No attempt was made in them to define the extent of waters to which their provisions applied; nor did any international controversy subsequently take place as to the killing of fur seals in Bering Sea till 1886. In 1889, however, while the question that was raised in 1886 was still pending, an effort was made to amend § 1956, R. S., which prohibits the killing of any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, “within the limits of Alaska Territory, or in the waters thereof," so as to make it “include and apply to all the waters of Bering Sea in Alaska, embraced within the boundary lines mentioned and described in the treaty with Russia. . . by which the Territory of Alaska was ceded to the United States." The amendment passed the House; but was changed in the Senate; and by the bill, as it became a law, March 2, 1889, § 1956 was merely "declared to include and apply to all the dominion of the United States in the waters of Bering Sea." a

August 3, 1870, the Acting Secretary of the Treasury, in pursuance of the act of July 1, 1870, leased the privilege of taking fur seals on the islands of St. Paul and St. George to the Alaska Commercial Company, a corporation organized under the laws of the State of California. March 25, 1872, Mr. T. G. Phelps called the attention of the Treasury Department to reports that expeditions were fitting out in San Francisco, Hawaii, and Australia for the purpose of intercepting the seals at the Aleutian Islands; and he suggested whether the act of July 1, 1870, did not authorize interference by means of revenue cutters "to prevent foreigners and others from doing such an irreparable mischief to this valuable interest." Mr. Boutwell, who was then Secretary of the Treasury, April 19, 1872, replied that the Treasury Department had been advised that such an employment of the revenue cutters would not be " a paying one, inasmuch as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel," and that it was not apprehended that they would be driven from their accustomed resorts, even were such attempts made. "In addition," said Mr. Boutwell, "I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempts within a marine league of the shore. As at present advised, I do not think it expedient to carry out your suggestions, but

a 25 Stats. 1009; Congressional Record, 50 Cong. 2 sess. vol. 20, part 3, pp. 2282, 2372, 2426, 2448, 2502, 2563, 2614, 2672; Conrad, Act. At.-Gen., May 20, 1896, 21 Op. 346. In view of the award of the Paris tribunal, these words must be construed to mean the water within three marine miles of the shore. (The Alexander, 75 Fed. Rep. 519, 44 C. C. A. 659; Pacific Trading Co. v. United States, id.; the La Ninfa, 75 Fed. Rep. 513, 44 C. C. A. 648; Whitelaw v. United States, id.)

I will thank you to communicate to the Department any further facts or information you may be able to gather upon the subject."

a

March 12, 1881, Mr. French, Acting Secretary of the Treasury, in a letter to Mr. D. A. Ancona, a citizen of San Francisco, took the ground that all the waters eastward of the water line in the treaty of 1867 were "comprised within the waters of Alaska Territory," and that the penalties prescribed by law against killing fur-bearing animals would therefore attach to violations of the law within those limits." March 16, 1886, a copy of this letter was communicated to the collector of customs at San Francisco, as conveying the construction placed by the Treasury Department on the statutes of the United States. In September and November, 1886, the British minister at Washington represented that three British Columbian sealSeizures in 1886. ing schooners, the Carolena, Onward, and Thornton, had been seized in Bering Sea by the United States revenue cutter Corwin; that the master and mate of the Thornton had been brought before Judge Dawson, of the United States court at Sitka for trial; that the evidence given by the officers of the revenue cutter showed that the vessel was seized about sixty or seventy miles southeast of St. Georges Island for the offense of hunting and killing seals in that part of Bering Sea east of the water line in the treaty of 1867; that the judge in his charge to the jury, after quoting the first article of that treaty, declared that all the waters east of the line in question were "comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals must therefore attach against any violation of law within the limits heretofore described;" that, the jury having found a verdict of guilty, the master of the Thornton was sentenced to imprisonment for thirty days and to pay a fine of $500, and the mate to imprisonment for thirty days and to pay a fine of $300; and that there was reason to believe that the masters and mates of the Onward and Carolena had since been tried and sentenced to undergo similar penalties.

In regard to the seizures the Department of State then possessed no information; but on February 3, 1887, Mr. Bayard, who was then

a Papers relating to Behring Sea Fisheries, 124-126. In a letter of January 18, 1888, to Mr. W. W. Eaton, then one of the representatives of the Alaska Commercial Company, Mr. Boutwell, referring to the letter which he had written as Secretary of the Treasury, said that, when compared with the letter to which it was a reply, it was apparent that it "had reference solely to the waters of the Pacific Ocean south of the Aleutian Islands." (House Report 3883, 50 Cong. 2 sess. XII.)

S. Ex. Doc. 106, 50 Cong. sess. 280, 281.

H. Report 3885, 50 Cong. 2 sess. xi. See United States r. La Ninfa, 49 Fed. Rep. 575; United States . The James G. Swan, 50 id. 108; United States v. The Alexander, 60 id. 914.

Secretary of State, informed the British minister "that, without conclusion at this time of any questions which may be found to be involved in these cases. orders have 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." a

By formal copies of the judicial proceedings afterwards received in Washington, it appeared that the three vessels in question were condemned October 4, 1886, for having been "found engaged in killing fur seal within the limits of Alaska Territory and in the waters thereof in violation of section 1956 of the Revised Statutes of the United States," and that they were, on February 9, 1887, ordered to be sold. It thus appeared that the condemnation of the vessels rested on the same ground as the conviction and imprisonment of their officers."

In 1887 other vessels were seized, including the Grace, Dolphin, and W. P. Sayward. October 11, 1887, Judge Dawson filed an opinion in the cases of the Grace, Dolphin, and certain other vessels, all of which he declared to be forfeited. His decision was based on the theory of mare clausums

ation, 1887.

August 19, 1887, Mr. Bayard instructed the ministers of the United States in France, Great Britain, Germany, Japan, Proposal of cooper- Russia, and Sweden and Norway, to request the Governments to which they were accredited to cooperate with the United States " for the better protection of the fur-seal fisheries in Bering Sea." "Without raising any question," said Mr. Bayard, "as to the exceptional measures which the peculiar character of the property in question 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

a S. Ex. Doc. 106, 50 Cong. 2 sess. 12.

The text of Judge Dawson's charge to the jury in the case of the officers of the Thornton on August 30, 1886, may be found at page 113, Appendix 1, Case of the United States, Fur-Seal Arbitration, II. After quoting the language of the first article of the treaty of cession of March 30, 1867, he declared that “Russia had claimed and exercised jurisdiction over all that portion of Bering Sea embraced within the boundary lines set forth in the treaty;" that “that claim bad been tacitly recognized and acquiesced in by the other maritime powers of the world for a long series of years prior to the treaty;" and that the dominion of Russia having passed to the United States, "all the waters within the boundary set forth in this treaty to the western end of the Aleutian Archipelago and chain of islands are to be considered as comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals must therefore attach against any violation of law within the limits before described."

c Case of the United States, App. I. 115–121, Fur-Seal Arbitration, II,

instructed by the President so to inform you to attain the desired ends by international cooperation." a

The Governments of France, Great Britain, Japan, and Russia promptly made favorable responses, and negotiations with the British and Russian Governments were entered upon at London. In May, 1888, however, they were suspended.

Views of Mr.
Phelps.

A report on the suspended negotiations was made by Mr. Phelps, United States minister at London, in a dispatch of September 12, 1888. In this report Mr. Phelps stated that he had had an interview with Lord Salisbury on the 13th of August, one of the objects of which was to urge the completion of the convention between the United States, Great Britain, and Russia for the protection of the fur seals. This convention had, said Mr. Phelps, "been virtually agreed on verbally, except in its details," but the consideration of it had been suspended at the request of the Canadian government; and he expressed the opinion that the British Government would not execute it without the concurrence of Canada, and that the concurrence of Canada could not reasonably be expected. Mr. Phelps continued:

"Under these circumstances the Government of the United States must, in my opinion, either submit to have these valuable fisheries destroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation. 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

a S. Ex. Doc. 106, 50 Cong. 2 sess. 84. As to a proposal to appoint a close time for the seal fishing, adjacent to Greenland, see Mr. Fish, Sec. of State, to Sir E. Thornton, British min., Sept. 17, 1875, MS. Notes to Great Britain, XVII. 33. bS. Ex. Doc. 106, 50 Cong. 2 sess. 85, 88, 97, 100, 107, 116.

H. Doc. 551-57

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."

Seizures in 1889.

Positions of Mr.
Blaine.

a

In 1888 no seizures were made, but on August 24, 1889, Mr. Edwardes, British chargé d'affaires ad interim, called attention to rumors of fresh seizures. Subsequently he left at the Department of State two communications from Lord Salisbury, both dated Oct. 2, 1888, one of which related to the renewal of the suspended negotiations, while the other protested against the new seizures, on the ground that they were wholly unjustified by international law. These communications were answered by Mr. Blaine on the 22d of January, 1890. In this reply Mr. Blaine took the ground that "the Canadian vessels arrested and detained in the Bering Sea were engaged in a pursuit that was in itself contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States." To establish this ground it was not necessary, he said, " to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Bering Sea," or "to define the powers and privileges ceded by His Imperial Majesty the Emperor of Russia in the treaty by which the Alaskan territory was transferred to the United States." It could not be unknown to Her Majesty's Government that one of the most valuable sources of revenue from the Alaskan possessions was the furseal fisheries of Bering Sea. "Those fisheries had," said Mr. Blaine,

a Case of the United States, Appendix I. 181–183, Fur Seal Arbitration, II. "My endeavors to establish by international cooperation measures for the prevention of the extermination of fur-seals in Bering Sea have not been relaxed, and I have hopes of being enabled shortly to submit an effective and satisfactory conventional projet with the maritime powers for the approval of the Senate." (President Cleveland, annual message, Dec. 3, 1888, For. Rel. 1888. I. p. xii.)

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