in the protest presented by Sir Julian Pauncefote to Mr. Blaine on June 14, 1890. Her Majesty's government thought that the prohibition of sealing, if it stood alone, would be unjust to British sealers, if the decision of the arbitrators should be adverse to the United States. They were, however, willing, when the treaty should have been ratified, to agree to an arrangement similar to that of 1891, if the United States would consent that the arbitrators should, in the event of an adverse decisión, assess the damages which the prohibition of sealing should have inflicted on British sealers during the pendency of the arbitration; and, in the event of a decision adverse to Great Britain, that they should assess the damages which the limitation of slaughter should during the pendency of the arbitration have inflicted on the United States or its lessees.1 On the 18th of April 1892 a modus vivendi was concluded in the form of a convention.

New Modus Vivendi

of Damages.

and the Question 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 Behring 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 (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."

For. Rel. 1891, 612-628.

Tribunal of Arbitration.

The treaty of arbitration was approved by Constitution of the the Senate of the United States on March 29, 1892, and the convention for 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. The way for the arbitration having thus been cleared, the two governments proceeded to constitute the tribunal of arbitration, and agreed on an identic note to be addressed to the governments of France, Italy, and Sweden and Norway, with a view to the appointment of the neutral arbitrators.' 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 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.

The secretary of the tribunal was M. A. Imbert, a minister plenipotentiary of France. There were also two cosecretaries,

1 For Rel. 1891, 612-643.

Messrs. A. Bailly Blanchard and H. Cunynghame, barristers at law, and four assistant secretaries, MM. C. Chevalier Baujotti, Henri Feer, C. Vicomte de Manneville, and Liebert.1

Mr. Foster entered on his duties as agent in Delivery of Cases. May 1892, and at once proceeded to collect evidence in an authentic form tending to establish the position assumed by the United States respecting the five points set forth in Article VI. of the treaty and embracing the facts necessary to a determination of the regulations referred to in Article VII. Between the 1st and 6th of September 1892, within the time fixed by the treaty, he delivered to the agent of Great Britain and to the arbitrators the printed Case of the United States, accompanied by the documents, official correspondence, and other evidence relied upon in support of it. In like manner the printed Case of Great Britain was delivered by the agent of that government. The Case of the United States embraced questions of fact as well as of law. The Case of Great Britain, however, was found to contain no evidence touching the nature and habits of the seals, the consideration of which was deemed by the United States to be necessary to the determination by the tribunal of questions of right as well as of regulations.

On the 27th of September 1892 Mr. Foster, Question as to the as Secretary of State, by direction of the British Case and the President addressed a note to the British Order of Procedure. minister in Washington protesting against

this omission in the Case of Great Britain as a failure to comply with the requirements of the treaty. In this note it was maintained that it was manifestly contemplated that both parties to the treaty should simultaneously submit to the arbitrators and to each other their propositions, their claims, and their evidence upon all points in dispute, and that to reserve

1 Maj. E. W. Halford acted as disbursing officer of the United States, and there were also employed by the United States, in connection with the arbitration, Messrs. J. S. Brown, Hubbard T. Smith, François S. Jones, William H. Lewis, J. T. Coughlin, J. W. Hulse, and E. H. McDermott. And there were employed by Great Britain in various capacities Messrs. John Anderson, Ashley Froude, C. M. G.; J. Pope, F. T. Piggott, J. Macoun, H. Hannen, and Douglas Stewart. Messrs. Cherer, Bennet, and Davis, of London, were employed as shorthand writers by the British agent. The Messrs. Chamerot, of Paris, acted as printers for the tribunal.

2 Mr. Foster was commissioned as agent of the United States in the furseal arbitration June 6, 1892. June 29, 1892, he became Secretary of State, which office he resigned February 23, 1893.

the evidence which Great Britain might choose to submit concerning the nature and habits and preservation of the fur seal for the Counter Case would deprive the United States of any opportunity to meet it by rebutting, explanatory, or impeaching testimony. To this representation the British Government replied that, in their opinion, the decision of the questions of right defined in Article VI. of the treaty depended upon matters of law, and not upon the habits of seals and the incidents of seal life; that the concurrent regulations referred to in Article VII. were not to be taken up by the tribunal except in the contingency of a decision unfavorable to the United States under Article VI., and that it would have been illogical to introduce into the British Case matters properly pertinent to the subject of concurrent regulations. But as the United States had expressed a different view, an offer was made to furnish at once to that government and to the arbitrators the report of the British commissioners, Messrs. Baden-Powell and Dawson, under Article IX. of the treaty, which might be treated as a part of the Case of Great Britain. The Secretary of State accepted this offer, assuming that the report contained substantially all the matter on which the British Government would rely to support its contentions in respect of the nature and habits of the fur seals, and reserving the right to oppose the submission to the arbitrators of any matter which might be inserted in the British Counter Case not relevant by way of reply to the Case of the United States. He concurred in the view that the claims of right depended on questions of law, but insisted that the precise questions of law could not be known and determined without knowledge of the nature and habits of the fur seals. On the 30th of September 1892 the agent of the United States received notice from the agent of Great Britain that, in accordance with the provisions of Article IV. of the treaty of arbitration, the British Government would require an additional period of sixty days within which to deliver its Counter Case; and on the 15th of November the British minister in Washington delivered to the agent of the United States printed copies of the report of the British commissioners, under Article IX. of the treaty, which was found to contain a statement and discussion of the nature and habits of the fur seals, of the condition of the Pribilof seal herd, and of the methods and effects of the killing of seals both in the water and on the land.

In this relation it should be stated that the Report of Joint Comjoint commission under article IX. was unmission of Experts. able to make more than a formal joint report. Its meetings, beginning on Monday the 8th of February 1892, continued until Friday the 4th of the following month. As a result of these meetings the commissioners found themselves "in thorough agreement that for industrial as well as for other obvious reasons it is incumbent upon all nations, and particularly upon those having direct commercial interests in fur seals, to provide for their proper protection and preservation." Their joint and several investigations had also led them to certain conclusions in regard to the facts of seal life, and in regard to such remedies as might be necessary to secure the fur seal against depletion or commercial extermination. They found that "since the Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Pribilof Islands" had taken place, that such diminution had "been cumulative in effect," and that it was "the result of excessive killing by man." But they found that considerable difference of opinion existed among them on certain fundamental propositions, which rendered it impossible in a satisfactory manner to express their views in a joint report, and they agreed that they could most conveniently state their respective conclusions in the "several reports" which they were authorized to submit to their respective governments. A joint report to this effect was signed on the 4th of March by Messrs. Mendenhall, Merriam, Baden-Powell, and Dawson, as commissioners, and by Messrs. J. S. Brown and A. A. Froude as joint secretaries. The separate report of the American commissioners maintained' that the number of seals frequenting the Pribilof Islands had greatly diminished during the past few years, that the decrease in the number of seals was the result of pelagic sealing, and that the proper remedy was the suppression of such sealing. The separate report of the British commissioners controverted these statements as to the destructive effects of pelagic sealing, and contended that the diminution in the seal herd was due largely to the raids made on the breeding islands, chiefly by citizens of the United States, and to the methods of driving and killing the seals,

Fur Seal Arbitration, II. 311.

2 Fur Seal Arbitration, VI.