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the transfer of sovereignty to the United States; and in conclusion he reasserted that no destructive intrusion by sealers into Bering Sea began until 1886."

of arbitration.

The answer of Lord Salisbury to this note bears date the 2d of Lord Salisbury's August. In this answer Lord Salisbury maintained answer and offer that the protest of Mr. Adams covered the whole of the extraordinary jurisdictional claim made in the ukase of 1821, and that in all the correspondence there was no reference to any distinctive name for Bering Sea, or any intimation that it could be considered otherwise than as forming an integral part of the Pacific Ocean. When Mr. Adams declared that the United States "could admit no part" of the claims set forth in the ukase, his clear object was to deny that the Russian settlements gave Russia any right to exclude the navigation or fishery of other nations over any part of the sea on the coast of America; and such, also, was the object of the treaties of 1824 and 1825. Lord Salisbury also quoted extracts from the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named as minister plenipotentiary to negotiate the treaty of 1825, by which it appeared, first, that England refused to admit any part of the claim asserted in the ukase of 1821 to an exclusive jurisdiction of one hundred Italian miles from the coast from Bering Straits to the fifty-first parallel of north latitude; second, that the convention of 1825 was regarded on both sides as a renunciation by Russia of that claim in its entirety, and, third, that, though Bering Straits were known and specifically provided for. Bering Sea was not known by that name, but was regarded as part of the Pacific Ocean. Lord Salisbury further contended that the public right to fish, catch seals, or pursue any other lawful occupation on the high seas could not be held to be abandoned by a nation from the mere fact that for a certain number of years it had not suited the subjects of that nation to exercise it; and in conclusion he proposed that if the Government of the United States, after an examination of the evidence and argument which he had produced, should still differ from Her Majesty's Government as to the legality of the recent captures in Bering Sea, the question, together with the issues that depended upon it, should be referred to impartial arbitration." To this communication Mr. Blaine replied on the 17th of December, and at the outset he observed that legal and Mr. Blaine's reply; the "Pacific diplomatic questions, apparently complicated, were Ocean;" ques- often found, after prolonged discussion, to depend tions for arbitra- upon the settlement of a single point. Such was, he said, the position of the United States and Great Britain. Great Britain contended that the phrase" Pacific Ocean," as @For. Rel. 1890, 437-448; H. Ex. Doc. 450, 51 Cong. 1 sess. For. Rel. 1890, 456-465.

tion.

used in the treaties of 1824 and 1825, included Bering Sea; the United States contended that it did not. If Great Britain could maintain her position on this point, the Government of the United States had, Mr. Blaine declared, "no well-grounded complaint against her." If, on the other hand, the United States could prove that Bering Sea at the date of the treaties was understood by the three signatory powers to be a separate body of water, and was not included in the phrase "Pacific Ocean," then the American case against Great Britain was complete and undeniable." Mr. Blaine then renewed and amplified the arguments which he had previously advanced to show that the term "Pacific Ocean" was not intended to include Bering Sea."

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In answer to the offer of Lord Salisbury to arbitrate, Mr. Blaine proposed five questions on which, in the opinion of the President, a substantial arbitration might be had. The first four related to the jurisdictional rights of Russia and their transfer to the United States. The fifth related to the rights of the United States as to the fur-seal fishery in the waters of Bering Sea outside of the ordinary territorial limits, whether such rights grew out of the cession by Russia, or "of the ownership of the breeding islands and the habits of the seals in resorting thither and rearing their young thereon and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States." If the determination of the foregoing questions should leave the subject in such a position that the concurrence of Great Britain was necessary for the protection of the fur seal, it was further proposed that the tribunal of arbitration should determine what measures were necessary for that purpose. In conclusion, Mr. Blaine declared that the repeated assertions that the United States demanded that the Bering Sea be pronounced mare clausum, were without foundation. "The Government," he said, "has never claimed it and never desired it. It expressly disavows it." He further stated that the views of the President were well expressed by Mr. Phelps in his dispatch of September 12, 1888, and from this dispatch he then cited the passage which has already been quoted.c

a He also referred to an act of the British Parliament, passed after the transportation of Napoleon to the island of St. Helena, by which power was assumed to exclude ships of any nationality not only from landing on the island, but from hovering within eight leagues of its coast, and to the case of the pearl fisheries in the Indian Ocean, under the control of the British Government.

"For several years [prior to 1890] the United States, asserting that it had territorial jurisdiction over Bering Sea, had been striving to prevent vessels of foreign nations from seal hunting on the open waters thereof." (Fuller, C. J., in North Am. Commercial Co. v. United States (1898), 171 U. S. 110, 132.)

c Message of Jan. 5, 1891, H. Ex. Doc. 144, 51 Cong. 2 sess.; For. Rel. 1890, 477.

On the 21st of February, 1891, Lord Salisbury replied to this note, controverting the argument advanced in it as to the meaning of the treaties of 1824 and 1825, and proposing certain modifications of the questions to be

Agreement on modus vivendi.

a

submitted to arbitration."

Mr. Blaine rejoined on the 14th of April. Meanwhile the two Governments had entered upon the consideration of a modus vivendi, which had been suggested by Mr. Blaine under the instructions of the President, for the suspension or restriction of sealing pending the result of the arbitration of the questions at issue between the two Governments. This correspondence continued till the 15th of June, 1891, when a modus vivendi was agreed upon. By this agreement Great Britain undertook to prohibit, until the following May, the killing of seals by British subjects in that part of Bering Sea lying eastward of the line of demarcation described in the treaty between the United States and Russia of 1867, and the United States to prohibit the like killing of seals by citizens of the United States in the same part of Bering Sea and on the islands thereof, in excess of 7,500 be taken on the islands for the subsistence and care of the natives. It was further agreed that, in order to facilitate such inquiries as Her Majesty's Government might desire to make with a view to the presentation of their case before arbitrators, suitable persons designated by Great Britain should be permitted at any time, upon application, to visit and remain on the seal islands during the pending season for that purpose. d

This agreement was at once proclaimed by the President, "to the end that the same and every part thereof might be observed and fulfilled with good faith by the United States of America and the citizens

a For. Rel. 1891, 542. In January, 1891, a motion was made before the Supreme Court of the United States for leave to file an application for a writ of prohibition to the district court of the United States for the district of Alaska, to restrain the enforcement of the sentence of condemnation and forfeiture entered on September 19, 1887, in the case of the W. P. Sayward, one of the British Columbian sealers, on the ground that the court was without jurisdiction in the premises. Leave having been granted, the application was duly filed. The petitioner for the writ was one Cooper, the owner of the Sayward, but with his petition a suggestion was presented by Sir John Thompson, attorney-general of Canada, with the knowledge and approval of the Imperial Government, requesting the aid of the court for the claimant, a British subject. The case was argued on November 9 and 10, 1891, and was decided February 29, 1892, the day on which the treaty of arbitration was signed. The application was denied on technical grounds, relating to the law and practice governing the issuance of writs of prohibition. (In re Cooper, 143 U. S. 472.)

For. Rel. 1891, 548.

e For. Rel. 1891, 552-570. See President Harrison's annual message of Dec. 9. 1891. See, also, North American Commercial Co. v. United States, 171 U. S. 110. d For. Rel. 1891, 570.

thereof." It was put in force in Great Britain by an order in council, issued under an act passed on June 11, 1891, "to enable Her Majesty, by order in council, to make special provision for prohibiting the catching of seals in Bering's Sea by Her Majesty's subjects during the period named in the order." a

tion.

A treaty of arbitration was signed at Washington, February 29, 1892. By the first article of the treaty it was provided Treaty of arbitra- that the questions which had arisen between the two Governments" concerning the jurisdictional rights of the United States in the waters of Bering's Sea, and concerning also the preservation of the fur seal in, or habitually resorting to, the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur seal in, or habitually resorting to, the said waters," should be submitted to a tribunal of seven arbitrators, two to be named by the President of the United States, two by Her Britannic Majesty, and one each by the President of France, the King of Italy, and the King of Sweden and Norway. The questions submitted to arbitration were defined by Articles VI. and VII. By Article VI. five questions were submitted for specific judgment. Article VII. referred to the arbitrators the subject of concurrent regulations, in case their judgment on the five questions in the preceding article should be adverse to the United States. The text of Article VI. and VII. is as follows:

"ARTICLE VI. In deciding the matter submitted to the arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit:

"1. What exclusive jurisdiction in the sea now known as the Bering's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?

"2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?

"3. Was the body of water now known as the Bering's Sea included in the phrase Pacific Ocean,' as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering's Sea were held and exclusively exercised by Russia after said treaty?

"4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Bering's Sea east of the water boundary, in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty?

a Case of the United States, Appendix I. 323, Fur-Seal Arbitration, II.

5. Has the United States any right, and if so, what right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?

"ARTICLE VII. If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Bering Sea, the arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend, and to aid them in that determination the report of a joint commission to be appointed by the respective Governments shall be laid before them, with such other evidence as either Government may submit.

Question of damages.

"The high contracting parties furthermore agree to cooperate in securing the adhesion of other powers to such regulations." a Article VIII. of the treaty related to damages, which had formed a subject of much difficulty and occasioned not a little delay in the negotiations. By this article it was provided that the high contracting parties, "having found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, either may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation."

New modus viven

di and the question of damages.

On the 18th of April, 1892, a modus vivendi was concluded in the form of a convention. In its first, second, third, and fourth articles it embodied the provisions of the modus vivendi of 1891. By its fifth article it introduced the subject of damages, which had been postponed by the treaty of arbitration. This article read as follows: "ARTICLE V. If the result of the arbitration be to affirm the right of British sealers to take seals in Bering Sea within the bounds claimed by the United States, under its purchase from Russia, then compensation shall be made by the United States to Great Britain

a It was agreed that any regulations made by the arbitrators within the powers given them by this article were obligatory on the two Governments, and were not merely recommendations which it was open to either Government to disregard. (Mr. Wharton, Act. Sec. of State, to Sir J. Pauncefote, Brit. min. March 6, 1893, MS. Notes to Gr. Br. XXII. 275, in reply to a note of Sir J. Pauncefote of March 2.)

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