ARGUMENT ON BEHALF OF THE UNITED STATES BEFORE THE TRIBUNAL OF ARBITRATION CONVENED AT PARIS, 1893, UNDER A TREATY BETWEEN GREAT BRITAIN AND

THE UNITED STATES.

STATEMENT.

The tribunal of arbitration which convened at Paris in 1893 was charged by treaty with the determination of certain questions concerning the jurisdictional rights of the United States in the waters of Bering Sea. The immediate controversy arose out of the seizure and condemnation, in 1886, of three British vessels engaged in pelagic sealing, in violation of the laws of the United States.

Since the principal facts relating to seals and to seal life are discussed in the course of the following argument, it will suffice to state, by way of introduction, that the seals which make the Pribilof Islands their summer home roam the Pacific Ocean from October to May in search of food. In the early spring they start northward, and by the month of May are found in great numbers on the shores of the Pribilof Islands. They congregate on low patches of ground near the shore, in what are called "rookeries." In these rookeries they separate into families or harems. The first seals to arrive on the islands in the spring are the bulls, who come early in order to secure the best places on the rookeries, nearest the beach. When they first come ashore, they are stored with a thick layer of blubber, from which they derive their sustenance for three months; for, from his arrival, in May, until his departure. in the autumn, the bull seal does not feed. Soon after the "cow," as the female seal is termed, reaches the islands, she gives birth to an offspring, called a "pup." These pups, at an early age, congregate and live on the rookeries in crowded swarms. The younger males, known as "bachelors," do not live on the rookeries, but on what are called the "hauling grounds." It is from these hauling grounds that the bachelors, which, according to the methods of legitimate sealing, are the "killable" seals, are driven to the killing fields. After nursing her offspring for a short period, the cow returns to the sea for food. In a few days she comes to land again to feed her pup. It is at this time that the pelagic sealer makes his appearance, and begins the slaughter of seals in the open sea. The pelagic sealing season opens at the time that the cows are out in the sea in search of food. Consequently, the catch is made up almost entirely of females, whose death means the starvation of a corresponding number of pups. Furthermore, at least one-fourth of the seals killed or fatally wounded by pelagic sealers are not recovered. Pelagic sealing is therefore plainly destructive of the stock. It cannot be carried on without encroaching pro tanto upon the normal numbers of the herd, and, if prosecuted to any considerable extent. inevitably leads to extermination.

The negotiations leading to the arbitration may be briefly noticed. The seizures mentioned brought a prompt protest from the British government, the ground of objection being that they involved an attempt to enforce a municipal law of the United States upon the high seas. Mr. Bayard, then secretary of state, in reply to the protest. avoided discussion of the grounds mentioned by the British authorities, and suggested that the case was one of a peculiar property inter

est, warranting the exercise of an exceptional marine jurisdiction; that it would avoid a useless, and, perhaps, an irritating and abortive, discussion of the question of right, if the attention of nations could be called to the great fact that here was a useful race of animals, an important blessing to mankind, threatened with extermination by certain practices, and that, therefore, it should be the duty, as it was certainly the interest, of all nations to join pacifically in regulations designed to prevent the mischief. These pacific proposals of the American secretary were received in a friendly spirit by Lord Salisbury, the British secretary for foreign affairs, and an agreement was substantially concluded, which would have been carried into effect but for the objection interposed by Canada. So far as appears, no different scheme, no modified suggestion, designed to carry out the same object, was ever formulated by the government of Canada, which remained in a position of simple protest to any scheme of prohibition such as had been presented. In consequence of that objection there was a cessation apparently final, of negotiations.

The second stage of the controversy opened with the energetic measures of the administration of President Harrison. Proclamations designed to prohibit pelagic sealing were issued, instructions were given to American cruisers to enforce the law, and British vessels were again seized. In consequence of the renewal of the protests of Great Britain, Mr. Blaine, then secretary of state, addressed a communication to Sir Julian Pauncefote, the British ambassador at Washington, under date of January 22, 1890, in which, for the first time, the grounds upon which the United States defended their action in making these seizures in Bering Sea were fully stated. In substance, these grounds were that the United States was carrying on an industry in connection with these seals, caring for them, taking the natural increase from the herd, and preserving the stock on the Pribilof Islands; that this was an industry advantageous not only to its lessees, but, what was of much more importance, advantageous to mankind; that the pursuit of pelagic sealing threatened that industry with destruction, and was essentially and absolutely wrong, and should not be permitted; that, therefore, the United States had a right to prevent it, when, added to its essentially destructive and illegitimate character, it had this injurious effect upon a special industry and right of the United States. In other words, Mr. Blaine took the position, first, that, from the point of view of international morality, pelagic sealing was wrong, and, second, that this circumstance furnished to the United States a ground upon which, in time of peace, it might arrest and condemn a vessel engaged in the practice. Lord Salisbury, in his reply, rather avoided discussion of the ground thus taken by the United States, and, in the course of subsequent negotiations, succeeded in drawing Mr. Blaine, to some extent, away from his original position, and into a controversy over the matter of Russian pretensions in Bering Sea,-the effect of the ukase of 1821, the treaties of 1824 and 1825, and the exact meaning of the phrase "Pacific Ocean," as used in those treaties.

Proposals for arbitration were now considered and carried forward. The suggestion of a joint commission to investigate the facts was reduced to distinct points, and the various agreements were at last consolidated in a treaty, which was concluded at Washington February 29, 1892, and promptly ratified by both powers. In accordance with the terms of this treaty, commissioners were appointed by both parties. They visited Bering Sea, and made investigations. When, however, upon the termination of their labors, the two sets of commissioners came together, they found themselves unable to agree, except upon one or two limited conclusions. They agreed that the numbers of the herd of seals which made its home on the Pribilof Islands were in the Veeder II.-76.

course of diminution, that such diminution was increasing, and that it was in consequence of the hand of man. They were unable to go any further, and therefore the hopes of the two governments in being able to unite in a convention in respect to regulations, based upon an agreeing joint report of these commissioners, were disappointed, and it became necessary that the arbitrators should be called together.

In accordance with the terms of the treaty, the tribunal was constituted as follows: Mr. Justice Harlan and Senator Morgan, named by President Harrison; Lord Hannen and Sir John Thompson, named by Queen Victoria; Baron de Courcel, named by the President of the French Republic; Marquis Emilio Visconti Venosta, named by the King of Italy; and Mr. Gregers Gram, named by the King of Sweden and Norway. The precise questions to be determined by these seven arbitrators were specified in articles 6, 7, and 8 of the treaty. By article 6 it was provided:

"In deciding the matters submitted to the said arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to-wit:

“(1) What exclusive jurisdiction in the sea now known as the ‘Bering's Sea,' and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?

"(2) How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?

"(3) Was the body of water now known as the 'Bering's Sea' included in the phrase 'Pacific Ocean,' as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering's Sea, were held and exclusively exercised by Russia after said treaty?

"(4) Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering's Sea east of the water boundary, in the treaty between the United States and Russia of the 30th of March, 1867. pass unimpaired to the United States under that treaty?

"(5) Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Bering's Sea, when such seals are found outside the ordinary three-mile limit?”

By article 7 it was further agreed:

"If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur seal in, or habitually resorting to, the Bering Sea, the arbitrators shall then determine what concurrent regulations, outside the jurisdictional limits of the respective governments, are necessary, and over what waters such regulations should extend. The high contracting parties furthermore agree to co-operate in securing the adhesion of other powers to such regulations."

Article 8 provided for the submission of questions of fact involved in claims for damages sustained by either party, leaving the question of liability of either government, upon the facts found, for further negotiation.

Accordingly, the parties proceeded to frame their cases and counter cases, and to exchange them; and at length, on February 23, 1893, the tribunal convened at Paris, and organized by electing Baron de Courcel president. The United States was represented by the following_counsel: The Hon. E. J. Phelps, late minister to England, James C. Carter, Esq., of the New York bar, the Hon. Henry W. Blodgett, late judge

of the district court of the United States for the northern district of Illinois, and Frederick R. Coudert, Esq., of the New York bar. The counsel for Great Britain were Sir Charles Russell, Q. C., M. P., attorney general of England, Sir Richard Webster, Q. C., M. P., and Mr. Christopher Robinson, Q. C. The oral arguments on the merits of the controversy began on April 12th with the opening argument by Mr. Carter, covering the whole case on behalf of the United States. Mr. Coudert followed with an argument on the facts. The case of Great Britain was then argued by the three counsel representing that government, when the discussion was closed by Mr. Phelps' argument in reply, The oral arguments were concluded on July 8th. On August 15th the tribunal announced the award, as follows:

"We decide and determine as to the five points mentioned in article 6 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 Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine as follows:

"By the ukase of 1821, Russia claimed jurisdiction in the sea now known as the 'Bering Sea' to the extent of one hundred Italian miles from the coasts and islands belonging to her, but, in the course of the negotiations which led to the conclusion of the treaties of 1824 with the United States, and of 1825 with Great Britain, Russia admitted that her jurisdiction in the said sea should be restricted to the reach of cannon shot from shore, and it appears that, from that time up to the time of the cession of Alaska to the United States, Russia never asserted in fact or exercised any exclusive jurisdiction in Bering Sea, or any exclusive rights in the seal fisheries therein, beyond the ordinary limit of territorial waters.

"As to the second of the said five points, we, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine that Great Britain did not recognize or concede any claim, upon the part of Russia, to exclusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary territorial waters.

"As to the third of the said five points, as to so much thereof as requires us to decide whether the body of water now known as the 'Bering Sea' was included in the phrase 'Pacific Ocean,' as used in the treaty of 1825 between Great Britain and Russia, we, the said arbitrators, do unanimously decide and determine that the body of water now known as the 'Bering Sea' was included in the phrase 'Pacific Ocean,' as used in the said treaty.

"And as to so much of the said third point as requires us to decide what rights, if any, in the Bering Sea, were held and exclusively exercised by Russia after the said treaty of 1825, we, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine that no exclusive rights of jurisdiction in Bering Sea, and no exclusive rights as to the seal fisheries therein, were held or exercised by Russia outside of ordinary territorial waters after the treaty of 1825.

"As to the fourth of the said five points, we, the said arbitrators, do unanimously decide and determine that all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary, in the treaty between the United States and Russia of the 30th March, 1867, did pass unimpaired to the United States under the said treaty.

"As to the fifth of the said five points, we, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine that the United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary threemile limit."

As this determination left the subject in such a position that the concurrence of Great Britain was necessary to the establishment of regulations for the proper protection and preservation of the fur seals, the majority of the arbitrators submitted a scheme of regulations. Under article 8 of the treaty, the arbitrators found certain facts as proposed by the agent of Great Britain, and agreed to by the agent for the United States.

Thus closed this most important discussion. At an early point in the preparation of their case, the counsel for the United States became aware that it would be difficult to sustain the claims which had been put forward by the United States, in the diplomatic correspondence, as to the exclusive jurisdiction exercised by Russia over the waters of Bering Sea previous to the cession of Alaska. Notwithstanding, therefore, the earnest effort of the counsel for the United States to support, as far as possible, the position assumed by the diplomatic correspondence of their government, the decision of the tribunal on the first four points of article 6 was not unexpected. The main reliance of the American case was upon the fifth point of article 6. The momentous significance of this issue was clearly pointed out by the president of the tribunal in his closing address:

"We have felt obliged to maintain intact the fundamental principles of that august law of nations which extends itself, like the vault of heaven, above all countries, and which borrows the laws of nature herself to protect the peoples of the earth, one against another, by inculcating in them the dictates of mutual good will. In the regulations which we were charged to draw up, our work inaugurates a great innovation. Hitherto the nations were agreed to leave out of special legislation the vast domain of the seas, as in times of old. according to the poets, the earth itself was common to all men, who gathered its fruits at their will, without limitation or control. You know that, even to-day, dreamers believe it possible to bring back humanity to that golden age. The sea, however, like the earth, has become small for men, who, like the hero, Alexander, and no less ardent for labor than he was for glory, feel confined in a world too narrow. Our work is a first attempt at a sharing of the products of the ocean, which has hitherto been undivided, and at applying a rule to things which escaped every other law but that of the first occupant. If this attempt succeeds, it will doubtless be followed by numerous imitations, until the entire planet-until the waters. as well as the continents-will have become the subject of a careful partition. Then, perhaps, the conception of property may change among men."

The moral significance of the arbitration was fully sustained by the elevated tone of the proceedings. It was recognized that it was a victory for peace; an appeal to that law which, as Sir Charles Russell said, "has grown up in response to that cry of humanity heard through all time.-a cry sometimes inarticulate, sometimes drowned by the discordant voices of passion, pride, ambition, but still a cry, a prayerful cry, that has gone up through all ages, for peace on earth and good will amongst men." At the conclusion of Mr. Carter's argument the president of the tribunal said: "Mr. Carter. at the conclusion of this long and weighty argument, without presuming to express any opinion with reference to the merits of your case, I cannot refrain from ex