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ordered to be sold. It thus appeared that the condemation of the vessels rested on the same ground as the conviction and imprisonment of their officers.'

On the 11th of August 1887 the British Seizures in 1887. minister informed Mr. Bayard that the commander in chief of Her Majesty's naval forces in the Pacific had reported that three more British Columbian sealing schooners had been seized by United States cruisers in Behring Sea a long distance from Sitka, and that several other vessels were in sight being towed in. In conveying this information the British minister stated that he was requested by the Marquis of Salisbury, then principal secretary of state for foreign affairs, to say that, in view of "the assurances" given in Mr. Bayard's note of the 3d of February, Her Majesty's government had assumed that, pending the conclusion of discussions between the two governments on the general questions involved, no further seizures would be made by order of the United States. On the 13th of August Mr. Bayard, replying to this communication, disclaimed having given any "assur ances" of the purport asserted, his note of the 3d of February having merely stated that, without conclusion at that time of any questions which might be found to be involved, the President had directed the discharge of the vessels then under seizure, and the discontinuance of all proceedings in connection therewith. He further declared that he had had "no reason to anticipate any other seizures," and that he had "no knowl edge whatever of the circumstances under which such seizures have been made." It subsequently transpired that the new

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 143, 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 Behring Sea embraced within the boundary lines set forth in the treaty;" that "that claim had 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.” The report of the charge in the Sitka newspaper of September 4, 1886, which was quoted by Lord Iddesleigh, appears to have been correct. 2S. Ex. Doc. 106, 50 Cong. 2 sess. 49.

seizures were made by the United States revenue cutter Richard Rush, and that the names of the vessels were the Grace, Dolphin, and W. P. Sayward. Other seizures also were made.

Condemnation of
Vessels.

On the 11th of October 1887 Judge Dawson filed an elaborate opinion in the cases of the Grace, Dolphin, and certain other vessels, all of which he declared to be forfeited. In this opinion he said. that the issue presented involved "an examination of a most pertinent and critical question of international law," and that it would be "necessary to ascertain, first, the right of the Imperial Government of Russia to the Behring Sea anterior to the treaty of March 30, 1867." "For information upon this subject," he.remarked, "I am largely indebted to Mr. N. L. Jeffries for a collection and citation of authorities, and historical events, and for the want of books at my command upon this question, I am compelled to rely for historical facts upon his carefully prepared brief." The brief in question was devoted to the maintenance of the claim of mare clausum, and Judge Dawson, after reviewing and adopting the various arguments advanced in it, reached the same conclusion as that at which he had arrived in the cases previously decided by him.2

Non-Execution of
Orders of Release.

On the 29th of September 1887 the British minister, referring to Mr. Bayard's note of the 3d of the preceding February, inquired the reason for the delay in the release of the Carolena, Onward, and Thornton, the first vessels that were seized, saying that Her Majesty's government had been officially informed that they had not been discharged. In response to an inquiry on the subject, Mr. Bayard was informed by Mr. Garland, then Attorney-General of the United States, on the 12th of October, that he had just received a letter from the marshal of the United States at Sitka, in which the latter said that the telegraphic order of the 26th of the preceding January, directing the vessels to be released, "had been thought to be not genuine, and had not been acted upon." Mr. Garland stated that he had again telegraphed to the marshal, directing the execution of the order of release."

The title of the brief is "The Dominion of Behring Sea." It is dated at Washington, January 12, 1887, and is signed "N. L. Jeffries, Atty. for the Alaska Com. Co." It seems that there was also a brief prepared in the Attorney-General's office. (N. Am. Rev. CLXI. (1895), 694.)

2 Case of the United States, Appendix I. 115-121, Fur-Seal Arbitration, II. 3 S. Ex. Doc. 106, 50 Cong. 2 sess. 56.

Proposal for Protection of Fur Seals by Joint Action.

On the 19th of August 1887 Mr. Bayard addressed to the ministers of the United States to France, Germany, Great Britain, Japan, Russia, and Sweden and Norway an instruction directing them to request the governments to which they were respectively accredited to cooperate with the United States "for the better protection of the fur-seal fisheries in Behring Sea." Mr. Bayard said:

"Without raising any question 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 instructed by the President so to inform you to attain the desired ends by international cooperation. It is well known that the unregulated and indiscriminate killing of seals in many parts of the world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their number. Under these circumstances, and in view of the common interest of all nations in preventing the indiscriminate destruction and consequent extermination of an animal which contributes so importantly to the commercial wealth and general use of mankind, you are hereby instructed to draw the attention of the government to which you are accredited to the subject, and to invite it to enter into such an arrangement with the Government of the United States as will prevent the citizens of either country from killing seals in Behring Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy exterminatian of those animals and consequent serious loss to mankind.”1

Governments.

The French Government, while adverting to Responses of Foreign the fact that there were not many French ships engaged in the seal fisheries, expressed a willingness to consider a draft of a convention for the pur. pose indicated by Mr. Bayard. The Government of Japan expressed anxiety to enter into an arrangement which should provide for the protection not only of the fur seals in Behring Sea, but also of the sea otter and fur seals on the coasts of Japan. The Government of Russia expressed its concurrence in Mr. Bayard's views, saying that it had for a long time been considering what means could be taken to remedy a state of things which was prejudicial not only to commerce and rev

3

1S. Ex. Doc. 106, 50 Cong. 2 sess. 84.

2 Id. 85.

3 Id. 107.

enue, but also to the well-being and even to the existence of its people in the extreme northeast.3 Pursuant to the sugges tion of Mr. Bayard, the Russian ambassador at London was instructed to put himself in communication with the minister of the United States at that capital, with a view to promote the common object of the two governments.

Great Britain's
Response.

On the part of Great Britain, Lord Salisbury promptly acquiesced in the proposal of Mr. Bayard for cooperative action, and sug gested to Mr. Phelps, then minister of the United States in London, that he should obtain from his government and submit to him a sketch of a system of regulations which would be adequate for the purpose sought to be attained.

Mr. Bayard's Proposals for an Arrangement.

Such a sketch Mr. Bayard sent to Mr. Phelps on the 7th of February 1888. In it he proposed, as the only way to obviate the destruction of the fur seals in Behring Sea, that the United States, Great Britain, and other interested powers should "take concerted action to prevent their citizens or subjects from killing fur seals with firearms, or other destructive weapons, north of 50° of north latitude, and between 160° of longitude west and 170° of longitude east from Greenwich, during the period intervening between April 15 and November 1." The grounds of this proposal Mr. Bayard set forth as follows:

"All those who have made a study of the seals in Behring Sea are agreed that, on an average, from five to six monthsthat is to say, from the middle or toward the end of spring till the middle or end of October-are spent by them in those waters in breeding and in rearing their young. During this time they have their rookeries on the islands of St. Paul and St. George, which constitute the Pribilof group and belong to the United States, and on the Commander Islands, which belong to Russia. But the number of animals resorting to the latter group is small in comparison with that resorting to the former. The rest of the year they are supposed to spend in the open sea south of the Aleutian Islands.

"Their migration northward, which has been stated as taking place during the spring and till the middle of June, is made through the numerous passes in the long chain of the Aleutian Islands, above which the courses of their travel converge chiefly to the Pribilof group. During this migration the female seals are so advanced in pregnancy that they generally

3S. Ex. Doc. 106, 50 Cong. 2 sess. 116.

give birth to their young, which are commonly called pups, within two weeks after reaching the rookeries. Between the time of the birth of the pups and of the migration of the seals from the islands in the autumn the females are occupied in suckling their young; and by far the largest part of the seals found at a distance from the islands in Behring Sea during the summer and early autumn are females in search of food, which is made doubly necessary to enable them to suckle their young as well as to support a condition of renewed pregnancy, which begins in a week or a little more after their delivery.

"The male seals, or bulls, as they are commonly called, require little food while on the islands, where they remain guarding their harems, watching the rookeries, and sustaining existence on the large amount of blubber which they have secreted beneath their skins and which is gradually absorbed during the five or six succeeding months.

"Moreover, it is impossible to distinguish the male from the female seals in the water, or pregnant females from those that are not so. When the animals are killed in the water with firearms many sink at once and are never recovered, and some authorities state that not more than one out of three of those so slaughtered is ever secured. This may, however, be an overestimate of the number lost.

"It is thus apparent that to permit the destruction of the seals by the use of firearms, nets, or other mischievous means in Behring Sea would result in the speedy extermination of the race. There appears to be no difference of opinion on this subject among experts. And the fact is so clearly and forcibly stated in the report of the inspector of fisheries for British Columbia of the 31st of December 1886 that I will quote therefrom the following pertinent passage:

"There were killed this year, so far, from 40,000 to 50,000 fur seals, which have been taken by schooners from San Francisco and Victoria. The greater number were killed in Behring Sea, and were nearly all cows or female seals. This enormous catch, with the increase which will take place when the vessels fitting up every year are ready, will, I am afraid, soon deplete our fur-seal fishery, and it is a great pity that such a valuable industry could not in some way be protected."1

"To prevent the killing within a marine belt of 40 or 50 miles from the islands during that period would be ineffectual as a preservative measure. This would clearly be so during the approach of the seals to the islands. And after their arrival there such a limit of protection would also be insufficient, since the rapid progress of the seals through the water enables them to go great distances from the islands in so short a time that it has been calculated that an ordinary

1 Report of Thomas Mowat, inspector of fisheries for British Columbia, Canadian Sessional Papers, vol. 15, No. 16, 268: Ottawa, 1887.

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