in practice of all the privileges conferred by the Final Act. In Asia, the opening up of the Yang-tse-kiang river by China to foreign vessels has also been conceded by treaty, subject, however, to certain conditions. This was originally conceded to British merchant vessels in 1862, but was gradually extended to those of other States, and was in 1898 made general, subject to goods being landed and shipped at certain specified ports (hh).

General Conclusions with respect to Navigation of Rivers.-Thus we see that the practice of nations, so far as evidenced by convention, has during the last century been almost uniformly favourable to the right of free navigation. But although the fact that this right has been commonly conceded by treaty serves for the most part to remove any difficulty as to the actual position of rivers that are the subject of treaty stipulations, yet the practice on this subject is not by any means uniform, and it is not easy to determine how far the earlier rules that would otherwise apply have been affected or modified by new usage generated by treaty. Nevertheless the following conclusions appear to be warranted: (1) So far as relates to the right of navigation on the part of co-riparian States, the practice of States is perhaps sufficiently uniform to warrant the assertion of a right apart from treaty; although this right is at best only an "imperfect right," and is even now not universally conceded. So, in 1906, the navigation of the Lower Nile was closed by Egypt to the passage of steamers for ports of the Congo Free State, situated on the Upper Nile; nor does the legality of this proceeding appear to have been questioned. (2) Such a right, moreover, whether resting on convention or usage, is certainly subject to such regulations as may be necessary to the safety or convenience of the territorial Power, so long as they are not inconsistent with free navigation. (3) So far as relates to the right of navigation on the part of non-riparian States, this, although often conceded by treaty, cannot probably be claimed as a right grounded on usage, except under cover of the rights of the riparian States themselves. (4) So far as relates to rivers wholly within the territory of one State, the right of navigation, although often conceded by treaty, and sometimes extorted as against minor Powers, is yet strictly only a matter of grace or comity (i).

THE FREEDOM OF THE SEA.

THE BEHRING SEA ARBITRATION, 1893.

[British and Foreign State Papers, vol. 9 (1821-22); vol. 12 (1824-25); vol. 57 (1866-67); vol. 79 (1887-88); vols. 81-90 (1888-89 to 1897-98); La Ninfa (75 Fed. 513; Scott, p. 443); and two articles by T. B. Browning, L. Q. R., April and October, 1891.]

Controversy.] THE territory of Alaska is a promontory situated on the extreme north-west of the continent of North America,

(hh) Hall, 139.

(i) On the subject generally, Hall, 141; Westlake, i. 157.

and projecting in a south-westerly direction for about 500 miles into the Pacific Ocean. Beyond its extreme points lies the Aleutian Archipelago, a series of islets extending for a considerable distance further into the Pacific. Above these lies the Behring Sea, and still farther north lie the Behring Straits.

Both the peninsula of Alaska and the Aleutian Archipelago formerly belonged to Russia. In 1821 a Ukase was issued by the Czar, purporting to reserve to Russian subjects the pursuits of commerce, whaling, fishery, and all other industry, on all islands, ports, and gulfs, from the Behring Straits along the American coast as far as 510 N. lat., and also from the Aleutian Islands to the eastern coast of Siberia, and along the coast of Asia as far as 45° 50' N. lat., all foreign vessels being prohibited from approaching within 100 Italian miles of these limits under pain of confiscation. This claim to maritime dominion and jurisdiction over the open sea was at once objected to both by the United States and Great Britain. Mr. Adams, the United States Secretary of State, in particular, expressed his surprise at the attempt to exclude American citizens" from the shore beyond. the ordinary distance (of three miles from low-water mark) to which the territorial jurisdiction extends" (k), and refused altogether to admit these pretensions (1). As the result of these protests, Russia ultimately agreed, by conventions entered into with the United States in 1824, and with Great Britain in 1825, to abandon these claims, and not to prevent the citizens and subjects of the United States and Great Britain from navigating or fishing in any part of the Pacific Ocean; whilst as between Great Britain and Russia certain limits of settlement and lines of demarcation of boundary were also agreed upon (m).

By a treaty made in 1867 Russia ceded to the United States, in consideration of a money payment, all her dominions on the continent of America, including the territory of Alaska and the adjacent islands, and all attendant rights therein. The territory was thereupon constituted a federal territory of the United States, and became subject to the dominion and jurisdiction of the latter Power. The main value of the territory, at this time, consisted

(k) 25th of February, 1822. (1) 22nd of July, 1823.

Alaska

(m) As to these, see Boundary Arbitration, p. 99, supra.

in its being the chief seat of the fur-seal fishing industry. In 1870 a small but powerful syndicate, known as the Alaska Commercial Company, acquired from the United States Government a lease of the islands of St. Paul and St. George, on certain terms, mainly with a view to the carrying on of the fur-seal fishery. The same company appears subsequently to have extended its operations and control to other islands, and also to the mainland of Alaska. Meanwhile the seal fishery had begun to attract the attention of the Canadians, and Canadian vessels now began to engage in it. The method followed, in most cases, was to intercept and kill the seals in their passage across the Behring Sea. These operations, although they involved a wasteful slaughter of seals, took place at a distance greatly beyond three miles from the American shore; and occurring as they did outside. waters commonly regarded as territorial, and on the open sea, were not, according to the ordinary rules of international law, subject to the municipal regulations or jurisdiction of any foreign State. But they necessarily conflicted with the interests of the Alaska Company, which throughout the whole of these proceedings showed itself to be possessed of powerful influence at Washington. Hence an Act of Congress-s. 1956 of the revised statutes was passed, providing, in effect, that no person should kill any fur-seal, or other fur-bearing animal, without authorisation, within Alaska territory or the waters thereof." At the instigation of the Alaska Company, and purporting to act under the authority of this provision, the United States authorities, in 1886, seized three Canadian vessels, whilst at a distance of seventy miles from the shore, and proceeded against the vessels and their crews, in the District Court at Sitka, for having been guilty of a contravention of the United States law (n). On the intervention of Great Britain, and after much delay, orders were issued by the United States Government for the release of these vessels and

(n) These trials were, it is said, conducted in most irregular fashion. The juries were composed of dependants of the Alaska Company, evidence was improperly excluded, opportunity for cross-examination was refused; demurrers were overruled without argument; and every obstacle

thrown in the way of an appeal to the Supreme Court; whilst the crews themselves were also subjected to the harshest treatment. It is instructive to compare the terms of the United States protest in Cutting's Case (infra, p. 228) with the treatment accorded to these crews.

their crews, although this relief was given for the most part under circumstances which rendered it futile (o). In 1887 other seizures were made, which gave rise to a further protest on the part of the British Government. In 1889 a new Act of Congress was passed, providing that the previous enactment-s. 1956-should be deemed to include and apply to "all the dominion of the United States in the waters of Behring Sea," and that it should be the duty of the President to issue a proclamation "warning all persons against entering said waters for the purpose of violating the provisions of said section" (p). Such a proclamation was accordingly issued in March, 1889, with the result that in July the seizures of British vessels were renewed. In reply to protests of the British Government, the United States Secretary of State contended, amongst other things, that the law of the open sea and the liberty it conferred could not be perverted to justify acts immoral in themselves (such as the taking of the seals); that the seal fishery had been under the exclusive control of Russia, to whose rights the United States had now succeeded; that the taking of seals in the open sea tended to their extinction (q); that the freedom of navigation and fishery conceded by Russia in 1825 in the Pacific Ocean" did not include the Behring Sea; that the prohibition to approach within 100 Italian miles had been left unimpaired, and had been acquiesced in by Great Britain, and that this jurisdictional right had now become vested in the United States (r). In support of the United States claim to the 100-mile restriction, Mr. Blaine referred to a British Act passed after the confinement of Napoleon at St. Helena, forbidding ships of any nationality from hovering within eight leagues of the coast, and also to exterritorial legislation under the Federal Council of Australasia Act, 1885. In reply, Great Britain contended that seals were animals feræ naturæ; that their pursuit on the open sea could not be regarded as immoral; that in any case the seizure of

(0) For the reason that it took place only after great delay, at a time when the sentences had been for the most part completed, and when the vessels had become useless. The men discharged were without funds or friends; some begged their way back, others died after suffering great

hardship.

(p) As to the history of this section, Scott, 444.

(q) 22nd of January, 1890 (82 S. P. 202).

(r) 30th of June and 17th of December, 1890 (82 S. P. 257; 83 S. P. 309).

vessels on the high seas, in time of peace, was justified only in cases of piracy or by special international agreement; that the fact that competition in seal fishing would impair the value of the monopoly of the United States lessees did not justify the United States in forcibly depriving other nations of a share in the industry; and, finally, that Great Britain had categorically denied the claims of Russia, under the Ukase of 1821, immediately on its appearance. In 1890, after several fruitless attempts at amicable settlement, Great Britain took up a firm stand and intimated that any further seizures would be resisted by force (s). In consequence of this the Government of the United States abstained from making any further seizures, although it refused to give any diplomatic assurance that no further seizures would be made. In 1891 a modus vivendi was arranged with a view to the whole question being submitted to arbitration, and this arrangement was subsequently renewed from time to time down to May, 1894 (t). Meanwhile, as the result of further negotiation, a treaty was ultimately signed at Washington on the 29th of February, 1892, providing for a reference of the questions in issue between the two countries to a tribunal consisting of seven arbitrators, two to be appointed by Great Britain, two by the United States, whilst France, Sweden-Norway, and Italy were to be requested to appoint one each. The award was to embrace a distinct decision on each of the points hereinafter mentioned. If under the award it should appear that the concurrence of Great Britain was necessary to the establishment of regulations for the protection of the seal fishery, then the arbitrators were to determine what concurrent regulations should be made; whilst the contracting parties also agreed to co-operate in procuring the adhesion of other Powers to such regulations. The parties being unable to agree upon a reference which should include a determination of the question of the liability of each for injuries alleged to have been sustained by the other party or its citizens, it was agreed that each should be at liberty to submit to the arbitrators any questions of fact, and to ask for a finding thereon, the question.

(s) 14th of June, 1890 (82 S. P. at 275).

(t) These arrangements, so far as Great Britain was concerned, were

carried into effect by virtue of the Seal Fishery (Behring Sea) Acts, 1891 and 1893, and certain Orders in Council issued thereunder.