"The President does not, however, desire a long postponement which an examination of legal authorities from Ulpian to Phillimore and Kent would involve. He finds his own views well expressed by Mr. Phelps, our late minister to England, when, after failing to secure a just arrangement with Great Britain touching the seal fisheries, he wrote the following in his closing communication to his own Government, September 12, 1888:

"Much learning has been expended upon the discussion of the abstract question of the right of mare clausum. I do not conceive it to be applicable to the present case.

"Here is a valuable fishery, and a large and, if properly managed, permanent industry, the property of the nations 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 interest at all involved. And it is suggested that we are prevented from defending 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 the 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.'" (H. R. Ex. Doc., No. 144, 51st Cong., 2d Sess., p.

23.)

In a despatch of February 21, 1896, Lord Salisbury continued q

the discussion, and refuted the argument of Mr. Blaine that the Behring Sea was not included in the phrase "Pacific Ocean."

"Our contention is," said Lord Salisbury, "that not only can it not be shown that the Government of Great Britain, at any time since 1821, has admitted the soundness of the pretension put forward by that ukase, but that it can be shown that it has categorically denied it on more than one occasion."

Again, "I am not prepared to admit the justice of Mr. Blaine's contention that the words Pacific Ocean' did not include Behring Sea. I believe, that in common parlance, then and now, Behring Sea was and is a part of the Pacific Ocean.” A list of thirty works proving this point is appended to the despatch.—(Sen. Ex. Doc., No. 55, 52d Cong., 1st Sess., p. 17.)

In view of pending negotiations for the reference of the controversy to a tribunal of arbitration, the following modus vivendi was agreed to, June 15, 1891 :

MODUS VIVENDI.

1. Her Majesty's Government will prohibit, until May next, seal killing in that part of Behring Sea lying eastward of the line of demarcation described in Article No. 1 of the treaty of 1867 between the United States and Russia, "and will promptly use its best efforts to insure the observance of this prohibition by British subjects and vessels."

2. The United States Government will prohibit seal killing for the same period in the same part of Behring Sea, and on the shores and islands thereof, the property of the United States (in excess of 7,500 to be taken on the islands for the subsistence and care of the natives), and will promptly use its best efforts to insure the observance of this prohibition by United States citizens and vessels.

3. Every vessel or person offending against this prohibition in the said waters of Behring Sea outside of the ordinary territorial limits of the United States, may be seized and detained by the naval or other duly commissioned officers of either of the High Contracting Parties, but they shall be handed over as soon as practicable to the authorities of the nation to which they respect

ively belong, who shall alone have jurisdiction to try the offense and impose the penalties for the same.

4. In order to facilitate such proper inquiries as Her Majesty's Government may desire to make, with a view to the presentation of the case of that Government before abitrators, and in expectation that an agreement for arbitration may be arrived at, it is agreed that suitable persons designated by Great Britain will be permitted at any time, upon application, to visit or to remain upon the seal islands during the present sealing season for that purpose. (Senate Ex. Doc., No. 55, 52d Cong., 1st Sess., p. 46.)

A treaty for the settlement of the dispute by arbitration was concluded, February 29, 1892 which is given on page 103, supra. In accordance with the 9th article, commissioners were appointed: Sir George Baden Powell and Dr. Dawson, by the English government, and Professor Mendenhall and Dr. Merriam, by the government of the United States.

In preparing its case for the tribunal of arbitration the government of the United States relied upon certain Russian documents to prove an exclusive right in the Behring Sea, exercised by Russia, and descended to the United States by the treaty of purchase. To translate these documents, a person of Russian nationality was employed who, it would seem, made wholly false translations or additions, in order to make the most favorable case for the United States. By these false documents it appeared that Russia had rigidly excluded the ships of all other nations from the seal-fisheries in the whole of Behring Sea. These falsifications were not discovered till the case had been made up; and then it was found that the original documents failed entirely to sustain the American contention.

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

Baron de Courcel, France (President); Marquis Emilio Visconti-Venosta, 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 Blodget; 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 incidents 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.

Mr. Carter argued at great length to prove, from the Civil Law and the Common Law, the right of property in animals feræ naturæ. He quoted 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 John., 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.

"3d. 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 quoted, 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.

After a preamble stating the case submitted for decision, the full text of the award runs as follows: (New York Herald, August 16, 1893.) :—

"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 said five points, we, Baron de Courcel, John M. Harlan, Lord Hannen, Sir John S. D. Thompson, Marquis Emilio Visconti-Venosta and Gregero W. W. Gram, being a majority of said arbitrators, do decide as follows :