surface and in the interior of the earth, without competition from others. "ly. We most graciously permit this company to establish settle- ments in future times wherever they are wanted, according to its best knowledge and belief, and fortify them to insure the safety of the in- habitants, and to send ships to those shores with goods and hunters, Avitliout any obstacles on the part of the Government. " V. To extend their navigation to all adjoining nations and hold busi- ness intercourse with all surrounding powers, upon obtaining their free consent for the purpose, and under our highest protection to enable them to j)rosecute their enterprises with greater force and advantage. "VI. To employ for navigation, hunting, and all other business, freeand 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, and discovery of new lands, prohibiting the enjoy- ment 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 comj)anies 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 proijerty, 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 enjoy- ment of all the rights mentioned. "XI. 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 tlieir control against foreign attacks. Only partners of the companj'^ 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 origi- nal Cases of both governments. It is also identical with that found in Bancroft's History of Alaska, the author stating that the translation adojited by him is based on the full text of the charter from Golovnin in Materialui I. 77-80. Bancroffs Works, Vol. 33, History of Alaslca, 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 Eussian document, as given by Golovnin and Tikhmenie, is produced. But at the oral argument it was admitted that the differ- ences 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 Rus- sia 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. McItosU, 8 Wheat., 543, 572. In that case Chief Justice Marshall, speaking for the court, said: " On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively require. Its vast extent afforded an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a x^eople over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difflculty in cojivincing themselves that they made ample compensation to the inhabitants of the new by bestowing upon them civilization and Christianity in exchange for unlim- ited independence. But as they were all in pursuit of nearly the same object it was necessary, in order to avoid conflicting settlements and con- sequent 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 63 by wliose autliority, it was made, against all otlier European govern- ments, wLich title might be cousuiumated by xiossessiou. The exclu- sion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and estab- lishing 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 x^rescribed by the law of nations. Prior to 1799 numerous rival comx)anies or associations, maintained by Eussian capital, were engaged in trading with the native inhabit- ants residing on the coasts or islands of Bering Sea. Many com- plaints were made to the Emperor of cruelty and wrong practices by those associations toward the natives. The " promyshleniki," it was said, "could easily toke by force what they had not the means to buy, or what the natives did not care to sell." "Thus," says Bancroft, "foi many years matters were aUowed 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 mer- chants engaged in the fur trade, and some of them endeavored to rem- edy 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 aftairs arose the necessity recognized by the Russian Government of one strong company which " would serve on the one hand to perpetuate Russian supremacy tliere, and on the other woidd prevent many dis- orders and preserve the fur trade, the principal wealth of the country, affording i)rotection 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 wliicli. accoidiiiii' to tlie same report, "was granted full privi- leges, for a i^eriod of twenty years, on the coast of Northwestern America, beginning from latitude 55° north and including the chain of islands extending from Kamschatka northward to America and southward to Japan; the exclusive right to all enterprises, whether hunting, trading, or building, and to new discoveries, with strict pro- hibition from profiting by any of these pursuits not only to all parties who might engage in them on their own responsibility, but also to those who formerly had ships and establishments there, except those who have united with the new company." Bancroffs History of Alasla, 37.9; Ueport on Euss. 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 exclu- sive right granted to the Russian- American Company for twenty years was only to use and enjoy " in the above extent of country and islands all profits and advantages derived from hunting, trade, industries, and discovery of new lands." If the translation embodied in the Brit- ish Counter Case be the correct one, then the grant was of an " exclusive right to all acquisitions, industries, trade, establishments, and dis- covery of new countries" thronghout 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 in- terfere 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 par- ticular company taken under his protection, all the profits and ad- vantages to be derived from the business, trading, and industries conducted tcithin 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 i)art 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 Em^iire from the hunting and trading carried on by the Emperor's loyal subjects "^?^ 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 fiict 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 Eussian navigators of the north- eastern [northwestern] part of America, and of certain islands, and of the possession held in those localities by Russia, permits the company to have the use, (not of the northeastern seas, but) of all hunting grounds and establishments then existing "on the northeastern [northwestern] coast of America," from the fifty-fifth degree of latitude to Bering Strait, " and also on the Aleutian, Kurile, and other islands, situated in the Northeastern Ocean." And, as already stated, the exclusive right, granted to the company, as declared in section 10, was "to use and enjoy, in the above-described extent of country and islands, all profits and advantages derived from hunting, trade, industries, and discovery of new lands." In my judgment there is nothing in the record which even remotely sustains the theory that Russia intended, by the Ukase of 1799, to assert exclusive jurisdiction over, or any sovereign control of, the northeastern sea outside of territorial waters. The only jjurpose was Uj 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 1821 with Russia, said, in a letter to Mr. Adams that it " is, in its form, an act i)urely domestic, and was never notified to any foreign state with injunction to respect its j)rovisions." Ainerican State Papers, Foreign Relations, vol. 5, p. 461. '^OY, in ray 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, jirior to 1831, exclusive jurisdiction over the waters of Bering Sea or any exclusive rights in the seal fisheries in that sea, outside of territorial waters. 11492 5 This bringf? ns to an exaiiiination of tlio Ukase of 1S21, tlie ])rovdsioiis of wliich, as well as the iiegotiatious that arose fiom its promulgation, were the subject of extended comment by counsel. Between 179!) and 1831 the waters of Bering- Sea were visited by- vessels fiom various countries in charge of i^ersons engaged in the hunting of whales, and who also carried ou illicit and forbidden trade of diflterent kinds with tlie 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 sub- jects on the Aleutian Islands and on the northwest coast of America, appertainingunto Russia, is subjected,because of secret and illicit traffic, to oppression and impediments; and finding that the principal cause of these difficulties is the want of rules establishing the boundary for navigation along these coasts, and the order of naval communication as well in these places as on the whole of the eastern coast of Siberia and the Kurile Islands, we have deemed it necessary to determine these communications by specific regulations which are hereto attached. In forwarding these regulations to the directing senate, we command that the same be published for universal information, and that the proper measures be taken to carry them into execution." Those regulations are entitled ^^ Rules estahlMicd for the limits of navigation and order of communication along the coast of eastern Sibe- ria, the northwest coast of America^ and the Aleutian, Kurile, and other islands^ As given in the Cases of both Governments, they contain among other provisions, the following: "Sec.1. The pursuits of commerce, whaling, and fishery, and of all other industries, on all islands, ports, and gulfs, including the whole of the northwest coast of America, beginning from the Bering Straits, to the fifty first degree of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands, from Bering Straits to the South Gape of the Islands of Urup, viz: to the 45'^ 50' northern latitude, is exclusively granted to Russian subjects. " Sec. 2. It is therefore prohibited to all foreign vessels, not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. The trans- gressor's vessel is subject to confiscation, along with the whole cargo. 67 "Sec. 3. An exception to tliis rule is to be made in favor of vessels carried tliitlier by heavy gales or real want of provisions and unable to make any otber 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 i^avy. •'Sec. 4. Foreign merchant ships which, for reasons stated in the fore- going 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 tratKic or barter with the natives of the islands and of the northwest coast of America in the whole extent above mentioned. A ship con- victed of any trade shall be confiscated. "Sec. 25. In case a ship of the Russian Imperial ISTavy, or one be- longing 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. S. Case, Vol. I, p. J6. In Mr. Blaine's letter of June 30, 1890, to Sir Julian Pauncefote, there is a translation of sections 1 and 2 of this Ukase that differs somewhat (though not, in my opinion, materially) from the translation of the same sections given inthe Cases of the two Governments. The translation followed by Mr. Blaine is as follows: "Sec. 1. The transaction of commerce and the pursuit of whaling and fishing, or any other industry on the islands, in the harbors and inlets, and, in general, all along the northwestern coast of America from Bering Strait to the fifty-first parallel of northern latitude, and like- wise on the Aleutian Islands and along the eastern coast of Siberia, 68 and on tlie Kiuile IsLnuLs; tliat is, ftoiii P>criiig Straits to the south- ern promontory of the Island of Uru]), viz, as far south as latitude 45° 50' north, are exclusively reserved to subjects of theKussian Government. "Sec. 2. Accordingly, no foreign vessel shall be allowed either to put to shore at any of the coasts and islands under Eussian dominion, as specified in the preceding section, or even to a]>proach the same to. within a distance of less than 100 Italian miles. Any vessel contravening this provision shall be subject to confiscation with her whole cargo." TJ. 8. Case, Vol. 1, App., 224, 226. Does the Ukase of 1riuciples of the whole negotiation. It is not on our part essentially a negotiation about limits. It is the demaiul of the rej^eal 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 jiart of Russia. We negotiate about territory to cover the remonstrauce n^on principle. But any attempt to take undue advantage of this voluntary facility we must oppose. If the present ^projeV is agreeable to Russia, we are ready to conclude and vsign the treaty. If the territorial arrangements are not satis- factory, 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 owu interests ugaiust tlie possibility of its future operation." British Case, Vol. 2, Ax>p., 73. The opiiositioii of Great Britain to Eussia's claim of maritime su- premacy 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 irrele- vant to the present discussion, because, as will presently appear, its counsel insists that Eussia'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 Eussia, with the knowledge of the United States, to mean. Eeferring to the reasons assigned by M. Poletica upon which Eussia based the territorial and maritime claims asserted in that Ukase, Mr. Adams, the American Secretary of State, said, in reply: "This pre- tenvsion 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 aboriginalnativesof the northwest coast of America, without the terri- torial jurisdiction of other nations, even inarms 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 Eussia ; and, although general complaints have occasionally been made on the subject of this commerce by some of your predecessors, no specific ground of charge has ever been alleged by them of any transaction in it by which the United States were, by the ordinary laws and usages of nations, bound either to restrain or punish. Had any such charge been made, it would have received the most pointed attention of this Government, with the sincerest and firmest disposition to perform every act and obligation of justice to yours which could have been required. I am commanded by the President of the United States to assure you that this disposition will continue to be entertained, together with the earnest desire that the harmonious relations between the two countries may be i^reserved. 81 Eelylng upon the assurance in your note of similar dispositions recip- rocally entertained by His Imperial Majesty towards the Uuitea States, the President is persuaded that the citizens of this Union will remain unmolested in the prosecution of their lawl'ul commerce, and that no effect will be given to an interdiction manifestly iucomx^atible 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 origi- nating 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 estahlishing limits to tlie maritime jurisdiction on their coasts, such as should secure to the Russian American Fur Company the monopoly of the very lucrative traffic they carry on. In order to do this they sought a precedent and found the distance of 30 leagues named in the treaty of Utrecht, and which may be calculated at about 100 Italian miles, sufficient for all purposes. I replied ironically that a still better l^recedent might have been i)ointed 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 ditfcreut 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 Emj)eror M'ithout 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 pre- tensions of the Imperial Government extend to an exclusive territorial 11492 6 82 jarisdictiou 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 tlie 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 tliese claims. Their right of navigation and of fishing is per- fect, and has been in constant exercise from the earliest times, after the peace of 1783, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, 'so far as Kussian rights are concerned, are con- fined to certain islands north of the fifty-fifth degree of latitude, and have no existence in the continent of America." if. S. Case, Vol. i, Ap2y., 14:1. As tending further to show the construction placed by the United States upon the Ukase of 1821, and its decided opposition to the pre- tensions of Russia, reference may be made to the letter of Mr. Adams, written under date of July 23, 1823, to Mr. Rush, the American minister at Loudon. In that letter Mr. Adams said: "By the Ukase of the Emperor Alexander of the 4th (16th) of September, 1821, an exclusive territorial right on the northwest coast of America is asserted as be- longing to Russia, and as extending 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 answered in his letters of February 28 and April 2, 1822, by alleging first discovery, occupancy, and uninterrupted possession. It appears ujDon examina- tion 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 necessary consequence of this state of things will be that the American continents henceforth will no longer be subjects of coloniza- tion. Occupied by civilized independent nations, they will be accessible to Europeans and to each other on that footing alone, and the Pacific Ocean m 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 gatiou of their rivers will belong to each of the American nations within its own territories. The application of colonial principles of exchisiou, 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 Euro- pean nation. Their own settlements there, when organized as terri- torial governments, will be adapted to the freedom of their own insti- tutions, and, as constituent parts of the Union, be subject to the prin- ciples 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 jS"ew Archangel, they may fairly claim the advantage of a free trade, having so long enjoyed it unmolested, and because it has been and would continue to be as advantageous at least to those settlements as to them. But they will not contest the right of Russia to prohibit the traffic, as strictly confined to the Russian settlement itself and not extending to the original natives of the coast." TJ. 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 ter- ritory on the northwest coast of America than it had title to, either by discovery or occupancy, and that its interdict of the approach of for- eign 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: "Art. 1. It is agreed that in any part of the Great Ocean, com- monly 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 tlie 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 tliat tlie citizens of tlie United States sliall not resort to any point wliere tliere is a Eussian establislinient, witliout tlie per- mission of tlie Governor or Commander; andtliat, reciprocally, tbe sub- jects of Kussia sliall not resort, without permission to any establish- ment 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 Amer- ica, 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 Eussian subjects, or under the authority of Eussia, 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 Avliich may belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance what- ever, the interior seas, gulfs, harbors and creeks, upon the coast men- tioned in the preceding Article, for the purpose of fishing and trading with the natives of the country." V. S. IStat. vol. 8, p. 302. The negotiations between Eussia 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 sub- jects of His Britannic Majesty shall not land at any place where there may be a Eussian establishment, without the permission of the Gov- ernor or Commandant; and on that other hand, that Eussian 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 cf America to the Northwest, shall be drawn in the manner following: 85 Commcncirig from the southernmost point of the island called Prince of Wales Island, which point lies in the j)arallel 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 (Merid- ian 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 stril^es the fifty-sixth degree of north latitude; from this last mentioned iDoint the line of demarkation shall follow the summit of the mountains situated parallel to the coast, as fur as the point of intersec- tion 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 i)ro- longation as far as the Frozen Ocean, shall form the limit between the Eussian and British possessions on the continent of America to the Northwest. "IV. With reference to the line of demarkation laid down in the pre- ceding article it is understood : First. That the Island called Prince of Wales Island shall belong wholly to Eussia. Second. That wherever the summit of the mountains which extend in a direction parallel to the coast, from the fifty-sixth degree of north latitude to the point of intersection of the one hundred and forty-first degree of west longitude, shall prove to be at the distance of more than ten marine lejigues from the ocean, the limit between the British posses- sions and the line of coast which is to belong to Eussia, as above men- tioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of ten marine leagues there- from. " V. It is moreover agreed, that no establishment shall be formed by either of the two parties within the limits assigned by the two pre- ceding articles to the possessions of the other; consequently, British subjects shall not form any establishment either upon the coast, or upon the border of the continent comprised within the limits of the Eussian possessions, as designated in the two preceding articles; and, in like manner, no establishment shall be formed by Eussian subjects beyond the said limits. " VI. It is understood that the subjects of H ; Hritannic Majesty, from whatever quarter they may arrive, whether from the ocean, or from 86 the interior of tlie continent, sliall forever enjoy tlie right of navigating freely, and without any hindrance whatever, all the rivers and streams which, in tlieir course towards the Pacific Ocean, may cross the line of demarkation upon tlie 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 lib- erty 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 con- vention. 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 ai)ply to the trade in spirituous liquors, in fire-arms, or other arms, gunpowder or other warlike stores; the high contracting Parties reciprocally engag- ing 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 Eussian vessel navigating the Pacific Ocean, which may be compelled by storms or by accident, to take shelter in the ports of the respective Parties, shall be at liberty to refit therein, to provide itself with all necessary stores, and to put to sea again, without paying any other port and lighthouse dues, which shall be the same as those paid by national vessels. In case, however, the master of such vessel should be under the necessity of disposing of a part of his merchandise in order to defray his expenses, he shall conform him- self 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 fisliing in, any part of the Pacific Ocean, or in landing on the coasts of either country, not then occupied, in order to trade with the natives, except under certain specified conditions which have no bearing upon the present controversy. 87 We now come to the third point in Article vi of the Treaty — Was the body of ivater now Tcnown as the Bering Sea included in the phrase '■'Facific Occan,^^ as used in the treaty of 1825 hetiveen Great Britain and Bussia; 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 elfect that the treaty of 1825, as between Eussia and Great Britain, had reference only to the dispute in respect to the bound- ary line between those countries on the northwest coast of America, south of the GOth degree of north latitude, and to the waters of the Pacific Ocean south of the Alaskan Peninsula, and in no way to the waters of Bering Sea, or to the Ukase of 1821 in its application to the waters of that Sea. If that i^osition 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 valid- ity of the Ukase of 1821 in its application to the waters of Bering Sea, for the distance of 100 Italian miles from its shores and islands in that sea. But if "Pacific Ocean" in the treaty of 1825 embraced Bering Sea, it would follow that that treaty had the effect to annul or withdraw that Ukase, so far as it asserted authority in Eussia 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 1821 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 Eussia and the United States. Mr. George Canning, in his letter of December 8th, 1821, referring to a projet proposed by Great Britain, and which Eussia rejected, and to a counter projet proposed by Eussia which Great Britain had rejected, said that the stipulation for free' navigation in the Pacific stood in the front of the Convention concluded between Eussia and the United States of America J that no reason existed why upon similar claims Great Britain 88 slioultl not obtain exactly the like satisfaction; that for reasons of the same nature Great Britain could not consent that the liberty of navi- gation through Bering Straits be stated in the treaty as a boon from llussia; 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, lie said, was found in the Con- vention 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 ''in-ojeV and 'counter projeV 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. Eussia can not mean to give to the United States of America what she withholds from us; nor to withhold from us any- thing that she has consented to give to the United States. The uni- formity of stipulations in pari materia gives clearness and force to both arrangements, and will establish that footing of equality between the several contra(;ting parties which it is most desirable should exist between three powers whose interests come so nearly in contact witli each other in a part of the globe in which no other power is concerned." British Case, Vol. 2, ylpp.,73. In view of these and similar declarations by British representatives, made before the negotiation of tlie treaty of 1825, it is earnestly con- tended that that Ireaty must receive the same interpretation that would be given to the treaty of 1824 as construed by Eussia and the United States. And it is said that Eussia and the United States, before the ratification of the treaty of 1824, substantially agreed that that treaty (lid 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 oontentions, in respect to the treaty of 1824, are based, may be thus summarized: The treaty of 1824 was signed at St. Petersburg April 5 (17), 1824. 89 Sliortly thereafter the Eussian-Ariieiican Coinpany represented to the Eussian Government that conseqnences injurious to its rights might result from its ratification. The subject was referred by the Emperor to a committee, at the head of wliich was Count Nesseh'ode. Tliat committee, July 21, 1824, made a report, wiiich received the approval of the Emperor. After enumerating the advantages that would accrue to Eussia from carrying out the treaty, the report proceeds: "7. That as the sovereignty of Eussia 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, Eussia has established permanent settlements, not only on the coast of Siberia but also on the Aleutian group of islands; hence, x\merican subjects could not, by virtue of the second article of the treaty of April 5-17 land at the maritime places there, nor carry on sealing and fishing without the permission of our commandants or governors. Moreover, the coasts of Siberia and the Aleutian Islands are not washed by the Southern Sea, of which alone mention is made in the first article of the treaty, but by the Northern Ocean and the seas of Kamchatka and Ohkotsk, which form no xjart of the Southern Sea on any known map or in any geography. 8. Lastly, we must not lose sight of the fact that, by the treaty of April 5-17 all the disputes to which the regulations of September 4 (16), 1821, gave rise, are termi- nated, which regulations were issued at the formal and reiterated request of the Eussian- American Company; that those disputes had already assumed important proportions, and would certainly be renewed if Eussia 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 pre- vention of any incorrect interpretation of that act, Gen. Baron Tuyll may be instructed at the proper time to make the declaration men- tioned 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 tliat the right of free hunting and Ashing- granted by the twelfth article of the said treaty shall extend only from 54° 40' to the latitude of Cross Sound." U. 8. Counter Case, 156, 157. This report was communicated by the Eussian Minister of Finance to tlie Eussian-Americau 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 com- pany, 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 Yakutat (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 Secre- tary 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 fol- lows: ^^6th, Monday. — Baron Tuyll, the Eussian 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 Eussian American Company, upon learning the purport of the northwest coast convention, concluded last June byMr.Middleton, were extremely dissatisfied ("a jete des hauts cris"), and by means of their influence had prevailed upon his Government to send him these in- structions upon two points. One was, that he should deliver, upon the exchange of the ratifications of the convention, an explanatory note, purporting that the Eussian 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 me a minute iu writing. 91 "I told him that we should be disposed to do everything to accommo- date the views of his Government that was in our power, but tliat a modification of the convention could be made no otherwise than by a new convention, and that the construction of the convention as con- cluded belonged to other departments of the Government^ for which the Executive had no authority to stipulate; that i1 on the exchange of the ratifications he should deliver to me a note of the purport of that ichich 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 7ipon the courts nor upon this nation. I added that the convention would be submitted immediately to the Semite; that if anything- affecting its construction, or, still more, modifying its meaning, were to be presented on the part of the Eussian 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 tliere were, who might wish to defeat the ratification itself of the convention. This was an object of great solicitude to both Govern- ments, not only for the adjustment of a difficult question which had arisen between them, but for the i^romotion 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 per- mit me to suggest to him what I thought would be his best course, it would be to wait fortlie exchange of the ratifications andmakeit purely and simply ; that afterwards, if the instructions of his Government were imperative, he might present the note, to tvhich I now informed him tvhat 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 under- standing 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, and it was wisest not to put 92 such fancies into their heads. At least, the Imperial Government might wait to see the operation of tbe convention before taking any further step, and I was confident they would hear no complaint result- ing from it. If they should, then would be the time for adjusting the con- struction 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 Emi)eror. " The Baron said that these ideas had occurred to himself ; that he had made this application in pursuance of his instructions, hut he was aware of the distribution of powers in our Constitution and of the incompetency of the Executive to adjust questions. He would, there- . fore, 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 sub- ject. He therefore requested me to consider what had now passed between us as if it had not taken place (" nou 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 Quimy Adams, Vol. 6, p. 435. In conformity (it may be assumed) with Mr. Adams' advice or inti- mations 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: " 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 ineans 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 lue stipulations agreed upon, for tlie 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 Kam- schatka, or Northern Ocean. "It is not the intention of Eussia to impede the free navigation of the Pacific Ocean. She would be satisfied with causing- to be recog- nized, as well as understood and placed beyond all manner of doubt, the ininciple that beyond 59° 30' no foreign vessel can apjiroach her coasts and her islands, nor fish nor hunt within the distance of two marine leagues. This will not i)revent the recei^tion of foreign vessels which have been damaged or beaten by storm." U. S. Case, Vol. 1, A})i).^ 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 afiect 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 Eussia's construction of the treaty would be if, unhappily, any difterence as to its meaniu"- should arise between the two governments. But Mr. Adams' friendly intimation removed all danger of dispute, for it conveyed to Eussia the assurance that the treaty as negotiated contained, in eflfecjt, the pro- visions which the Eussian note was designed to supply. From that time until Alaska, with all its rights of land and water, was trans- ferred to the United States — a period of forty-three years — no act or word on the part of either government ever imj)eached 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 Eussia and England (ending in the treaty of 1825) were in progress in St. Petersburg. The instructions to Baron Tuyll concerning the Eussian-American treaty were fully reflected in the care with which the Anglo-Eussian 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 Eussian 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 Eussia in 94 1825, and can, thorefore, quote the Anglo Russian treaty with the utmost confidence that its meaning can not be clianged from that clear, unmis- taliable text wliicb throughout all the articles sustains the American contention. The Explanatory Note filed with this Government by Baron Tuyllis so plain in its text that after the lapse of sixty-six years the exact meaning can neither be misapprehended nor misrepresented. It draws the distinction between the Pacific Ocean and the waters now known as the Bering Sea so particularly and so perspicuously that no answer can be made to it. It will bear the closest analysis in every particular. It is not the intention of llussia 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 nortliwest coast of America to 59° 30' north latitude — that is, down to 59° 30', the explanatory note reckoned from north to south — and the Aleutian Islands are positively excepted from the liberty of hunting, fishing, and commerce, stipulated in favor of citizens of the United States for ten years." U. S. Case, Vol. I, App., 377, 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 justi- fied by the facts as disclosed by the Russian documents and by the Diary of Mr. Adams. Recurring to the treaty of 1824, it will be remembered that Article 1 secured to the respective citizens and subjects of the contracting powers freedom of navigation and fishing in every part of the Great Ocean commonly called the Pacific Ocean, or South Sea, and also the right to resort to coasts upon points not then occupied for the jjurpose of trading with the natives, subject to or saving the restrictions and conditions prescribed in the succeeding aricles. Among those con- ditions M^ere: 1. By Article II, citizens of the United States should not resort to any i^oint 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 Eussian subjects or under the authority of Russia south of the same parallel. But by Article LY it was provided that for a period often years the ships of either country might frequent the interior seas, gulfs, harbors, and creeks, upon the coast mentioned in the pre- ceding article, for the purpose of fishing and trading with the natives of the country. ISTow it is apparent from the proceedings of the ISTesselrode confer- ence of July 21, 1824, the Diary of Mr. Adams, and the Exjilanatory Kote of Baron Tuyll, that the Russian-American Company were not at all disturbed by tlie broad recognition in Article I of freedom of navi- gation 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 mid 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 III, which was the coast most in dispute between the two countries, and, therefore, did not authorize citizens of the United States to trade on the coasts of Siberia 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 north- west coast of America, but only to the coasts, embracing the territory in disj)ute between the two countries, south of 59° 30' north latitude. Nowhere in the documents referred to is there a suggestion that Rus- sia understood the treaty of 1824 as reserving to itself any peculiar or paramount authority over the waters of the Pacific Ocean outside of the ordinary limit of territorial jurisdiction. The only part of any docu- ment 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 ISTesselrode 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 Tayll excej)t 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 Paciiic 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 TaylPs interpretation of the treaty of 1821. 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 ratificatioas, 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 judi- ciary tribunals, the Executive Government, even if disposed to acqui- esce in that of the Eussian 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 Amer- ica between the executive and judicial departments of Government. So that the utmost that can be said is, that the United States had notice, before the ratidcation 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 x>lace 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 pub- lished or brought to liglit from the files of the State Department of the United States until it was produced in this case. Nor is it pre- tended 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 representa- tive at Washington, written August 2, 1824, to Mr. George Canning. Mr. Addington said: "A convention concluded between this Government and that of Kussia for the settlement of the rcspectivQ (;laima of the 97 two nations to the intercourse with tlie northwestern coast of America reached the Department of State a few clays 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 unre- stricted intercourse by each nation with all the settlements of tlie other on the northwest coast of America, and (2) a stipulation that no new settlements shall be formed by Eussia 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 Kussia in his celebrated Ukase of 1821, but virtually, if not expressly, re- nounced 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 record- ing that renunciation as unnecessary and supererogatory." British Case, Ajpp. Vol. 2, j). 66. It is to be observed, in reference to this letter, that it was written many months i)rior to the interview with Baron Tuyll, and only a few days after the treaty of 1824 had reached the United States Depart- ment 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 Eussia 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 Avill be remembered, at the very outset of the negotiations between Eussia and the United States, expressly waived the question of the right of Eussia 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 Eussia'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, by M. Poletica, had not been specifically disposed of by that treaty. He could not have said that the right of the subjects and citizens of the two countries to freely navigate and fish in the open waters of the sea was left untouched by the treaty of 1824. 11492 7 98 That Great Britain signed the treaty of 1825 witliont 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: "Eeferring to the American treaty, I am assured as well by Count Nesselrode as by Mr. Middleton [the American minister at St. Peters- burg] that the ratification of that instrument was not accompanied by any explanations calculated to modify or afJect 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 pos- sessions, and understood by the American envoy as having no such effect, was drawn up and signed by both parties. No reference what- ever was made to this paper by the Russian iilenipotentlaries 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 acceiitation of the terms in wliich they are expressed." It does not ajipear that any such protocol was ever, in fact, executed 5 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 considera- tions might possibly arise than those which must determine that ques- tion under the treaty of 1825 with Great Britain. Here the inquiry is wliether Great Britain and Russia in that treaty referred to "Pacific Ocean" as including Bering Sea. And tlmt inquiry can only be deter- mined, 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 whicli the only evidence is found in the letters and official documents having rei'erence 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 i)art of the Great Ocean com- monly called the Pacific Ocean, either in navigating the same or in fishing therein," should be applicable to Bering Sea? Did either Gov- ernment 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 Ber- ing Sea and thereby recognize the right of Eussia 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 pos- sessions of Eussia ^' extend on the northwest coast of America from the Bering Strait to tlie 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 Eussia based the Ukase of 1821, he stated that the first discoveries of Eussia 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 Eussian possessious by the Ukase of 1821, M. Poletica states that "the Eussian possessions in the Pacific Ocean extend on the northwest coast of America from Bering Strait to the fifty-first degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the forty-fifth degree." It thus appears that Eussia, by its repre- sentatives, 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 any- thing indicating that, in its judgment, Bering Sea was not a i)art of the Great Ocean commonly called the Pacific Ocean, or that its Gov- ernment 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 Kussia. On the contrary, in the xjrojet 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 con- templated 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 tvithin Bering Straits, and shall be neither troubled nor molested in carrying on their trade and fisheries, in all parts of the said ocean, either to the northward or southward thereof; it being well understood that the said right of fishery shall not be exercised by the subjects of either of the two powers nearer than two marine leagues from the respective possessions of the other." In his letter inclosing this projet to Sir Charles Bagot, the British minister at St. Petersburg, Mr. Canning said: "Your Excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first is the assumption of the base of the mountains, instead of the summit, as the line of boundary; the second, the extension of the right of the naviga- tion 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\ Eussia 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 lias been and is still employed in enterprises inter- esting not to this country alone, but to the whole civilized world. The protection giv^en by the convention to the American coasts of each power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other, if not in the form now prescribed, the free navigation of Bering's Straits and of the seas beyond them must be secured to us." British Case, Vol. 3, App. 65. Of course Mr. Canning, when he framed the above draft of a conven- tion regarded the waters immediately south of "the sea within Ber- ing 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 counter-^^roje^ of a convention, to settle, "according to the principle of mutual accommo- dation, the boundary between their possessions and settlements on tlie northwest coast of America, as well as divers questions relating to commerce, navigation, and fishing by their resjiective 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 j^ears " to freely frequent the gulfs, harbors, and creeks in those parts of the islands and of the coast which are not occupied by either Russian or English settlements, and there to engage in fishing and commerce with the natives of the country," the Russian couuter-projet proceeds: "Art. IV. In future no settlement shall be formed by His Britannic Majesty's subjects within the limits of Russian possessions set out in Articles I and II, and, in like manner, none shall be formed by the subjects of His Majesty the Emperor of all the Russias outside of the said limits. Art. Y. The High Contracting Parties stipu- late moreover, that their respective subjects will have the right to freely navigate the tohole extent of the Pacific Ocean, both towards the north and south, without any liindrance whatever, and that they will enjoy the right of fishery in the high seas, but that this latter right shall never be exercised \?'ithin a distance of two marine leagues from the coast or possessions — whether Russian or British. Art. VI. His Majesty the Emperor of all the Russias, being anxious to give a special proof of his regard for the interests of His Britannic Majesty's subjects, and to 102 render more useful the success of tlie enterprises which will eventually result in the discovery of a i)assage on the north of the American conti- nent, consents that the freedom of navigation mentioned in the preced- ing article shall apply, under the same conditions, to Bering Strait, and to the sea situated to the northward of said strait. Art. VII. Any itussian or British ships navigating the Pacijio Ocean and the sea above mentioned tliat 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 neces- sary, and to sail away again freely, without paying any other charges than port and lighthouse dues, which shall bo the same as those paid by national vessels." British Case, Vol. 5, App., 68, 69. Is it not apparent from this cowwU^.v -projet that Russia regardod 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 jjart 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 couwiox-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 i)urpose to make such a dis- tinction ought not to be imjDuted to Russia. It ought not to be sup- posed 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 sui^position is entirely inconsistent with the declaration in the counter -^roje^ that the treaty whicli the two govern- ments were seeking to negotiate had in view the settlement of ques- tions 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 Rus- sia, 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 ail ocean of iininensured extent." It withdrew its oifer to establish "an exclusive fishery of two leagues from the coasts" of the respective countries, and suggested that one league to each i)ower on its own coasts, as recognized by the law of nations, would suflice and was all that she would admit. Not long- after this letter of December 8, 182-1, the treaty between E,ussia and Great Britain, in the form above given, was signed. Mr. Sti'atford 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 naviga- tion 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 declare, then our finding- will, in eftect, be a declaration that although Great Britian, dur- ing- 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 . related to Bering Sea, more than 1,000 miles in length and more than 1,200 miles in width j and this notwithstanding in no i)art of the voluminous correspondence preceding the treaty of 1825 is there one word that expressly, or by necessary implication, indicates any x)ur- pose 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 sco])e and effect of the treaties of 1821 and 1825. The evidence is conclusive that Russia — whatever may have been em- bodied in the proceedings of the Nessdrode conference after the treaty of 1821 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 tbe citizens of G-reat Britain and America entire freedom of navi- gation and rights of fishing throughout the whole of Bering Sea, out- side of territorial waters. In Tickmenief 's "Historical Eeview of the formation of the Kussian American Company and their proceedings to thepresent time", published at St. Petersburg in 1863 {Part I, pp. 130-139), it is said: "In 181L> 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 cor- roboration 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- nikofif, the commander of the company's ship IS'asliednik Alexander, who stated that, on a voyage from Sitka to Okhotsk, he had hailed a whaler flying the American flag. The master informed him that he had come from the Sandwich Islands in company with thirty other ships to whale on both sides of the western extremity of the peninsula of Alaska and the eastern islands of the Aleutian group belonging to that peninsula, and that as many as 200 whalers were coming from the United States the same year. Captain Kadnikoff also ascertained from the master that in 1811 he had whaled in the same waters in company with fifty other shijis, and that his ship secured thirteen whales, from which 1,000 barrels of oil were obtained." British Case, Vol. 1, Apj)- 40. In reply to an application by the Russian American Company to i^re- vent the Americans from fishing in the waters of the colony, the Eus- sian foreign office, in 1812, said: "The claim to a mare clausu»i, if we wi.shed 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, Avhich 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, 1813, No. 5191, Dielo. Arlch. Kom., 1842, goda, Mo. 14, str. 7. British Case, Vol. 1, A]^p. 40. 105 Again, in 1s, remain for a few weeks with the bulls l)y whom they have been ai)])ropriated. They go from the islands into the sea as often as nature suggests -to be necessary for the purpose of obtaining Hsh for food by which they are nourislied while suckling their young. A cow, while nursing its puji, often goes long distances from the islands in search of fish. Capt. Shepard, of the United States Marine service, who examined tlie skins taken from sealing ves- sels seized in 1S87 and 1889, over 12,000 in number, two thirds or three- fourths being the skins of females, says: " Of the females taken in the Pacific Ocean, and early in the season in Bering Sea, nearly all are heavy with young, and the death of the female necessarily causes the death of the unborn pup seal; in fact, I have seen on nearly every vessel seized the pelts of unborn pups which had been taken from their mothers. Of the females taken in Bering Sea nearly all are in milk, and I have seen the milk come from the carcases of dead females lying on the decks of sealing vessels which were more than 100 miles from the Pribilof Islands. From this fact, and from the further fact that I have seen seals in the water over 150 miles from the islands during the summer, I am convinced that the female, after giving birtli to her young on the rooker- ies, goes at least 150 miles, in many cases, from the islands in search of food." liobert 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, thongh these are chiefly found on the banks along the coast of the Aleutian Islands. In the Canadian Fisheries Report of 1880, it is stated that of the seals taken that year, "the greatest number Avere killed in Bering Sea, and were nearly all cows or female seals;" and in the report of 1888, that " over GO per cent of the entire catch of Bering- Sea is made up of female seals." The record is full of similar evidence. 6. Upon returning from her search for food the mother seal hunts up her pup, and will refuse her milk to the pup of any other cow. An intelli- gent 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 fre- quently, and usually return to the si)otor its neighborhood, where they leave their pups crying out for them and recognizing their individual 116 cries, tliongli ten thousand Jirouud all together should bleat at once, Tliey 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 sbe has been to wash, and i)erhaps to feed for the last day or two, about wliere she thinks her pup should be, but misses it, and iinds 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 thou- sands, 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 reqidre 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, aud passes hurriedly on until she meets her ow"n, which she at once recognizes. After caressing liiui she lies down and allows him to suck and often falls into a sound sleep very quickly after." If the mother seal is killed while out at sea in search of fish for food, her pup, left behind on the islands, and requiring the milk of its mother for eight weeks or more after its birth, will die from starvation. This fact is placed beyond dispute by the evidence, and is not, I think, seriously questioned. The pups do not take to swimming naturally. They are enticed or forced by their mother, from time to time, into the water and taught to swim. If a pup, by accident, is born in the sea, it will immediately 117 sink and bo drowned. As already stated, tlie race is botli oonceived and comes into existence on land, and from the necessities of its physi- cal natnre must abide npon 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 difQculty of going into the sea for fisli food, the herd begins to leave tlic 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 tiie coasts of California and Oregon. The bulls do not go so far south, and do not accomx)any 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 tlirough the passes of the Aleutian Ishiuds into the Pacific Ocean and back to their land home on those islands, is well known to sealers and navigators. 8. While on the islands they are subject to the control, for every practical or commercial purpose, of those who are there by the authority or license of the United States. Credible witnesses, faniiliar 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 U may he desirable to take for commercial 'purposes, can he 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 Ivcservation, to be used exclusively by these animals as their breeding grounds, it could take substantially 118 the entire herd, in any one breeding- sejvson, and put the proceeds of the sale of their skins into its treasury. 9. Neither in Bering Sea, nor in the North Pacific Ocean, does the Pribilof lierd 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 Green- wich, and very few have ever been seen so far west. This fact is conclusively established by the evidence, and is recognized in the separate re])orts made by the commissioners who were appointed by the two governments (two by each g'overnment) to investigate and make report upon the facts having relation to seal life and the meas- ures necessary for its i)roper protection and preservation. The American Commissioners, Profs. Merriam and Mendenhall, in their separate report made under the authority of the treaty between the two governments, say: " The fur seals of the Pribilof Islands do not mix with those of the Commander and Kurile Islands at any time of the year. In summer the two herds remain entirely distinct, se