practiced under the authority of the United States, on the Pribilof Islands. On the 3d of February 1893 the Counter Case of the United States was delivered to the British agent and to the arbitrators. The British Counter Case was in like manner delivered within the time required by the treaty. On examining it the representatives of the United States were of opinion that it contained a large body of evidence which could not in a proper sense be regarded as in reply to the Case of the United States, and which should, under the terms of the treaty, have been presented in the original Case of Great Britain. It was, however, decided not to raise any question on the subject at that moment, but at the proper time to bring it to the attention of the tribunal of arbitration. bunal of Arbitration. The first session of the tribunal was held in Meeting of the Tri- Paris, in accordance with the terms of the treaty, on February 23, 1893, but by agreement of the two governments it was of an informal character and an adjournment was taken for one month. At this meeting no business was transacted. The tribunal reassembled on the 23d of March, when, its members having assured themselves that their respective powers were in due form, Lord Hanuen proposed that Baron de Courcel should be requested by his colleagues to assume the post of president. The proposal was supported by Mr. Justice Harlan, and, the other members of the tribunal having agreed to it, Baron de Courcel took the chair and delivered an appropriate address, in concluding which he suggested that at the close of the meeting the members of the tribunal should convey their respects to the President of the French Republic, and express their gratitude for the hospitality with which they had been received. The agents then laid before the tribunal the printed arguments of counsel for their respective governments. The agent of the United States having intimated that, owing to an oversight in printing, certain authorities cited in the argument of the United States had been omitted in the appendices, he was authorized to present at a later date a supplement containing the omitted citations; and the right was reserved to the British Government to reply to such citations, should it be deemed necessary to do so. It was announced that the proceedings of the tribunal would be public, and that admission to the discussions might be obtained through the secretary. The tribunal then adjourned till the 4th of April. States. The Cases, Counter Cases, and Arguments Case of the United of the two governments having been introduced into our narrative, it is proper to present an outline of their contents. The Case of the United States, after reciting, in the words of the treaty, the questions submitted to the tribunal of arbitration, proceeded to treat, in its first part, the historical and jurisdictional questions at issue. In this relation it sketched the geographical features of Behring Sea and of the Pribilof Islands, the discovery and occupation of the territories in that quarter of the globe, and the claims of Russia, Spain, Great Britain, and the United States to the Northwest Coast. It then took up the history of the Russian-American Company and its charter in 1799, and maintained that the ukase of 1821 was regarded by Russia as merely declaratory of existing rights. In support of this contention it cited various documents relating to the affairs of the Russian-American Company belonging to the Alaskan archives, which were delivered to the United States on the cession of Alaska and deposited in the Department of State. Facsimiles of these documents were presented, together with translations. It was also maintained that the treaties of 1824 and 1825 were not intended to apply to Behring Sea. In this relation various papers to which Mr. Blaine had referred were. reviewed, as well as certain acts of the Russian Government between 1825 and 1867. On the strength of the historical argument it was asserted that Russia prior to 1824 asserted exclusive rights of commerce, hunting, and fishing on the shores and in the waters of Behring Sea; that Behring Sea was not included in the phrase "Pacific Ocean," as used in the treaties of 1824 and 1825; that after 1825 Russia continued to exercise exclusive jurisdiction over Behring Sea, up to the cession of Alaska to the United States, so far as it was neces sary to preserve to the Russian-American Company the monopoly of the fur-seal industry, and that during the whole of that period British subjects and British vessels were prohibited from entering Behring Sea to hunt for seals, without any apparent protest on the part of Great Britain. All these exclusive rights, it was maintained, Russia ceded to the United States in 1867. The legislation of Congress thereafter adopted was referred to as asserting like claims; the letter of the and Treasury Department to Mr. Ancona, of March 12, 1881, its subsequent communication by Mr. Manning to the collector of customs at San Francisco, were cited in the same sense; and the condemnations of the vessels seized in Behring Sea in 1886 and 1887 were invoked as the interpretation of the treaty of 1867 and of the legislation of Congress by the judicial branch of the Government of the United States. But, in concluding the discussion of historical and jurisdictional questions, the Case of the United States declared that the government was not compelled and did not intend to rest its claims altogether upon the jurisdiction over Behring Sea established or exercised by Russia prior and up to the time of the cession of Alaska. The United States, it was said, asserted that, quite independently of this jurisdiction, it had "a right of protection and property in the fur seals frequenting the Pribilof Islands when found outside the ordinary three-mile limit, based upon the established principles of the common and the civil law, upon the practice of nations, upon the laws of natural history, and upon the common interests of mankind." In support of this claim, the Case of the United States entered into a detailed examination of fur-seal life at the Pribilof Islands and elsewhere, and of the various interests associated with it. To this subject the second part of the Case was devoted. In the course of the discussion, an examination was made of the measures taken for the protection and preservation of other seal herds, including those at the Falkland Islands, New Zealand, and the Cape of Good Hope, and the hair seals in Newfoundland and Greenland. Great Britain and her colonies, said the Case, had found it necessary to protect the hair seal of the North Atlantic from extermination, and other nations had adopted similar measures. Reference was also made to the protection by Great Britain of the Irish oyster fisheries, the Scotch herring fisheries, and the pearl fisheries of Ceylon and Australia; to the regulation by France of the coral fisheries of Algiers, which extend at some points seven miles into the sea; to the protection by Italy of coral beds distant from three to fifteen miles from various points of the coast; to the protection by Norway, under the statute of 1880, of whales in the Varanger Fiörd, an arm of the sea about thirty-two marine miles in width; to a statute of the State of Panama, in the Republic of Colombia, prohibiting the use of diving machines for the collection of pearls within an area of the sea over sixty marine miles in length and extending outward about thirty marine miles from the coast; and to the control by Mexico of pearl fisheries off the coast of Lower California, to a distance of more than three miles from land. In conclusion, the Case of the United States submitted the following propositions:1 "The United States, upon the evidence herewith submitted and referred to, claim that the following propositions of fact have been fully established: "First. That the Alaskan fur seal, begotten, born, and reared on the Pribilof Islands, within the territory of the United States, is essentially a land animal, which resorts to the water only for food and to avoid the rigor of winter, and can not propagate its species or live except in a fixed home upon land of a peculiar and unusual formation, suitable climate and surroundings, a residence of several months on shore being necessary for propagation; that it is domestic in its habits and readily controlled by man while on the land; that it is an animal of great value to the United States and to mankind, is the principal source from which the world's supply of fur-seal skins is derived, and is the basis of an industry and commerce very important to the United States and to Great Britain; that the only home of the Alaskan seal herd is on the Pribilof Islands; that it resorts to no other land; that its course when absent from these islands is uniform and confined principally to waters adjacent to the coast of the United States; that it never min. gles with any other herd, and if driven from these islands would probably perish; that at all times, when in the water, the identity of each individual can be established with certainty, and that at all times, whether during its short excur sions from the islands in search of food or its longer winter migration, it has a fixed intention, or instinct, which induces it to return thereto. "Second. That under the judicious legislation and management of the United States, this seal herd increased in numbers and in value; that the present existence of the herd is due wholly to the care and protection exercised by the United States and by Russia, the former owner of these islands; but that the killing of seals in the water, which is necessarily indiscriminate and wasteful, and whereby mostly female seals are taken while pregnant or nursing, has so reduced the birth rate that this herd is now rapidly decreasing in numbers; that this decrease began with the increase of such pelagic sealing, and that the extermination of this seal herd will certainly take place in the near future, as it already has with other herds, unless such slaughter be discontinued. "Third. That pelagic sealing is an illegitimate, improper, and wasteful method of killing, is barbarous and inhuman in its immense destruction of the pregnant and nursing female, and Fur Seal Arbitration, II. 295. of the helpless young thereby left to perish; that it is wholly destructive of the seal property and of the industries and commerce founded upon it, and that the only way in which these can be preserved to the world and to the governments to which they belong is by prohibiting pelagic sealing in the waters frequented by the herd.' "Ninth. That the investment of these adventurers in pelagic sealing is speculative, generally unprofitable, and, when compared with the seal-skin industry of Great Britain, France, and the United States, which is dependent upon this seal herd, very insignificant; and that the profits, if any, resulting from pelagic sealing are out of all proportion to the destruction that it produces. Upon the foregoing propositions, if they shall be found to be established, the material questions for the determination of this high Tribunal would appear to be: "First. Whether individuals, not subjects of the United States, have a right as against that Government and to which it must submit, to engage in the devastation complained of, which it forbids to its own citizens, and which must result in the speedy destruction of the entire property, industry, and interests involved in the preservation of this seal herd. "Second. If any such right can be discovered, which the United States confidently deny, whether the United States and Great Britain ought not in justice to each other, in sound policy, for the common interest of mankind, and in the exercise of the humanity which all civilized nations accord to wild creatures, harmless and valuable, to enter into such reasonable arrangement by concurrent regulations or convention, in which the participation of other Governments may be properly invited, to prevent the extermination of this seal herd, and to preserve it for themselves and for the benefit of the world. "Upon the first of the questions thus stated the United States Government will claim: "First. 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 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. "Second. That, irrespective of the distinct right of property in this seal herd, the United States Government has for The fourth, fifth, sixth, seventh, and eighth propositions in substance asserted that Russia down to 1867, and then the United States down to 1886, prohibited the killing of fur seals in the waters of Behring Sea, and that Great Britain acquiesced in the prohibition, which had "never been questioned until the excessive slaughter of these animals, now complained of, was commenced by individual adventurers about the year 1885." |