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APPENDIX.

A.

THE BEHRING SEA ARBITRATION, 1893. 1

1

May a State exercise jurisdiction on the high seas for the purpose of protecting fur-seals, which, for several months in each year, remain on land in its territory.

The controversy in this case grew out of the seizure by United States revenue cutters, in Behring Sea, of sixteen Canadian vessels, between August 1st, 1886, and March 27th, 1890, for taking seals in that sea. These seizures were all made beyond the three-mile limit, at distances varying from fifteen to one hundred and fifteen miles from land. It was supposed that the United States acted upon the assumption that Behring Sea was mare clausum. That was the view taken of it by Judge DAWSON, of the District Court of Alaska; who, in charging the jury in the case of one of these vessels (the Thornton), said: "All the waters within the boundary set forth to the western end of the Aleutian Archipelago and chain of islands are to be considered as comprised within the waters of Alaska.

"If the jury believe the defendant killed any otter, mink, marten, sable, or fur-seal, or other fur-bearing animals on the shores of Alaska, or in the Behring Sea, east of the 1938 of west longitude, they shall find him guilty. *

So, Chief Justice Fuller, in delivering the opinion of the court in the Sayward case, assumed that the seizure was made by right of mare clausum.

But the government of the United States did not press that claim. Mr. E. J. Phelps, in a despatch to Mr. Blaine, September 12th, 1888, said:

:

"Here is a valuable fishery, and a large and, if properly managed,

1 On account of the recent date of this decision, it has been impossible to put it in its proper place in the body of the book (“Jurisdiction on the High Seas ”). The arguments of the English counsel have not come to hand, and therefore are not represented in this report.

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permanent industry, the property of the nation 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 interests at all involved. And it is suggested that we are prevented from protecting 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 that cannot be allowed to be done on the open sea with impunity, and against which every sea is mare clausum. And the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon 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 defenseless in such 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 so proper, it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules." The views thus expressed by Mr. Phelps were declared by Mr. Blaine, to be the views adopted by the Government of the United States.

Mr. Blaine's statement of the issues, January 22d, 1890, to Sir Julian Pauncefote:

"In the opinion of the President, the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that was contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the government and people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this government over the waters of the Behring Sea; it is not necessary to explain, certainly to define, the powers and privileges ceded by His Imperial Majesty the Emperor of Russia in the treaty by which the Alaska Territory was transferred to the United States.

The weighty considerations growing out of the acquisition of that Territory, with all the rights on land and sea inseparably connected therewith, may be safely left out of view, while the grounds are set forth upon which this government rests its justification for the action complained of by Her Majesty's Government."

The grounds set forth are these :

(1) The value of the sealeries and the absence of any interference with them down to 1886.

(2) That the taking of seals in the open water rapidly leads to their extermination, because of the indiscriminate slaughter of the animal, especially of the female; with which slaughter Mr. Blaine contrasts the careful methods pursued by the United States Government in killing seals upon the Islands.

(3) That the right of defense by the United States against such extermination is not confined to the three-mile limit, and Mr. Blaine remarks as follows: "does Her Majesty's Government seriously maintain that the law of nations is powerless to prevent such violation of the common rights of man? Are the supporters of justice of all nations to be declared incompetent to prevent wrongs so obvious and so destructive.

"In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea, and the liberty which it confers, and which it protects, be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the welfare of mankind."

By the treaty of February 29, 1892, the two governments agreed to refer the questions in dispute to a tribunal of arbitration, to be composed of seven arbitrators, two to be named by each of the contracting powers, one by the President of the French Republic, one by the King of Italy, and one by the King of Sweden and Norway.

Article II. of the treaty contains the five points of dispute to be passed upon by the tribunal, as follows: Art. VI. "In deciding the matters submitted to the Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit:

"1. What exclusive jurisdiction in the sea now known as the Behring'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 Behring Sea included in the phrase Pacific Ocean,' as used in the treaty of 1825

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between Great Britain and Russia; and what rights, if any, in the Behring Sea were held and exclusively exercised by Russia after said Treaty?

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

"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 Behring Sea when such seals are found outside the ordinary three-mile limit?"

In the event of a decision against the United States on these points, the seventh article provides for the establishment of concurrent regulations for the waters beyond the jurisdiction of either party.

Under the provisions of this treaty, the tribunal met in Paris in the spring of 1893. The Arbitrators were as follows:

Baron de Courcel, France (President); Marquis Emilio ViscontiVenosta, Italy; M. Gregero W. W. Gram, Sweden and Norway; Lord Hannen, and Sir John S. D. Thompson, England; and Justice John M. Harlan, and Senator John T. Morgan, United States.

The counsel on the part of the United States were Messrs. Edward J. Phelps, James C. Carter, Frederick R. Coudert, and Henry Blodgett; on the part of England, Sir Charles Russell, Sir Richard Webster, and others.

When the evidence was before the Tribunal, it appeared that the United States had a very weak case in respect of the first two points to be considered: and this was evident indeed from the moment of the discovery of the false translations of certain Russian documents, imposed upon the government of the United States by a person employed by it. On the third point, the decision was unanimous in favor of the English contention. That being the state of the case as to the first three points, the fourth was of no weight either way.

Thus the real issue before the tribunal was upon the fifth point, that the United States had a right of property in the seals, and a further right to protect this property on the high seas, and to these points the chief weight of the American argument was directed.

On the question of property in the seals, Mr. Carter said: "The United States hold that the ownership of the islands upon which seals breed; that the habit of the seals in regularly resorting thereto and rearing their young thereon; that their going out in search of food and regularly returning thereto, and all the facts and inci

dents of their relation to the islands, give to the United States a property interest therein; that this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized that property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States.

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Mr. Carter argues at great length to prove, from the Civil Law and the Common Law, the right of property in animals feræ naturæ. He quotes Justinian, Savigny, Puffendorf, Bracton, Bowyer, Vattel, Hautefeuille, Kent, and others; and the cases of The Swans, 7 Coke, 15b; Keeble v. Hickeringill, 11 East, 574; Amory v. Flyn, 10 Jolin., 102; Goff v. Kitts, 15 Wend., 550; Blades v. Higgs, 12 C. B. N. S., 512; Davis v. Powell, Willes, 1737.

On the question of the right to protect the seals on the high seas, Mr. Phelps said, the case of the Government of the United States was: "1st. That in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd, as the natural product of its soil, made chiefly available by its protection and expenditure, highly valuable to its people, and a considerable source of public revenue, as entitles it to preserve the herd from destruction in the manner complained of, by an employment of such reasonable force as may be necessary.

"2d. That irrespective of the distinct right of property, in the seal herd, the United States Government has for itself and for its people, an interest, an industry, and a commerce derived from the legitimate and proper use of the produce of the seal herd on its territory, which it is entitled, upon all principles applicable to the case, to protect against wanton destruction by individuals, for the sake of the small and casual profits in that way to be gained; and that no part of the high. sea is or ought to be open to individuals, for the purpose of accomplishing the destruction of national interests of such a character and importance.

"Third That the United States, possessing as they alone possess, the power of preserving and cherishing this valuable interest, are in a most just sense the trustee thereof for the benefit of mankind, and should be permitted to discharge their trust without hindrance."

In support of this view, Mr. Phelps quotes, Grotius, Kent, Twiss, etc., and the following cases: The Marianna Flora, 11 Wheaton, 41; Church v. Hubbart, 2 Cranch, 287, Queen v. Keyn, L. R., 2 Ex. Div., 63; Rose v. Himely, 4 Cranch, 287; The Success, 1 Dod., 133; The Fox, Ed., 314; The Snipe, Ed., 382.

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