PART FIRST. REPLY OF THE UNITED STATES TO THE THE TRUE ISSUES IN THE PRESENT CONTROVERSY. views as to object It appears, from an examination of the British Difference of Case and the diplomatic correspondence above of Arbitration. referred to, that a different opinion is entertained by the two Governments as to the object and scope of the present Arbitration. That Case is devoted almost exclusively to showing that the Government of the United States is not entitled to exercise territorial jurisdiction over the waters of Bering Sea or to exclude therefrom the vessels of other nations. On the other hand, the Case of the United States makes it plain that the main object had in view by the latter Government is the protection and preservation of the seal herd which has its home on the Pribilof Islands. seals the main ob The distinction between the right of general Protection of and exclusive jurisdiction over Bering Sea and ject of Arbitrathe right to protect the seals from extermination is wide and obvious. In order, therefore, to show tion. 7 Protection of that the latter, and not the former, is the main seals the main ob tion. ject of Arbitra-question before the Tribunal, the Agent of the United States deems it proper to place clearly before it some important considerations touching the manner in which the controversy resulting in the Treaty of Arbitration arose, and to indicate what have at all times been regarded by the United States as the essential issues. dictional controversy. Origin of juris- The diplomatic correspondence shows that as early as the year 1887 the United States claimed a property interest in the seals of the Pribilof Islands; that the question of sovereignty over Bering Sea was first introduced by Her Majesty's Government and was not touched upon by the United States in the correspondence until three years after the first seizures of British vessels had taken place; and that the subsequent discussion of that question has been at all times incidental to the main question,1 viz, the proper protection of the seals. Lord Salisbury refers to Russian ukase. On the 10th of September, 1887, Lord Salisbury, in a note to the British Minister at Washington calling attention, to the transcript of the judicial proceedings in the cases of the Carolena, Onward, and Thornton, referred to the ukase of 'Mr. Blaine to Sir Julian Pauncefote, June 4, 1890, Case of the United States, Appendix, Vol. I, p. 218, and also closing portion of Mr. Blaine's note to Sir Julian Pauncefote, December 7, 1890, ibid., pp. 286, 287. 1821 and the treaties of 1824 and 1825, and insisted that they were conclusive in favor of Great Britain's right to take seals throughout Bering Sea.1 vites interna. tion. The United States Government did not reply Mr. Bayard into the point thus raised. On the contrary, ontional coöperathe 19th of August, 1887, Mr. Bayard, Secretary of State, had already sent out to various foreign governments a note,2 in which he said: "Without raising any question as to the exceptional measures which the peculiar character of the property in question may 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. to obtain the desired ends by international cooperation." This was followed on the 7th of February, 1888,3 by a note addressed to Mr. Phelps containing general suggestions for international action, which, in principle, appear to have been assented to by Lord Salisbury. Appendix to Case of the United States, Vol. I, p. 162. 2 Appendix to Case of the United States, Vol. I, p. 168. 3 Appendix to Case of the United States, Vol. I, p. 172. Appendix to Case of the United States, Vol. I, pp. 175, 212, 218. Mr. Bayard in- On the 2d of March, 1888, Mr. Bayard again vites interna tional coöpera-insisted on the necessity of protecting the seals tion. Mr. Blaine's statement of the issues. "by an arrangement between the governments interested, without the United States being called upon to consider what special measures of its own the exceptional character of the property in question might require it to take, in case of the refusal of foreign powers to give their coöperation." At pages 168 to 194 of Volume I of the Appendix to the Case of the United States will be found the correspondence relating to the proposed international measures. On the 22d of January, 1890, Mr. Blaine, Secretary of State, wrote to Sir Julian Pauncefote, Her Majesty's Minister: "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 the 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 not to define, the powers and privileges ceded by His Imperial Majesty the Appendix to Case of the United States, Vol. I, p. 175. statement of the Emperor of Russia in the treaty by which the Mr. Blaine's Alaskan Territory was transferred to the United issues. 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 were these: (1) The value of the sealeries and the absence of any interference with them down to 1886. 1 (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 in 1 Appendix to Case of the United States, Vol. I, p. 200. Justification of seizures. |