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 fur-seals from indiscriminate slaughter, and consequent speedy extermination.

798

The laws of the United States in this behalf are contained in the Revised Statutes relating to Alaska in sections 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.

That must have been some American sealer, though we have not heard of it before. I do not know the history of it. Then the letter continues:

The question of instructions to Government vessels in regard to preventing the indiscriminate 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.

I am not asking the assent of the Tribunal or any member of it to any conclusion as I go on, as I have achieved my sole purpose if I have satisfied myself that I am making my motive and my argument intelligible to the Tribunal. We get here, therefore, for the first time a suggestion-not put forward as a justification-but a suggestion, which is a reference to the United States Revised Laws, sections 1956-1971; but there is no suggestion in point of fact in what sense they are supposed to apply.

Now we pass on, and on the 10th of September comes a very important communication, at page 88, from Lord Salisbury. I think this one and one other are the only two that I shall ask to be read in full; but inasmuch as this puts forward the grounds upon which Lord Salisbury supposes it is suggested that the executive action may be excused or justified, I think it desirable that they should be fully read. Sir RICHARD WEBSTER.-It is on page 88. This is from the Marquis of Salisbury to Sir Lionel West:

FOREIGN OFFICE, September 10th, 1887. SIR: By a despatch of the 30th October last the late Earl of Iddesleigh instructed you to call the attention of the United States Secretary of State to the circumstances of the seizure in Behring's Sea, by the American cruizer "Corwin" of some British Canadian vessels, and his Lordship directed you to state to Mr. Secretary Bayard that Her Majesty's Government felt sure that if the proceedings which were reported to have taken place in the United States District Court were correctly described, the United States Government would admit their illegality, and would cause reasonable reparation to be made to the British subjects for the wrongs to which they had been subjected and for the losses which they had sustained.

By a previous despatch of the 9th September you had been desired to ask to be furnished with any particulars which the United States Government might possess relative to the seizures in question; and on the 20th October you were instructed to enter a protest on behalf of Her Majesty's Government and reserve for consideration hereafter ail rights to compensation.

Nearly four months having elapsed without any definite information being furnished by the United States Government as to the grounds of the seizures my predecessor instructed you, on the 8th January last, to express to Mr. Bayard the concern of Her Majesty's Government at the delay, and to urge the immediate attention of the United States Government to the action of the American authorities in their treatment of these vessels, and of their masters and crews.

799

On the 3rd February Mr. Bayard informed you that the record of the judicial proceeding which he had called for was shortly expected to reach Washing. ton, and that, without conclusion at that time of any questions which might be found to be involved in these cases of seizures, orders had been issued by the President's direction for the discontinuance of all pending proceedings, the discharge of the vessels referred to, and the release of all persons under arrest in connection therewith.

On the 4th of April, under instructions from me, you inquired of Mr. Bayard, in view of the approaching fishing season in Behring's Sea, whether the owners of British vessels might rely when not near land on being unmolested by the cruizers of

the United States, and you again asked when the record of the judicial proceedings might be expected. Mr. Bayard informed you, in reply (12th April), that the papers referred to had reached him and were being examined; that there had been unavoidable delay in framing appropriate Regulations and issuing orders to United States vessels to police the Alaskan waters; that the Revised Statutes relating to Alaska, Sections 1956 and 1971, contained the laws of the United States in relation to the matter; and that the Regulations were being considered, and he would inform you at the earliest day possible what had been decided, so that British and other vessels might govern themselves accordingly.

In view of the statements made by Mr. Bayard in his note of the 3rd February, to which I have referred above, Her Majesty's Government assumed that, pending a conclusion of the discussion between the two Governments on the general question involved, no further similar seizures of British vessels would be made by order of the United States Government. They learn, however, from the contents of Mr. Bayard's note of the 13th August last, inclosed in your despatch of the 15th August, that such was not the meaning which he intended should be attached to his communication of the 3rd February; and they deeply regret to find a proof of their misinterpretation of the intentions of the United States Government from an announcement recently received from the Commander-in-chief of Her Majesty's naval forces in the Pacific, that several more British vessels engaged in seal-hunting in Behring's Sea have been seized when a long distance from land by an American Revenue vessel.

Her Majesty's Government have carefully considered the transcript of record of the judicial proceedings in the United States District Court in the several cases of the schooners "Carolina", "Onward" and "Thornton" which were communicated to you in July, and were transmitted to me in your despatch of the 12th of that month, and they cannot find in them any justification for the condemnation of those vessels. The libels of information allege that they were seized for killing fur seal within the limits of Alaskan Territory, and in the waters thereof, in violation of section 1956 of the Revised Statutes of the United States; and the United States Naval Commander Abbey certainly affirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska; but according to his own evidence they were seized 75, 115, and 70 miles respectively south-south-east of St. Georges Island.

It is not disputed, therefore, that the seizures in question were effected at a distance from land far in excess of the limit of maritime jurisdiction which any nation can claim by international law, and it is hardly necessary to add that such limit cannot be enlarged by any municipal law.

The claim thus set up appears to be founded on the exceptional title said to have been conveyed to the United States by Russia at the time of the cession of the Alaska Territory. The pretension which the Russian Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea was, however, never admitted either by this country or by the United States of America. On the contrary, it was strenuously resisted, as I shall presently show, and the American Government can hardly claim to have received from Russia rights which they declared to be inadmissible when asserted by the Russian Government. Nor does it appear from the text of the Treaty of 1867 that Russia either intended or purported to make any such grant; for, by Article I of that instrument, Russia agreed to cede to the United States all the territory and dominion then posessed by Russia on the continent of America and in the adjacent islands within certain geographical limits described, and no mention was made of any exclusive right over the waters of Behring Sea.

800

Moreover, whatever rights as regards their respective subjects and citizens may be reciprocally conferred on the Russian and American Governments by treaty stipulation, the subjects of Her Majesty cannot be thereby affected, except by special arrangement with this country.

With regard to the exclusive claims advanced in times past by Russia, I transmit to you documents communicated to the United States Congress by President Monroe in 1822, which show the view taken by the American Government of these pretensions. In 1821 the Emperor of Russia had issued an edict establishing Rules for the limits of navigation and order of communication along the coast of the eastern Siberia, the north-western coast of America, and the Aleutian Kurile and other islands.

The first section of that edict said: The pursuit of commerce whaling and fishery, and of all other industry on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from Behring's Straits to the 51st degree of northern latitude; also from Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the south Cape of the Island of Urup, viz., to 45° 50′ of northern latitude, is exclusively granted to Russian subjects; and section II stated: It is, therefore, prohibited to all foreign vessels not only to land on the coast land islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. The transgressor's vessel is subject to confiscation, along with the whole cargo,

A copy of these regulations was officially communicated to the American Secretary of State by the Russian Minister at Washington on the 11th February 1822; whereupon Mr. Quincy Adams, on the 25th of that month, after informing him that the President of the United States had seen with surprise the assertion of a territorial claim on the part of Russia, extending to the 51st degree of north latitude on the American Continent and a Regulation interdicting to all commercial vessels other than Russian, upon the penalty of seizure and confiscation, the approach upon the high seas within 100 Italian miles of the shores to which that claim was made to apply, went on to say that it was expected before any act which should define the boundary between the territories of the United States and Russia, that the same would have been arranged by Treaty between the parties, and that to exclude the vessels of American citizens from the shore beyond the ordinary distance to which territorial jurisdiction extends has excited still greater surprise; and Mr. Adams asked whether the Russian Minister was authorized to give explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and Regulations.

The Russian Minister in his reply, dated the 28th February, after explaining how Russia had acquired her possessions in North America said:

"I ought in last place to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend on the north-west coast of America from Behring's strait to the 51st degree of north latitude and on the opposite side of Asia and the islands adjacent from the same Strait to the 45th degree. The extent of Sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut seas (mers fermées), and the Russian Government might consequently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners; but it preferred only asserting its essential rights without taking advantage of localities."

On the 30th March Mr. Adams replied to the explanations given by the Russian Minister. He stated that, with respect to the pretension advanced in regard to territory, it must be considered not only with reference to the question of territorial rights, 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. That from the period of the existence of the United States as an independent nation 801 their vessels had freely navigated these seas, the right to navigate them being a part of that independence; and with regard to the suggestion that "the Russian Government might have justitied the exercise of sovereignty over the Pacific Ocean as a close sea "because it claims territory both on its American and Asiatic shores", it may suffice to say that the distance from shore to shore on this sea, in latitude 51° north, it is not less than 90 degrees of longitude, or 4,000 miles. Mr. Adams concluded as follows: "The President is pursuaded that the citizens of this Union will remain unmolested in the prosecution of their lawful commerce, and that no effect will be given to an interdiction manifestly incompatible with their rights."

The convention between the United States of America and Russia of the 17th April 1824, put an end to any further pretension on the part of Russia to restrict navigation or fishing in Behring Sea so far as American citizens were concerned; for by article 1 it was agreed that in any part of the Great Ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the High Contracting Powers shall neither be disturbed nor restrained, either in navigation or fishing, saving certain restrictions which are not material to the present issue; and a similar stipulation in the Convention between this country and Russia in the following year (15th May, 1825) put an end, as regarded British subjects, to the pretensions of Russia to which I have referred, and which had been entirely repudiated by Her Majesty's Government in correspondence with the Russian Government in 1821 and 1822, which for your more particular information I inclose herein.

Her Majesty's Government feel sure that, in view of the considerations which I have set forth in this despatch, which you will communicate to Mr. Bayard, the Government of the United States will admit that the seizure and condemnation of these British vessels, and the imprisonment of their masters and crews, were not warranted by the circumstances, and that they will be ready to afford reasonable compensation to those who have suffered in consequence, and issue immediate instructions to their naval officers which will prevent a recurrence of these regrettable incidents. I am, etc.,

SALISBURY.

Sir CHARLES RUSSELL.-Now the Tribunal will observe that Lord Salisbury is there answering the only case which was put forward, namely the judgment of Mr. Justice Dawson, which resulted in the confiscation of these ships-which resulted, of course, in altering the property in these ships; and the surprising thing is

The PRESIDENT.-The judgment of Judge Dawson was delivered previously to the 3rd of February.

Sir CHARLES RUSSELL.-Oh, long previously.

The PRESIDENT.-It was before the order of release was sent.

Sir CHARLES RUSSELL.-Lord Salisbury had only got before him the record of the proceedings in the Court, and the judgment of the Court of Sitka. That was the only case he had to deal with, and he deals with it in a way I shall have hereafter to refer to in another connection in considering the derivative title claimed under Russia. But will not the Tribunal be surprised to hear that that despatch of Lord Salisbury, written upon the 10th September 1887, received no answer from the representative of the United States, until the year 1890 ?

If I am wrong in this, let me be corrected on the spur of the moment. That despatch of Lord Salisbury deals with the only case that is suggested-he has got before him the only thing upon which he can form a judgment, namely the record of the proceedings at Sitka, and he pro

ceeds, effectually I submit, to demolish that case. But, that I 802 may omit nothing, let me say that Mr. Bayard had done some

thing meanwhile; and what was it? He had written on the 19th August 1887 the letter which has been referred to more than once in the course of the argument by learned friend, Mr. Carter. This letter is not to be found in our appendix: it is not to be found, for the reason that it was not in fact sent to us at all. It was a circular letter addressed by Mr. Bayard to the representatives of the United States in the various capitals of the world. No direct communication of this letter was made to Great Britain, but the communication was shewn or the purport of it notified to us by Mr. Phelps, the then Minister for the United States in London, on the 11th of November 1887.

I will now read that letter, which is in the first Volume of the Appendix to the Case of the United States, page 168. I desire that the Tribunal should have all the materials before them in order to appreciate, in the order of events, the position taken up by the respective Governments.

SIR: Recent occurrences have drawn the attention of this Department to the necessity of taking steps for the better protection of fur-seal fisheries in Behring Sea. Without raising any question as to the exceptional measures which the peculiar character of the property in question

That is the fur-seal fisheries

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 so to inform you to attain the desired ends by international co-operation.

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 circumstances, and in view of the common interest of all nations in preventing 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 draw the attention of the Government to which you are accredited to the subject, and to invite it to enter into such an arrangement.

And so on.

This was the departure point of the scheme which contemplated a set of international rules not confined to the United States and to Great Britain, but which should have the concurrence of all the other nations which were, or might be, interested. But, again, am I not justified in asking the Tribunal to note in passing here, that while there is a tentative and indirect suggestion that there may be some other ground upon which the Government of the United States may justify its action,

yet that this ground is not stated as a proposition by which Mr. Bayard desires to bind either himself or his Government, much less is it an affirmation of any legal principle upon which he feels justified in taking his stand? And now, I repeat, is it not an amazing fact that the despatch of Lord Salisbury, which I have ventured to submit demolishes the only case suggested, and suggested too by the judicial record of the proceedings at Sitka, should have remained unanswered-I think it remains unanswered to this day-but remained without any appearance of answer until the 22nd of January 1890, or more than two years after its despatch?

803

Now, I do not seek to be drawn into any bye-issues. As Lord Salisbury, who had succeeded to Lord Iddesleigh, believed, there had been a breach of a promise made that no further seizures should be effected; and Lord Salisbury records his statement that he had been so assured in a letter of the 8th of April, 1888, which is to found at page 189 of the large volume. It refers to an interview with Mr. Phelps, stating that he was very anxious for despatch because of the destruction of the species which was going on, and which he considered a matter of grave moment; and then he proceeds.

He informed me, therefore, unofficially, that he had received from Mr. Bayard a private letter, from which he read to me a passage to the following effect: "I shall advise that secret instructions be given to American cruizers not to molest British ships in Behring Sea at a distance from the shore, and this on the ground that the negotiations for the establishment of a close time are going on."

And then:

But, Mr. Phelps added, there is every reason that this step should not become public, as it might give encouragement to the destruction of seals that is taking place. And so forth. It is a bye-point, and I do not seek to dwell upon it. There must have been some misunderstanding because, as a matter of fact, we know that the seizures were renewed.

Meanwhile, there is a change of Government in the United States, and in March, 1889, President Harrison succeeds to President Grover Cleveland; and Mr. Blaine succeeds, as Secretary of State, to Mr. Bayard. And I will only say that I have myself very little doubt (if I may, for the moment, intrude a suggestion of that kind, which means no disrespect to anybody) that judging from the tenor of Mr. Bayard's communications and the position he took up, and the executive action that he authorised and directed,-I cannot doubt that if he had continued Secretary of State, we should have had the case settled as a matter of common interest, and discussed as a matter of common interest, to all the Nations; and certainly some of the portions of the claim now put forward never would have been heard of, because they are inconsistent with the attitude which he himself, in his executive capacity, took up.

First appearance

But Mr. Blaine, on the 22nd of January, wrote his celebrated despatch, which is known as the contra bonos mores despatch; and there is that very great break, partly accounted for by the fact, I of contra bonos admit, that negotiations were going on which it was mores argument. hoped might end the whole difficulty, but still I cannot believe that if in the minds of the advisers of the United States there had been present, even in a faint degree, the existence of definite legal grounds upon which their action could be defended or justified, that we should not have had some assertion of it at some time or other in answer to these communications of Lord Iddesleigh, in the first instance, and Lord Salisbury, in the second. On the 22nd of January comes this despatch; and I will just notice, in passing,

804