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 a

modus vivendi.

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.

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

tion 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 di and the ques- 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.)

(for the use of her subjects) for abstaining from the exercise of that right during the pendency of the arbitration upon the basis of such a regulated and limited catch or catches as in the opinion of the arbitrators might have been taken without an undue diminution of the seal-herds; and, on the other hand, if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreement to limit the island catch to seven thousand five hundred a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators might have been taken without an undue diminution of the seal-herds.

"The amount awarded, if any, in either case shall be such as under all the circumstances is just and equitable, and shall be promptly paid."

tribunal of arbitration.

The treaty of arbitration was approved by the Senate of the United States on March 29, 1892, and the convention for the Constitution of the renewal of the modus vivendi on the 19th of April. Both instruments were ratified by the President on the 22d of April, and their ratifications were exchanged on the 7th of May. On the 9th of May they were duly proclaimed." As American arbitrators the President of the United States named the Hon. John M. Harlan, a justice of the Supreme Court of the United States, and the Hon John T. Morgan, a Senator of the United States. On the part of Great Britain the arbitrators named were the Right Hon. Lord Hannen, of the high court of appeal, and the Hon. Sir John Thompson, minister of justice and attorney-general for Canada. As neutral arbitrators the President of France named the Baron Alphonse de Courcel, a Senator and ambassador of France; the King of Italy, the Marquis Emilio Visconti Venosta, a Senator of the Kingdom and formerly minister of foreign affairs; and the King of Sweden and Norway, Mr. Gregers Gram, a minister of state." As agent the United States appointed the Hon. John W. Foster, who subsequently held the office of Secretary of State. The British Government designated as its agent the Hon. Charles H. Tupper, minister of marine and fisheries for the

a See President Harrison's annual message of Dec. 6, 1892.

The treaty provided that the foreign powers designated to select arbitrators should be requested to choose, if possible, jurists acquainted with the English language. The object of this stipulation was merely to facilitate the disposi tion of the business. (Mr. Wharton, Act. Sec. of State, to Mr. Vignaud, chargé, May 27, 1902, MS. Inst. France, XXII. 331; Mr. Wharton, Acting Sec. of State, to Mr. Coolidge, min. to France, tel. June 23, 1892, MS. Inst. France, XXII. 349; Mr. Foster, Sec. of State, to Mr. Coolidge, min. to France, tel. July 5, 1892, MS. Inst. France, XXII. 354; Mr. Uhl, Act. Sec. of State, to Mr. Eustis, amb. to France, June 20, 1894, MS. Inst. France, XXII. 657.)

Dominion of Canada, while Mr. R. P. Maxwell, of the foreign office, acted as assistant agent and Mr. Charles Russell as solicitor.

As counsel for the United States there were retained the Hon. Edward J. Phelps, Mr. James C. Carter, the Hon. Henry W. Blodgett, and Mr. F. R. Coudert. Mr. Robert Lansing and Mr. William Williams acted with them as associate counsel. Counsel on the part of Great Britain were Sir Charles Russell, Q. C., M. P., Her Majesty's attorney-general; Sir Richard Webster, Q. C., M. P., and Mr. Christopher Robinson, Q. C., of Canada; and they were assisted by Mr. H. M. Box, barrister at law."

66

In the counter case of the United States reference was made to "Russia's action during the summer of 1892," as the first-known instance of the warning or seizure of vessels by that Government for killing seals in the waters of Bering Sea. It seems that there was one seizure by Russia, or under Russian authority, of a foreign vessel for taking seals in Bering Sea prior to the cases in 1892. This was the case of the British Columbian schooner Araunah in 1888. The master of the schooner alleged that she was seized off Copper Island about six miles from the nearest land. The captors alleged that she was nearer. It appeared, however, that the crew of the schooner were carrying on their operations in canoes between the schooner and the land, and it was affirmed that two of the canoes were within half a mile of the shore. Lord Salisbury said Her Majesty's Government were of opinion that, even if the Araunah at the time of the seizure was herself outside the three-mile territorial limit, the fact that she was, by means of her boats, carrying on fishing within Russian waters without the prescribed license warranted her seizure and confiscation according to the provisions of the municipal law regulating the use of those waters." The " The "provisions of the municipal law" referred to by Lord Salisbury were the regulations relating to "trading, hunting, and fishing" "on the Russian coast or islands in the Okhotsk and Bering seas, or on the northeastern coast of Asia, or within their sea boundary line," which were published in San Francisco and in Japanese ports in 1881 and 1882. These regulations were made the subject of inquiry by the Government of the United States at the time through its diplomatic representative at St. Petersburg, and the correspondence was published in the volume of Foreign Relations for M. de Giers, the Russian minister of foreign affairs, in a note of May 8 (20), 1882, stated that the regulations extended "strictly to the territorial waters of Russia only." The vessel seized by the

1882.

C

« As to the cases and counter cases of the two Governments, and the arguments of counsel, see Moore, Int. Arbitrations. I. 806–823, 826-827, 827–904. Blue Book Russia No. 1 (1890).”

For. Rel. 1882, pp. 447-451, 452–454. The inquiry of the United States related to cod fishing; in the case of the Araunah M. de Giers stated that the regulations governed sealing also.