KUR SEAL ARBITRATION.

PROCEEDINGS

Tribunal of Arbitration,

CONVENED AT PARIS

UNDER THE

TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1893,

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|i!}-T^AJl,

DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES

WATERS OF BERING SEA.

VOLUME X.

WASHINGTON:

GOVERNMENT PRINTING OFFICE,

18 95.

/ 9- v^J'i^S'^ -/-.^..we /:</

BEHRING SEA ARBITRATION.

ARGUMENT

OF

HER MAJESTY'S GOVEMMENT.

TABLE OF CONTENTS.

The Argument is arranged as follows: Page.

Prefticc. 1-10

Stjiteuient of questions raised in Article VI of the Arbitration Treaty. ..^ 11

I'ropositions niaiutniiied in I'art I of the Argiunciit 11

Slateineut of vaiyin;,^ character of the United JStates contention 12

The ariaugcmeut of the Argument set out 13

AEGUMENT.

Part I.

Argument addressed to the first four questions for decision under Article VI

of the Arbitration Treaty 14

Conclusions established by the foregoing argument 26

Part II.

Argument addressed to the 5ih question for decision under Article VI of the
Arbilratioii Treaty, viz. : Has the United States any right of protection or

property in the fur-seals * 27

Propositions maintained in Part II 27

Statement of the law of the United States and Great Britain as to prop-
erty in animals /Vrfl' naturw 31

A])plication of principles of property and possession of wild animals to

seals 33

The claim to protection apart from property 36

The United States argument from suggested analogy of laws of other

nations considered and answered 39

The Falkland Islands 41

New Zealand 41

Cape of Good Hope 43

Canada 43

Newfoundland 44

Greenland or Jan Mayen fisheries 45

The principles of Fishery Conventions considered 46

Russia. White Sea 46

Behring Sea and Sea of Okhotsk 47

Caspian Sea 47

Uruguay 48

Chile ..\ 48

Argentine Republic 48

Japan 48

Irish oyster fisheries 50

Scotch herring fisheries 51

Ceylon pearl tisheries 51

Australian jiearl fisheries 52

France 52

Algerian coral fisheries .53

Italian coral fisheries 53

Norwegian whale fisheries 53

Colombian pearl fisheries 54

Mexican pearl fisheries 54

3

4 ARGUMENT OF GREAT BRITAIN.

Argument addressed to the 5th question, etc.— Continued. Page.

Examination of legal principles referred to in analysis of foreign laws.. . 55
I. Extra-territorial laws of a State have no application to foreigners. 55
II. Laws of Great Britain have no extra-territorial application to

foreigners 56

III. British colonies have no power of extra-territorial legislation for

foreigners 58

IV. How far international law recognizes a right to possession of parts

of the hed of the sea considered 59

V. Ahsence of analogy between protection of swimming animals and

of oyster and coral beds demonstrated 50

VI. Absence of consent of nations to principle of riglit claimed by the

United States 60

Examination of the United States argument based on the " Hovering

Acts" 60

Examination of the United States argument based on the " St. Helena

Act, 1815" 61

Examination of the United States argument based on the " Quarantine

Act, 1825" 62

General conclusion on this branch of the Case 62

Part III.

Argument addressed to the question of Regulations 63

Part IV.

Damages and compensation —

1. British claim for damages 71

2. " " compensation 73

3. United States claim for damages 74

4. " " compensation 74

APPENDIX.

No. 1. Remarks on the United States Counter-Case 77

No. 2. Remarks on the United States Evidence 143

Index 159

BEHRING SEA ARBITRATION.

ARGUMENT OF HER MAJESTY'S GOVERNMENT.

PREFACE.

In August 1886, without any previous protest or warn-
ing, the Government of the United States seized the British
schooners '^Carolena," "Onward," and "Thornton" in
Beliring Sea, which were then engaged in pelagic sealing
there.

The "Carolena" was seized in latitude 55° 50' north,
longitude 168° 53' west; the " Onward " in latitude 54° 52'
north, longitude 167° 55' west, and the "Thornton" in about
the same latitude and longitude as the " Carolena." These
schooners were, at the time of their respective seizures, at
a distance of more than 60 miles from the nearest land, St.
George and Unalaska Islands. After capture they were
taken by the United States revenue-cutter " Corwin " to
Unalaska. They were tried before Judge Dawson, of the
United States District Court of Sitka, and the masters and
mates of the vessels were fined in a considerable sum, and,
in addition, sentenced to a term of imprisonment. The
vessels, meanwhile, were detained.

On receipt of intelligence of these seizures, Sir L. S.
Sackville West, British Minister at Washington, at once
made inquiries; and by the instructions of Her Majesty's
Government, on the 21st October, 1886, he entered a formal
protest against these seizures of British vessels.

Mr. Bayard, the Secretary of State, wrote, on the 3rd
February, 1887, to Sir L. S. Sackville West, announcing
the discharge of the vessels, and the release of all persons
under arrest, adding that this order was issued "without
conclusion of any questions which may be found to be

involved in these cases of seizure."
2 The men in custody were released under circum-

stances of great hardship, being turned adrift, with-
out means, in a place many hundreds of miles from their
homes.

On the 12th April, 1887, Mr. Bayard wrote that Regula-
tions and Instructions to Government vessels were being
framed, and that he would, at the earliest possible date,
communicate with Sir L. West; but without any such com-
munication being made fresh seizures took jilace in July
and August of 1887, and renewed protest was made by
Great Britain.

ARGUMENT OF GREAT BRITAm.

Ko seizure was effected in 1888, though pelagic sealing
by British vessels was pursued in that year in Behring Sea,

In 1880 five British ships were seized in Behring Sea,
and three others were peremptorily ordered out of the Sea.

In 1890 no seizures were made, though pelagic seahng
was still carried on in Behring Sea.

The (xoverninent of the Queen remonstrated against the
high-handed action of the United States as without war-
rant of law, and as an unjustifiable invasion of the rights
of British subjects. But the correspondence has been car-
ried on by them with an earnest desire to avoid reconrse to
measures of force in retaliation for those adopted by the
United States, and in the confident belief that their rights
would be surely and effectively vindicated by j)acific
methods, and just redress obtained for the wrongs com-
mitted.

As the result of prolonged negotiation and discussion
the Treaty of Arbitration, from which this Tribunal derives
its authority, was entered into, and on the 1 8th April, 1892,
the Convention or modus vivendi (intended to cover the
period which might elapse before the award of the Arbi-
trators) was concluded.

Hence it is that now, and for the seventh time in the course
of the present century, the (Tovernments of Great Britain
and of the United States ai)pear before an International
Tribunal of Arbitration. To-day they submit existing dif-
ferences to a distinguished body of jurists, with the full
confidence that, in so far as the adjustment of those differ-
ences depends upon the ascertainment of legal rights, this
august Tribunal will act upon recognized principles of law,
and ujion such jmnciples alone; and with equal confidence
that, in so far as that adjustment may properly have
3 regard to other than legal rights, the decision of this

Tribunal will be just and equitable, having regard to
all the circumstances of the case, and to all the important
interests involved. This Tribunal will seek neither to
diminish nor to add to the powers with which it is invested,
and it cannot be doubted that each of the Governments
will loyally accept its authoritative judgment.

Before proceeding with the Argument, which is now pre-
sented in accordance with the procedure prescribed by the
Treaty, and which recapitulates the facts and discusses in
some detail the principles applicable to them, the Govern-
ment of the Queen deem it ex])edient to j^ut before the
Arbitrators a general view of the claims advanced by the
United States, and of the contentions which arise in rela-
tion to them.

Those claims are divisible into two heads. Under the
first head the United States claim, in various modes, exclu-
sive rights in and over the greater extent of that part of
the Pacific Ocean called Behring Sea, and in the fur-seals
frequenting that sea, rights which they contend justify them
in excluding the ships of every other nation from the pur-
suit of pelagic sealing therein, and in searching, seizing,
and condemning such ships as engage in that pursuit.

This iSj indeed, hardly a full statement of the pretensions

ARGUMENT OF GREAT BRITAIN.

advanced, for, carried to their logical conclusions, some of
the arguments of the United States would equally justify
them in treating that vast expanse of water as a mare
clausum to all the world: so that the navigation of those
waters by the nations of the world would be dependent
solely on the moderate exercise by the United States of
rights which they claim to possess, but upon which they do
not insist.

Under the second head the United States claim that, by
the authority of this Internatioiuil Tribunal, concurrent
rules shall be established for the proper protection and
preservation of fur-seals in or habitually resorting to Beh-
ring Sea.

It will be seen how essentially these two divisions of claim
differ one from the other.

Under the first division the United States invoke the high
authority of this Tribunal to aflirm in them the existence
of dominion and jurisdiction which conflict with long-estab-
lished principles touching the rights of nations and the

freedom of the seas.
4 The Government of the Queen deny the existence

of any such dominion and jurisdiction, and to their
assertion have offered and continue to offer strenuous
opposition.

But, on the other hand, when the rights asserted are dis-
tinctly abandoned or are negatived, and when it is admitted
that the concurrence of Great Britain is required to any
Kegulations, the Government of the Queen will willingly
join with the United States in seeking the aid of this impar-
tial Tribunal in the consideration of Eules which shall
recognize that the protection and preservation of fur-seals
is not a matter affecting the interests of the United States
alone, and which shall be just and expedient in view of all
the circumstances of the case, and having regard to all
interests which are concerned.

How, then, is the case put as one of right?

Seldom, if ever, has such a claim been based upon such
varying contentions.

Seldom have the arguments supporting a claim of right
been shifted so lightly from one standpoint to another.

Now it is asserted as a claim of old descent from Eussia;
then, when it is .shown that Russia neither had nor claimed
to have a right at all commensurate, it becomes a claim by
the United States in their own right of dominion.

At one time it is a claim to a vast area of Behring Sea as
territorial waters ; but, when the limits of territorial waters
assented to by all nations are insisted on, it becomes reduced
to a claim of jurisdiction on the high sea — a claim based
upon a false analogy.

Fur-seals are undeniably animals /ercB naturcOj yet a claim
to property therein, with all its attendant rights, is asserted,
and they are gravely relegated to the same category as a
herd of cattle on the plains. Then, when the impossil)ility
of establishing property in free-swimming anijnals in the
ocean is demojistrated, the i^retension resolves itself into a
general and undefined claim to protect the seals in the
Pacific.

8 ARGUMENT OF GREAT BRITAIN.

Finally, a vague appeal is made to the principles of the
common and the civil law, to the practice of nations, the
laws of natural history, and the common interests of man-
kind; but one looks in vain for any vindication of the
unprecedented pretensions put forward upon any such prin-
ciples.

Yet the issues are clear :

5 Was the Government of the United States legally
justified in seizing British vessels engaged in pelagic

sealing in Behring Sea outside territorial waters'?

Did the sailors on board those vessels, who owed no
allegiance but to their Queen, violate any right of the
United States or of its citizens in such pelagic sealing?

The historical and jurisdictional aspects of the matter
have been discussed at length in the British Case and
Counter-Case. In the United States Counter-Cas6 it is
stated that the questions involved in them are of secondary
and very limited importance.

But the historical and jurisdictional considerations have
a bearing upon the case, the importance of which cannot be
thus tightly dismissed.

The United States, in extending their laws over the east-
ern part of Behring Sea, have made a distinct claim to
include that part of the Pacific within their territorial
dominions, and also to protect the seals in Behring Sea, as
if the prelagic industry were carried on within their domin-
ions. Judges in the Courts of the United States have
declared this to be the true meaning of the Statutes they
were called upon to interpret and to enforce against the
British vessels.

The United States cannot substantiate their claim in
virtue simply of their possession of the Territory of Alaska.
They must rest it on the Treaty of Cession. The effect of
that cession depends upon two points:

1. What did it jirofess to cede?

2. What had Eussia the title to cede, for Eussia could
not assign what she did not possess?

In this connection the Treaties of 1824, 1825, and 1867
are important, since their text and history show that Eus-
sia never made claim to such rights as are now alleged;
that she made a claim of a different nature, and made that
claim only immediately to abandon it; and, lastly, that
Eussia did not even pretend to cede the rights now asserted.

Yet the Sections of the Ee vised Statutes relating to
Alaska under which the British vessels have been con-
demned, as interpreted by the Courts of the United States,
are based on dominion and on the doctrine of ware clausiim.
And by this interf)retation, not the prohibition against
sealing alone, but all " the laws of the United States

6 relating to customs, commerce, and navigation," have
been extended over the whole of the eastern part of

Behring Sea. If this interpretation were sound and war-

Tnitcd states ranted by the Treaty of Cession, the answer is complete;

vo^'if pr''92'' ei the law of nations does not recognize such an extension of

m- ' municipal law against foreigners; and the law, in so far as

it applies to foreigners, is ultra vires. But if this iuterpre-

ARGUMENT OF GREAT BRITAIN.

tation is not correct, tlien these Sections do not extend
beyond tbe territories, islands, and territorial waters of
Alaska Territory, and the decisions of the Courts have no
warrant even in the legislation of the United States.

Considerations such as these, sapping as they do the very
foundations of the claim of the United States, cannot be
treated as other than most material to the due determina-
tion of the questions submitted to the Arbitrators.

Nor is it of less importance to recapitulate with some
insistence and circumstance of argument the fundamental
principles on which the freedom of the sea reposes.

Can it be deiued that the claim of the United States, with
or without its pretensions of descent from Eussia, finds no
warrant in these fundamental principles'? If denial were
possible, it would have been unnecessary to dive into the
Statutes of other nations for analogy. Yet never was the
argument from analogy put to such strange uses. Princi-
ples of construction have been applied to foreign laws which
the Judges, in whose hands the construction of those laws
rests, would never recognize. And on foundations so
loosely put together conclusions have been based at vari-
ance with the fundamental principles of legislatiou and
interi^retation.

Shorn of all support of international law, and of justifi-
cation from the usage of nations, the claim of the United
States to possess and to protect the seals in the high sea
takes, at last, its final form — as claim of j^roperty.

Yet not wholly is it rested on property. The greatest
jurists of the world have dealt with "property" and "pos-
session " in such fashion, have defined their meanings with
such precision of thought and language, that it is not sur-
prising the United States should shrink from the hopeless
task of attempting to formulate a new species of ownership.
And so, at last, driven from all the standpoints of admitted
and long-known rights, the argument of the United
7 States takes refuge in a claim for protection where

there is no property, under circumstances so novel
that its supporters confess with candour that it can be
rested on no precedent, but that a precedent ought to be
established by international law to meet the exigencies of
the case.

To all this shadowy claim the Government of the Queen
submit but one answer — the Law.

It is sought to support this strange right by reason of
the industry of the United States citizens, and the benefit
which that industry is said to confer on the markets of the
world. But the rights of industry and the benefits of
others interested therein are already cared for by the law.

It is said that the United States has a right to the seals
as to the products of the soil. Tlie law already sufficiently
protects the products of the soil.

Animals are not products of the soil. The birds build-
ing in the trees, the rabbits burrowing in the ground, are
but wild animals to the law. Yet in respect of them the
law has already defined the extent of the rights of prop-
erty, and has protected these rights.

10 ARGUMENT OF GHEAT BftlTAm.

Again, the claim is to the increase of the seal as to tlie
shee])-faimer is given the increase of his flock. The law
deals with the increase of the flock; and the increase of
wild animals it deals with too.

"An industry the j^roperty of the nation on whose shores
it is carried on" — such is the form in which the United
States claim is presented by one of its ablest advocates, a
form which evades the most elementary questions as to the
foundation, the nature, and the extent of the rights so
claimed.

The whole case, and every part of it, and every form in
whi<'h ingenuity can frame it, are covered by the law. And
to this law Her Majesty's Government most confidently
appeal.

And there is another law to which that Government
appeal with equal confidence — the law on which depends
the freedom of the sea.

What is the freedom of the sea?

The right to come and go upon the high sea without let
or hindrance, and to take therefrom at will and pleasure the
produce of the sea. It is the right whi<;h the United States
and Great Britain endeavoured, and endeavoured
8* successfully, to maintain against the claim of Russia
seventy years ago. it is the right in defence of
which, against excessive claims of other nations, the argu-
ments of the United States have in former times held so
prominent a place.

And what is this claim to protect the seal in the high
sea? It is, as of right and for all time, to let and hinder
the vessels of all nations in their pursuit of seals u])on the
high sea; to forbid them entrance to those vast seas which
the United States have included in the denomination of
the " waters of Alaska;" to take from these vessels the
seals they have lawfully obtained ; and to search, seize, and
condemn the vessels and the crews, or with show of force
to send them back to the ports from which they set out.

And so, according to the contention of the United States,
" protection of an industry " at sea justifies those acts of
high authority which by the law of nations are allowed
only to belligerents, or against pirates with whom no nation
is at peace.

From giving its high sanction to these views this Tribu-
nal may well shrink ; and it is with no mere idle use of
high-sounding phrase that Great Britain once more appears
to vindicate the freedom of the sea.

This, then. Her Majesty's Government submit is the issue
raised by the dispute, an issue which they leave with con-
fidence in the bands of this Tribunal. Were the British
vessels right or wrong? If the United States Congress
could by the law of nations legitimately pass this Statute
to bind foreign vessels upon the high seas, they were wrong
in refusing to obey; but if Congress could not legitimately
bind foreign vessels, their seizure was unjustifiable, and
their owners must be compensated.

But there is another aspect of the question to which (the
legal questions having been decided in favour of Great

ARGUMENT OF GREAT BRITAIN. 11

Britain) the attention of tlie Arbitrators must be called
before tlieir labours are com])lete: the question whether
any, and, if so, what Sealing Regulations it may be neces-
sary to formulate.

The position which Her Majesty's Government have con-
sistently maintained on the subject of these Regulations is
clearly set forth in the Introduction to the Second Part of
the Counter-Case presented on its behalf. It sutifices

9 now, in the briefest manner possible, to insist on that
position.

So long as the claim of the United States to impose
Regulations on pelagic scaling is based on the assertion of
a legal right, that claim is strenuously opposed, and the
right as strenuously denied.

But when the question is put on the lower and i^ractical
plane of connnon benefit to all the nations interested, on
the recognition of the right of the pelagic sealer as well as of
that of the island sealer, then the British Government will
cordially co-operate in giving effect to snch measures as
may be found necessary for the preservation of the fur-
seals.

On this basis the question assumes the negation of the
right which the United States now claim, and admits the
necessity for the concurrence of Great Britain. Her Maj-
esty is, and always has been, ready to concur in Regula-
tions just and equitable in the interests of all concerned;
but she has been unable to join in the consideration of
Regulations based on the principle that the United States
have a legal right to the jjrotection which those Regula-
tions are intended to give.

Should any regulations be the outcome of this Arbitra-
tion, it is contideutly expected by Her Majesty's Govern-
ment that they will be such as not to protect oidy the United
States in the manner which their present contention urges,
but to protect an industry in which all the nations of the .
world have an interest.

It were useless to make Regulations which should bind
only citizens and subjects of the United States and Great
Britain. As in the case of the Jan Mayen fisheries, so in
the case of the Pacific fisheries, the subjects of all the
nations who now participate in them, or who may be rea-
sonably expected to do so, ought, to be equally bound.

Her Majesty's Government cannot leave this subject with-
out expressing regret and disappointment at the position
apparently assumed by the United States on the question
of Regulations. It is discussed by the United States as if
the exclusion of all the other nations of the world from a
share in the fur-seal industry in the western seas were to
be the aim and purpose of such Regulations. Her

10 Majesty's Government absolutely dissent from this
view, and feel confident this Tribunal will not

approve it. If the existing rights of nations are to be
abridged, they can justly be abridged only in the interests
of all, and the United States of America must be prepared
to do their part by the adoption of Regulations and im-
proved methods on the islands to preserve the fur-seals.

12 ARGUMENT OF GREAT BRITAIN.

Finally, the broad contentions of the respective Govern-
ments, stated in popnlar langnage, are these:

1. The United States claim dominion, and the right to
legislate against foreigners, in two-thirds of that part of
the waters of the Pacilic Ocean called Behring Sea.

2. They claim a right of property in wild animals which
resort for a certain season of tbe year only to their terri-
tory, derive no sustenance therefrom, and, during the
greater i)artof the year, live many hundreds of miles away
from that territory in the ocean.

3. They claim the right to j^rotect that alleged right of
property by search, seizure, and condemnation of the ships
of other nations.

4. Failing the establishment of the right of property,
they claim a right to protect the fur-seals in the ocean, and
to apply, in assertion of that right, the like sanctions of
search, seizure, and condemnation.

5. And lastly, failing these assertions of right, they claim
that Rules shall be framed in the interests of the United
States alone which shall exclude other nations from the
pursuit of fur-seals.

On the other hand, Her Majesty's Government claim —

1. Freedom of the seas for the benefit of all the world.

2. That rights of proi)erty, and rights in relation to proji-
erty, be confined within the limits consecrated by practice,
and founded on general expediency in the interests of
mankind.

3. That, apart from agreement, no nation has the right to
seize the vessels of another nation on the high seas in time
of peace for offences against property excepting ]>iracy.

4. That any Regulations to be established should have
just and equitable regard to all interests affected.

In support of the views of Her Majesty's Govern-
11 ment thus generally stated, the following Argument
is respectfully submitted for the consideration of this
Tribunal of Arbitration.

STATEMENT OF QUESTIONS RAISED IN ARTICLE VI OF
THE ARBITRATION TREATY.

Article VI. (1.) What exclusive jurisdiction in Behring
Sea, and what exclusive rights in the sea fisheries therein,
did Russia assert and exercise prior and up to 1867?

(2.) How far did Great Britain recognize and concede
" these claims of jurisdiction as to the seal fisheries"'?

(3.) Was Behring Sea included in "Pacific Ocean" in
the Treaty of 1825?

What rights, if any, in Behring Sea did Russia hold and
exclusively exercise after this Treaty?

(4.) Did not all Russia's right: {a) to jurisdiction, (h) as
to the seal fisheries in Behring Sea, east of the water
boundary, pass to the United States unimpaired under the
Treaty of 1867?

(5.) Has the United States any, and, if so, what, right
(a) of protection (h) or property in the seals fre(iuenting
the islands of the United States in Behring Sea when they
are found outside the ordinary 3-mile limit?

ARGUMENT OF GREAT BRITAIN. 13

The points raised by these questions are met by Great
Britain in this written argument by establishing the fol-
lowing principal propositions:

PROPOSITIONS MAINTAINED IN PART I OF THE ARGUMENT
OF GREAT BRITAIN.

1. That the size and geographical conditions of Behring
Sea are such that no nation has a right to close the sea
against the navigation of the ships of other nations; nor
to claim or assert territorial dominion over the sea; nor to
claim or assert the right of jurisdiction, nor to exercise
jurisdiction, over the sea beyond the 3 miles of territorial
waters, as recognized by international law.

^. That Behring Sea is the high sea, and forms part of
the Pacific Ocean ; and that no nation has a right to claim,
assert, or exercise jurisdiction on the sea in any other
cases than those recognized by international law.

3. That, in 1821 only, and at no other time, Eussia
12 asserted a jurisdiction over so much of Behring Sea
as was included in a belt of 100 Italian miles from
the shores of her territories :

That she never exercised such jurisdiction, but, on the
protest of the United States and Great Britain, immediately
withdrew her assertion of it, and limited her claim to the
3 miles of territorial waters recognized by international
law:

That Russia did not at any time assert or exercise jurisdic-
tion over the whole of Behring Sea, nor claim to close that
sea, nor did she at any time assert or exercise the rights of
territorial dominion over any part of such sea.

4. That the withdrawal of the claim to 100-mile juris-
diction was confirmed by both the Treaties which Russia
entered into (1) with the United States in 1824, and (2) with
Great Britain in 1825.

5. That the United States acquired from Russia, under
the Treaty of 1867, no rights beyond the sovereignty of
the ceded territories (which did not include any part of
Behring Sea) and the right of jurisdiction over the 3 miles
of territorial waters as recognized by international law;
and that the United States have no right, in virtue of their
possessions on the shores and the islands of Behring Sea,
to any dominion over that sea, or to any jurisdiction in its
waters, other than that recognized by international law in
the 3 miles of territorial waters.

6. That it was beyond the right of the United States to
make laws under which British vessels could be con-
demned by the United States Courts, or under which the
United States cruizers could interfere with British vessels
engaged in i)elagic sealing in Behring Sea, and that such
laws were legitimately disregarded by British subjects.

VARYING CHARACTER OF UNITED STATES CONTENTION.

Ill view of the great complexity and varying nature of
the United States contention, the following brief survey
of the manner in which their case has been presented isi
Plibmitted.

14 ARGUMENT 01' GREAT BRITAIN.

This is the more essential, as the United States diplo-
matic correspondence, and other documents in whicli the
United States claim is advocated, do not keep the points
clear, but move imperceptibly from one standpoint to
another.

13 The points to which the argument of the United
States is directed are these:

1. That Kussia claimed and exercised the jurisdiction in
Behring" Sea now asserted, and ceded it to the United States,
and that, therefore, the United States are entitled to exer-
cise it in virtue of the Treaty of Cession of 1867.

2. That the United States have the like jurisdiction over
Behring Sea in virtue of their own possessions, and in their
own right of dominion.

3. That the United States have jurisdiction over the east-
ern portion of Behring Sea as part of their territorial waters.

4. That the United States have jurisdiction for the pro-
tection of the fur-seal in virtue of an alleged right of nations
to exercise similar jurisdiction on the high sea, apart from
any dominion or special jurisdiction over Behring Sea.

5. That the United States have a property in the seals
on account of their breeding and temporary residence on
the PribyloiJ's, and a right to follow such seals and protect
them in the high sea, apart from any dominion or sx)ecial
jurisdiction.

6. That the United States have such right of protection
apart from any right of property.

Of these six claims, it is submitted that the last three,
so far as they assert a jurisdiction extending beyond Beh-
ring Sea, or th(^ eastern i)ortion thereof, are not included
in tlie reference to this Tribunal made by the Treaty of
Arbitration.

DIVISION OF ARGUMENT.

The following Argument is thus divided :
In Part I the grounds are set forth on which Great Britain
claims that all the questions arising under the first four
questions propounded in the Vlth Article of the Treaty of
Arbitration should be decided in favour of Great Britain.

In Part II the United States claim of right of protection
or projjcrty in fur-seals is considered, and the grounds are
set forth on which Great Britain claims that the fifth ques-
tion pro]K)unded should be decided in her favour.

14 In Part III the question of regulations is dis-
cussed; and

In Part IV the claims of Great Britain and of the United
States respectively for damages are considered.

ARGUMENT -PART I.

Argument addressed to the first four Questions for Decision
under Article VI of the Treaty of Arbitration.

NATURE, EXTENT, AND GEOaHAPHICAL POSITION OF

BEHRINa SEA.

Beliriiiff Sea is the northernmost part of the Pacific united states
Ocean. ^'^^'''P-''-

It washes the north-western parts of the coasts of Amer-
ica and the north-eastern part of Asia.

The Pacific and Arctic Oceans are connected by Behring
Strait, 48 miles in width.*

From east to west, Behring Sea has an extreme width of
1,200 miles; from north to south, it extends over about 14
deji'rees of latitude, or more than 800 miles.

The area of Behring Sea is stated in the United States ibid.,p.ii.
Case to be 873,128 square statute miles.

The Aleutian and Commander Islands are recognized as
marking the southern hmits of Behring Sea. Between the
Aleutian and Commander Islands, and between the latter
and the Kamtschatkan coast, are stretches of open sea 190
-iind 95 miles wide respectively. The western part of the
Aleutian chain forms a widely scattered archipelago, with
tliree open sea stretches of 50 miles or more in width each,
and many navigable channels and passes through all parts
of this group. So large are the spaces of sea as compared
with the lengths of the islands, that from the western end
of the Fox Islands to the coast of Asia, a distance of some
1,000 geographical miles, there are about 660 miles of sea,
being nearly two-thirds of the entire distance.

The free navigation of the Pacific northward to the Arc-
tic Ocean is, in fact, in no sense interfered with by the
intervening islands, but is, and always has been, exercised
by all nations through and over all iJarts of Behring Sea
and through Behring Strait.

15 NO NATION CAN CLOSE BEnRING- SEA J NOR CLAIM

DOMINION OVER IT.

The geographical conditions of Behring Sea, its enor-
mous size, the wide open navigable jjasses through and to
the west of the Aleutians, together with the great width
of the northern opening through Behring Strait, renders

* Geographical miles iu all cases, unless otherwise stated.

15

16 ARGUMENT OF GREAT BRITAIN.

it impossible for any nation practically to close the sea
against the ships of other nations.

It is not a land-locked sea, or a sea so surrounded by land
as to entitle nations to whom the adjacent territories belong
to assert a territorial dominion over it, but is in every sense
of the term the high sea.

PRIBYLOFF ISLANDS.

The Pribyloff Islands, upon which are the principal
breeding resorts or "rookeries" of the fur-seal in the east-
ern part of the North Pacific, are situated in Behring Sea,
and consist of four small islands. Two of them only — St.
Paul and St. George — are at present resorted to by the
seals for breeding purposes. These two islands are 40
miles apart.

The Pribyloff group is situated 180 miles to the north, of
Unalaska Island in the Aleutians, and nearly 300 miles to
the west of the mainland of Alaska, these being the nearest
island and mainland.

WATERS BETWEEN THESE ISLANDS AND THE MAINLAND
CANNOT BE UNITED STATES TERRITORY, NOR WITHIN
THEIR TERRITORIAL WATERS.

The position of the Pribyloff group of islands in the open
sea is therefore such that no claim could legitimately be
made by the nation owning Alaska or the Aleutians to
include the intervening sea within its territory, and no
justification can be found for any attempt to extend the
territorial waters washing their coasts, respectively, beyond
the 3 miles recognized by international law, or to treat
them as embayed waters.

In the absence of Treaty, or of some claim based on
acquiescence, the right of exclusive fishing on the high sea
conceded to any country by internatioual law is limited to
the 3 miles of territorial waters.

BRITISH VESSELS WRONGFULLY SEIZED.

On general principles of international law, therefore, the
places where the British vessels were seized by the United
States were not within the territorial waters of the Uuited
States, but on the high sea.

ALLEGED CLAIMS OF RUSSIA.

It is contended by the United States that Russia asserted
and exercised jurisdiction over Behring Sea not con-
16 sistent with the foregoing principles, and that, either
by express consent of other nations or by acquies-
cence, Russia asserted this jurisdiction effectively.
The important periods for consideration are as follows:
Prior to 1799,
1799 to 1821,
1821 to 1825,
1825 to 18G7,
1867 and subsequently.

ARGUMENT OF GREAT BRITAIN. 17

Frior to 1799,
BEHRING SEA OPEN TO ALL NATIONS.

Behring Sea was one of the vast partially explored seas
open to the world.

It bad begnn to be navigated by all nations, and the f^'"^^ *^*^®'
right to a highway through the sea at all its openings had
been exercised and established; the rights of fishing and
trading were also exercised.

Its eastern shores and islands, though not fully explored
or known, were being explored by Great Britain, the United
States, France, and Eussia.

Russian TJTcase of 1799.

CHARACTER OF THE FIRST UKASE.

This Ukase deals with the coast of America and the British coun-
islands, giving commercial privileges to the Eijssian-Ameri- ^^^■'^'■^'^^ p- ^^•
can Company.

The territory was claimed by right of discovery; a right
which neither Great Britain nor the United States admitted
in negotiations.

The Ukase is purely territorial; it does not claim juris-
diction over the sea, or profess to al3^ect foreigners. The
territories were, and were treated as, colonies separated
from the Russian Empire by the high seas. The Charter to ^ united states
the Company of 1844: expressly uses the term "colonies" voM.p.^io!'^ *^'
for the territories in America; but for Okhotsk on the
Siberian mainland the term used is " province."

No Russian legislation for Behring Sea exists; it is not
alleged, nor could it be proved, that foreigners in Behring
Sea were affected by Russian Laws in general, or by the
Ukase in particular.

Russia did not claim, nor does the Ukase pretend, to
make Behring Sea mare clausum.

The Ukase of 1799 therefore leaves the question of pfj'^jf,^. ^*'''
17 dominion or jurisdiction over Behring Sea untouched.
The highway to the Arctic Ocean was recognized, and
was afterwards used; also fishing rights as on the high sea.

1799 to 1821.

RIGHTS OF THE HIGH SEA CONTINUED TO BE EXERCISED.

Rights of free navigation continued to be exercised unre-
strained by Russia.

Russia continued only to enforce her territorial Ukase.

Behring Sea was soon frequented by foreigners compet- p.37!*'^'* ^*^®'
ing with the Company in navigation, exploration, and trad©,
B s, PT X 2

18 ARGUMENT OF GREAT BRITAIN.

Russian UJcase of 1821.

CHARACTER OF THE SECOND UKASE.

fV™^! itprrtT I^iissia did not shut Bebriiig Sea, nor claim it, or any part
p. 1. ibi(i., Tart of it, as territory; she only claimed by this Ukase exclu-
II, No. 1. giyg sovereignty on territory in America from Behring

Straits as far south as 51° IST., together with exclusive juris-
diction 100 miles from the coast,
unitwi states The claim was of territory on land, and jurisdiction to
vof.*i, pAe!" "'restrain trade along all the coasts of tlmt territory.

The United States claim to territory and dominion in
the Behring Sea east of the line of demarcation depends
entirely on the cession of 1867 by Russia.

If Russia had not territory and dominion in Behring Sea,
she could not cede it to the United States.

1821 to 1825.

NOTIFICATION OF UKASE.

This Ukase of 1821 was notified to Great Britain and the
United States.
TJnitert States The Rulcs annexed to it, and the Charter issued at the
vou.^^ie"^!^' same time, applied to Russian subjects and to foreigners.

PROTESTS OF GREAT BRITAIN AND UNITED STATES.

British Case A protcst was at once entered by both Governments, the
^ppen ix.vo.ii gj.j^jgi^ protest bciiig directed both to the claim of exclu-
Appendhc voi^ii' ^^^^ sovcreiguty over the territories, and of exclusive rights
Part II, No. 2.' ' withiu the maritime limits specified. The United States
protest was directed in the same way to every i:>art of the
claim: to the claim to the territories south and east of
Behring Straits; to the extension of the southern limit
from 55° north to 51° north; and to the extension of mari-
time jurisdiction.
British^ as e, Both j)rotests wcrc at first met by explanations of

Six, 'vol', ii, ^Partis the reasons for the Ukase: by statements that the
I, pp. 3 and 24. Powcrs Were expressly to understand that the en-

trance to and navigation of Behring Sea had not been
affected except within the 100 miles limit, but that this
limit was insisted on for the protection of Russian com-
merce.
^itish Case. After these protests, Russia issued instructions to her
cruizers practically suspending the efi'ect of the Ukase in
so far as the claim to maritime jurisdiction was concerned.

WITHDRAWAL BY RUSSIA OF HER CLAIM TO MARITIME
JURISDICTION.

This withdrawal was notified to Great Britain, and a sug-
gestion made that the delimitation of boundaries should be
matter of negotiation.

It was notified also to the United States, and coramuni'
cated by botU Powers to tlieU' respective Represeutativea.

p. 44.

ARGUMENT OF GREAT BRITAIN. 19

The United States also informed the British Minister to /Mj^l/Veton^^J
the United States of the same fact, and this Avithdrawal Adams.)
was made the basis of communications to the KussiauKep-
resentatives during- the negotiations, and was never denied.
It was communicated with the consent of the liussian Am- British Case,
bassador in somewhat guarded language to British ship- p.^^^e';"'^'^'^'*^*"'
owners,

Eussia never withdrew or qualified the abandonment of
the lOO-mile jurisdiction claim, and on this basis the nego-
tiation of the Treaties proceeded.

The abandoumeut, demanded both by Great Britain and
the United States, was not of any specific part of her claim
to jurisdiction, nor were certain coasts specified along which
this jurisdiction should not be exercised, but she abandoned
the ichole claim to jurisdiction along the tchole of the coasts
of the territories she claimed, and never again revived or
attempted to exercise it on any part of the coasts.

The action of the " Apollon" in the case of the "Pearl" p.^ysf'"^ ^^'^•
was disavowed by the liussian Government.

The United States Treaty of 1824.

The United States having objected to the claim of terri-
tory by Eussia south and east of Behring Straits, as far
south as 51°, and also to the claim of maritime jurisdiction
along the shores of that territory; further, Eussia having
agreed to withdraw that claim of maritime jurisdiction; the
Treaty was entered into to carry out the arrange-
19 meuts which had been come to. It is therefore obvi-
ous that the words of Article I, " any part of the
Pacific Ocean," include Behring Sea.

The fact that the United States also contested the exten-
sion of the southern boundary does not affect this position.

There was nothing unusual in using the term "Pacific" British case,
to include Behring Sea; it was commonly so used in de- p"^*" ^^' ^^' '^*
spatcbes, by writers, and by geographers at that time, and
is now; it is used in this sense by all the jurists who have
<lealt with the Treaties, and by Greenhow, a prominent
official of the United States Government, in official pub-
lications.

It was necessarily used in the Treaty in this sense, because
the abandoned claim to restrict freedom of navigation and
fishing applied to several parts of the Pacific Ocean, viz.,
Behring Sea, the Sea of Okhotsk, and that jjart of the Pacific
which lies south and east of the Alaskan territory.

The argument that it api)lied only to the Pacific Ocean
south and east of the Alaskan territory, and not to Beh-
ring Sea, is disi)roved by the fact that the 100 miles claim
of jurisdiction extended both to the north and to the south
of the Aleutians. Its withdrawal, therefore, could not have
been confined to the south, to the exclusion of the north,
uidess it had been expressly so stated.

Other provisions of the Treaty (e. g., Article II, forbid-
ding resort to any point where there was a Eussian estab-
lishment) manifestly applied to the whole territory claimed
by the Ukase,

20 ARGUMENT OF GREAT BRITAIN.

The British Treaty of 1825.

It is submitted that tlie Treaties of 1824 and 1825 declared
and recognized tlie rights of the United States and Great
Britain to navigate and iish in all parts of the non-terri-
torial waters over which the Ukase puri)orted to extend:
that the body of water known as Behring Sea was included
in the phrase "Pacific Ocean" as used in the Treaty of
1825; and that the limited meanings placed on the term
" north-west coast " or "north-west coast of America " in
the United States Case are incorrect.

Throughout the negotiations which preceded the Trea-
ties, the words "north-west coast" were used to include
not less than the whole of the North American coast
20 from Behring Straits to 51° north. If it had been
intended to limit this general term to a certain por-
tion of the coast, expHcit language would have been used.

One contention of the United States, in eifect, limits tlie
"north-west coast" to the lisiere defined in the Ilird
Article of the Treaty of 1825.

While on the one hand Article VI of the Treaty was
confined to the lisiere i7idiquee, on the other hand, the recip-
rocal liberty of access and commerce with each other's
territories secured by Article VII was clearly not con-
fined to the lisiere; the main proj)osals made with regard
to this related to its possession by Russia. The other pro-
posals, including that as to reciprocal liberty of access,
related to the whole of the north-west coast. In the words
of Mr. Canning, writing in 1824, the object was to secure
reciprocal access to the territories of the respective Powers.
British Conn- This was effected by adopting, as Article VII of the
tcr-case, p. 4'j. British Treaty, Article IV of the United States Treaty,
which gave to Russia and the United States a reciprocal
right of frequenting for ten years the interior seas on the
coast mentioned in Article III of that Treaty. This coast
was clearly the whole of the north-west coast from Behr-
ring Strait southwards to about 54^ 40', Russia agreeing
not to form any establishment south of 54° 40', and the
United States agreeing not to form any to the north of that
latitude.

It is submitted, therefore, that Behring Sea is clearly
included in the term " Pacific Ocean " in the Treaty of
1825.

ANALYSIS OF THE TREATY.

Article III of the Treaty of 1825 traces the line of
demar(;ation between the two Powers on the coast of the
continent and the islands of North-western America.

Article IV defines the Eastern boundary of the lisiere
which was to belong to Russia.

Article V emphasizes the possession of the lisiere by
Russia by reiterating that the reciprocal prohibition against
forming establishments in the i)ossessions of the two parties
respectively applied in the case of the Russian possessions
both to the coast aud to the lisiorc comprised within those
possessiQus,

ARGUMENT OF GREAT BRITAIN. 21

Article YI dealt only with the lisiere, granting to Great
Britain a perpetual right of navigation of all the rivers
flowing to the Pacilic across the line of demarcation of the

Z/skVe indicated in Article III.
21 Article VII, on the other hand, dealt with the coast

of the continent, mentioned in Article III : it gave
to the two parties a reciprocal right of visit to all the inland
waters, harbours, «S:c., on this coast: it applied, therefore,
to the coast of the whole of the liussian possessions, as
well as to the whole of the coast of the British possessions.

If the right of access under Article VII were limited to
the coast of the lisiere, the reciprocal character of the
Article would be destroyed.

The text of the Treaty clearly shows, therefore, that the
expression " north-west coast" included the whole of the
coast on the north-west of the American continent; and
that the term "Pacific Ocean" included all the waters
washing the north-west coast, including Behring Sea.

This argument is supi:)orted bv the fact that in the Trea- i^n'tish cmm
ties of 1811, 1843, and 1859, concluded by Kussia with Great ^'''■^''^^' P' ^i-
Britain and other Powers (and which are examined in the
British Counter-Case, pp. 51-52), the term "North-west
coast of America" is used in a manner showing conclusively
that it included the coast of Behring Sea.

The Treaty of 1859 did not expire till 1869, i. e., after the
cession of Alaska to the United States.

The notice issued by the United States in 1845 at the
request of Russia warns the United States citizens against
infringing the Treaty of 1824 by "resorting to any point
upon the Russian- American coast where there is a liussian
establishment." This notice clearly applied to all the coast
of Behring- Sea.

The Cession of Alaska to United States in 1867.

The whole of the Russian territories on the north-west
coast of America, together with the islands, were ceded by
Russia to the United States Treaty of 1867.

UNITED STATES STATUTES, &C., DEALING WITH ALASKA.

It is submitted that the United States official Acts and
Statutes dealing with Alaska Territory next mentioned^
whatevertheir construction, have no forceor validity against
foreigners, and therefore afford no support to the position
assumed by the United States. They are as follows:

The Act of July 1868, section 1, extending the laws Tinited states
22 of the United States relating to customs, commerce, ^''''*'"^' ^' ^^'

and navigation over all the mainland, islands, and
waters of the territory ceded to the United States by Russia.

Section 1956, Revised Statutes, Chapter 3, title 23, pro- n,;,!., Appen-
hibiting the killing of fur-seals and other animals within ^ix, vol. i.p-se.
the limit of Alaska Territory, or in the waters thereof.

"An Act to provide for the protection of the Salmon iwd., p. 99.
Fisheries of Alaska, 1889," section 3, declaring that Sec-
tion 1956, above, shall "include and apply to all the domin-

22 ARGUMENT OF GREAT BRITAIN.

ion of the United States in the waters of the Behrinfj Sea;"
and that the Proclamation of the President, warning all
persons from entering- such wateis for the pnrijose of violat-
ing the Statutes, shall be published at each United States
port of entry "on the Pacific coast."
Ibid., p. 112. A Proclamation of the United States President in 1889
(and also in 1890, 1891, and 1892), warning all persons
entering the waters of Behring Sea, within the dominion
of the United States, for the purpose of violating Section
1956, and authorizing seizure of vessels.

It is submitted that the application of these Statutes and
official Acts to foreigners is not warranted by the Treaty
of Cession of 1807, and cannot be supported by any prin-
ciple of law.

TREATY OF CESSION, 1867.

United States The Treaty of Cession contained the following provisions :

Case, Appt-iidix, '^ '•

vol. i, p. 40.

Article I.

[United States translation and construction of the Treaty incorrect.]

"Sa Majesty TEmpereur de Toutes les Rnssics s'eugage . , . .
h c(Sder anx Etat8-Unis .... tout le territoire avec droit de
8oiiverainet6 actuellement po8S^d6 par Sa Majesty sur Ic Continent
d'Am<5riqne ainsi que les lies contiguos, le dit territoire 6taut compris
dans les limites gdographiques ci-dessons indiqudes . . . ."

A line running through Behring Straits, and thence to the south-
west to a point l)etween Attn and Commander Islands, is drawn as "la
limite occidentale des territoires cddds, de manit-re k enclaver dans le
territoire cM6, toutes les lies Aldoutes situdes a Test de ce mdridien."

The eastern boundary was the line of demarcation traced by the
Treaty of 1825.
23 Article II,

The right of property in all the vacant lands and public places, &c.,
is included "dans le territoire c6df."

Article VI.

" . . . . La cession du territoire avec droit de sonverainet^
faite par cette Convention, est ddclarde libre; .... et la ces-
sion ainsi faite transfere tons les droits, franchises, et privileges
appartenant actuellemeut h la Russie dans le dit territorie et ses
dependances."

United States Thcse articles are thus rendered into English in the

Case, Appendix, TT'j.icii.i.i-1

vol. i, p. 44. United States Case :

Britisli Case,
Appendix, vol. ii, , _

Part III, No. 3. ARTICLE I.

" His Majesty the Emperor of All the Russias agrees to cede to the
United States, .... all the territory and dominion now jjos-
sessed by His said Majesty on the Continent of America and in the
adjacent islands, the same being contained within the geographical
limits herein set forth . . . . "

A line running through the Behring Strait, and thence to the south-
west to a point between Attn and Commander Islands, is drawn as
" the western limit within which the territories and dominion con-
veyed are contained so as to include in the territory conveyed the
whole of the Aleutian Islands east of that meridian."

Article II.

The right of property in all the vacant lands and public places, &c.,
is included " in the cession of territory and dominion."

ARGUMENT OF GREAT BRITAIN. 23

Article VI.

". . . . The cession of territory and dominion herein mafle is
hereby declared to be free, .... and tl)e cession hereby made
conveys all the rifjhts, franchises, and privileges now belonging to
Rnssia in the said territory or domiinon, and appurtenances thereto."

In this translation the expression (twice nsed) "Le terri-
toire avec droit de sonverainete" is translated ''the terri-
tory and dominion.'''
24 The accurate translation is, "The territory, to-

gether with the right of sovereignty."

It expresses not merely a grant of territory, but also of
the sovereign rights over such territory. It says nothing
of sovereign rights or dominion over the sea. The west-
ern boundary -line is drawn not to include as territory or
dominion the waters to the east of it, but to show that the
islands and territory to the east of it pass to the United
States by the cession.

In this translation also the expression " territoires cedes"
is translated "the territories and dominion ceded."

Such translation is only permissible as a free rendering
of the French, and as incorporating the same dominion or
sovereignty which is alluded to in Article I, i. e,, sover-
eignty over the ceded territories.

In the Vlth Article the expression "le dit territoire et sea
dependances" is translated "the said territory or dominion
and appurtenances thereto."

The accnrrate translation is, "The said territory and its
dependencies."

UNITED STATES ARGUMENT AND JUDGMENTS BASED ON
SUCH ERRONEOUS TRANSLATION AND CONSTRUCTION.

On these mistranslations of the Treaty of Cession, are c^"^p '79'
founded the United States argument and certain judicial
decisions, to the effect that the waters referred to in the
Statutes were included in the dominion ceded by Russia,
and include all Behring Sea to the east of the boundary-
line.

Further, the inference drawn by the United States, and
submitted to the Arbitration Tribunal, is that up to the
time of the cession Russia continued to claim dominion over
Behring Sea, relinquishing part of it to the United States;
that this dominion so claimed forty years after the Treaties
of 1824-25 is evidence of British acquiescence in such
claim; and that therefore the United States are entitled to
have Question 3, and all other questions depending on
it, answered in favour of the United States.

A reference to the language of the Treaty of 1867 shows
that both arguments and inference are unfounded.

There is nothing to warrant any larger meaning being
given to " waters thereof" than the usual meaning, i. e., 3
miles of territorial waters.

Drawing an imaginary boundary-line through the high
sea for the purpose of delimitation of territories on either
side of it does not warrant the inference that dominion

24 ARGUMENT OF GREAT BRITAIN.

over the liigli sea on either side is claimed. Such

25 definition of a boundary lino is the only one possible
where the cession is of many islands and rocks, many

of which are not named or surveyed, and some of which
are even perhaps unknown.

The cession was of all territories within the boundary-
line, and the Treaty so expressed it.

An example of the use of water boundary-lines for this
purpose is furnished by the United Kino-dom Statute defin-
ing the limits of New Zealand, which plainly refers only to
CaYe^*''223^^*^*'^ territories and islands within those limits. Yet the United
ase.p. . states, for consistency, assert, contrary to the fact, that
Great Britain thereby claims as within the Colony all the
high sea within those limits.

The United States contention has been shown to depend
on an erroneous construction of the Treaty of 1867.

The decisions of the United States Courts condemning
British vessels for a supposed breach of the United States
sealing laws adopt a similar construction, and are therefore
not to be supported.

Three examijles of such decisions, with the judgments,
are set out in the United States Appendix :

Case of the " Thornton,''^ 1886.

DECISIONS OF UNITED STATES COURTS CITED IN UNITED

STATES CASE.

*

caY"' Appendix! I^awsou, J., held that "all the waters within the bound-
voi. i. p. 114. ' ary set forth in this treaty .... are to be considered
as comprised within the waters of Alaska."

The " Thornton," a British vessel, was seized when fish-
ing 70 miles south-east of St. George Island, the nearest
land, and was condemned.

Case of the '■'■Dolphin'''' and other ships, 1887.

Ibid., p. 115. Dawson, J., held that Russia had claimed jurisdiction
over Behring Sea, and that Great Britain had acquiesced
in that claim; that the United States had purchased the
sea east of the boundary-line, and that the action of the
United States was " a legitimate exercise of the powers of
sovereignty under the law of nations, with which no nation
can lawfully interfere."

The " Dolphin '- and other ships, British vessels, were
seized when fishing beyond the 3-mile limit in Behring Sea,
and were condemned.

26 Case of the ''James G. Swan,^' 1892.

Hnited States Haudford, J., held tluit liussia had asserted authority
vou, ^^21!**^'^' over Behring Sea by assuming to transfer to the United
States certain territory and dominion with definite bound-
aries, including a large part of Behring Sea, and that the
United States, hy the ratification of the Treaty of Cession,
acquired a claim of right to exercise authority and sover-
eignty therein.

ARGUMENT OF GREAT BRITAIN. 25

Tlie schooner was condeninod.

The decisions of the United States Oonrts in the con- .
denmation of other vessels proceed on the same i^rincipk^s.

P^ither they were wrong" in point of constrnction, or the
Statutes upon which they were founded were ultra vires as
against foreigners. In neither case do they furnish any
justification for the action of the United States.

CONCLUSIONS ESTABLISHED BY FOREGOING ARGUMENT.

The foregoing facts and arguments, it is submitted, cou-
chisively establish that the following answers should be
given to the first four questions in Article VI of the Treaty
of Arbitration.

To Question 1. — That Eussia exercised no exclusive juris-
diction in Behring Sea prior to 1867; that, in 1821 only,
Kussia asserted exclusive jurisdiction over a partof Behring
Sea ah)ng its coasts, but that she withdrew the assertion,
and never afterwards asserted or exercised such jurisdic-
';ion.

That Eussia exercised no exclusive rights in the seal fish-
eries in Behring Sea prior to 18G7; that in 1821 only, Eus-
sia claimed exclusive rights, as included in her claim of
jurisdiction extending to 100 miles from the coast, but that
she withdrew the assertion, and never afterwards asserted
yv exercised such rights.

The only exclusive right which Eussia subsequently exer-
cised was the right incidental to her territorial ownership.

To Question 2. — That Great Britain neither recogni/.ed
nor conceded any claims of Eussia of jurisdiction as to the
seal fisheries, %. e., eithei' (a) of exclusive jurisdiction in
Behring Sea, or (ft) exclusive rights in the fisheries in Beh-
ring Sea, save as already mentioned.
27 To Question 3. — That Behring Sea was included ia

"Pacific Ocean" in the Treaty of 1825.

That Eussia neither held nor exclusively exercised any
rights in Behring Sea after the Treaty of 1825, save only
such territorial rights as were allowed to her by interna-
tional law.

To Question 4. — That no rights as to jurisdiction or as to
the seal fisheries in Behring Sea east of the water boundary,
in the Treaty between the United States and Eussia of the
30th March, 1867, passed to the United States under that
Treaty, except such as were incidental to the islands and
other territory ceded.

PART 11.

Argument addressed to the 5th Question for Decision under
Article VI of the Treaty of Arbitration, viz.: Has the
United States any Bight of Protection or Property in the
Fur-seals f

PROPOSITIONS MAINTAINED IN PART II OP THE ARGU-
MENT OF GREAT BRITAIN.

1. That seals are animals /(?r«; naturw.

2. That the only property in animals /era? naturw known
to tlie law is dependent on possession.

3. That this law is common both to Great Britain and
the United States.

4. That the owner of land has the exclusive right to take
possession of them while they are on his land ; but that
right is lost when they leave his land ; and when they are
on the high sea all alike have the right to take possession
of them.

5. That while on the Pribylofi' Islands, neither the United
States nor their lessees exercise their right to take posses-
sion of the seals other than of those actually killed.

And that when the seals leave the Pribyloff" Islands and
take to the high seas, all exclusive right of the United
States is at an end, and all alike have the right to take
possession of them.

6. That no right of protection of the seals in Behring

Sea or in any other part of the Pacific exists.
28 7. That the claim of a Government to protect ani-

mals, which are not their property, on the high sea,
and thereby to interfere with the exercise of the rights of
fishing which other nations possess, cannot be supported
by any known principles of law.

8. That no analogy exists between the rights claimed by
the United States and those claimed and exercised by other
nations on the high seas, whether as regards fishing laws
or otherwise, and that the United States cannot derive any
warrant for the right claimed from such fishery or other
laws.

37

28 ARGUMENT OF GREAT BRITAIN.

British coun- The fur-seiil is not only a marine animal, but pelagic in
terCase, p. 100. jjr^^jit^ Spending most of its time at large in the open ocean.
It is migratory in its habit, and in the course of the year
traverses a great part of the North Pacific Ocean.

Tlie time in each year during whicli various classes of fur-
seals (or some considerable portion of them) remain on or
about the breeding-islands for purposes of reproduction, is
from three to live and ahalf months. But individual seals
(with the exception of the old bulls) frequent the a<ljacent
"waters for much of the time of their resort to the islands,
and many young males and virgin females luobably do not
land at all. Tlie average length of stay ashore of the seals
is about one-tliird of the year.
Ibid., p. 101. The food of the fur-seal is entirely derived from the sea.
Ibid., p. 142. The expression "home" or "sole home," applied to the
Pribyloff Islands in connection with the fur-seals found in
the eastern part of the Pacific, is inadmissible, even on the
assumj)tion that all are born there. A migratory animal
cannot be said to be "at home" only when in its breeding-
area. The home of any species is the area within which it
habitually lives. Animals may have winter as well as
summer homes.

The principal "winter home" of the fur-seals of the
eastern part of the North Pacific is the part of the ocean
lying off the coast of Ihitish Columbia; and there enor-
mous quantities of fish, which would otherwise be available
for the support of the inhabitants, are consumed by the

seals.
29 The principal "winter home" of the fur-seals of

the western part of the North Pacific, is, similarly,
in the vicinity of the Japanese coasts. But seals in
smaller numbers are to be found in all parts of the North
Pacific.
British Coun- In the summcr months, most of the seals go northwards
ter-case, p. 142. ^^^ breeding purposes. Some go to the Commander Islands,
others to the Kurile Islands and Robben Island, others to
the Pribyloff" Islands.

No special bodies of the seals can be said to resort entirely
and invariably to one or other of these groups of islands.

Intermingling occurs between the seals of the North
Pacific generally, both to the north and to the south of the
Aleutian Islands.

The allegation that the identity of individual seals can
be established when at sea cannot seriously be advanced.
ibid.,p.i36. Experiments and observation further sliow that seals
born on one of the Pribyloff Islands often land in another
year on the other island, and that the relative numbers of
seals on the two islands varies from year to year.

The tendency of the slaughter carried on upon the Priby-
loff' Islands is to drive the seals away from these islands,
and many other islands are available as breeding-places.
ibid.,p.i4i. The fact of the intermingling of the seals of both sides
of the North Pacific, likewise shows that not all the seals
found in the eastern part of that ocean can have been born
on the Pribyloff Islands.
ibid.,p.ii9. The expression "Alaskan herd" is simply a fanciful
creation, supposed to lend, by the use of the term " herd,"

ARGUMENT OF GREAT BRITAIN. 29

some colour to the United States contention of right of
property and protection.

The term "herd" is appHcable to seals (if at all) only ibi*d.,p.ii8.
when ou the islands, and then only to each rookery sepa-
rately, or to bodies of seals driven together.

No distinction, as between the fur-seals resorting to the
two sides of the ISTorth Pacific, has heretofore been known
to naturalists.

30 The alleged distinction recently advanced ou the
part of the United States is based on the classing

of skins by fur-dealers, but such classing, and the differ-
ences of price resulting, are no evidence of difference of
kind in the fur-seal or in other animals.

The criteria employed by fnr-dealers in classing the
skins, though important in the trade, are in themselves
slight and difiicult of definition. In the particular case
of fur-seal skins from the Pribyloff and Commander Islands,
experienced dealers actually observe a laige percentage
of skins from each source which would be classed, accord-
ing to the criteria they employ, as coming from the other.

Though fur-seals are to a certain degree controllable British coim-
when on land, this resnlts from their helplessness ^jjiieiei-tJi'se.p.in.
there, and such control has nothing to do with domestica-
tion.

It is im])racticable so to control the seals as to j)revent
them from going to the sea whenever they desire to do so,
and, were it i)ossible so to do, the seals would perish.

While the seals are on the Pribyloff" Islands, they are
left entirely to their natural inclinations both as to leaving
and returning to the islands.

They retain there all their characteristics of animals
ferm 7iaturc€.

They are unused to, and incapable of, any but slow and
laboured movement on land, and are therefore easily sur-
rounded and driven to the killing-grounds for slaughter.

Such control as is exercised in driving and killing, ibid., p. 112.
amounts to no more than preventing those which are
selected for killing from escaping.

The seals dread the approach of man, and endeavour to
flee from him, even when collected in great numbers ashore;
though it is probable that, when their breeding-places were
first visited, ignorance caused them to be fearless. The
result of this contact with man has therefore been the
oj)posite of that implied by domestication.

During the greater part of the year, the seals are wholly
removed from the cognizance of persons on the Pribyloif
Islands; and till very lately their winter haunts were not
even known.

All ideas attached to the word "domestic" are

31 therefore wanting in the case of fur-seals. Man does
not provide their food or in any way assist them to

obtain it; his care is at most of a negative kind, and con-
sists in the avoidance of acts which would tend to drive
them wholly away from the breeding-islands. They would
not suffer, but, on the contrary, would profit, by his depart
ture from these islands.

30 ARGUMENT OP GEEAT BRITAIN.

No scientific authority can be adduced in support of the
contention that the seal is other tlian a wikl animal; and it
is believed that no opinion from any source which is recog-
nized as entitled to weight can be quoted to such an eft'ect.

Statement of the Law of the United States and Great Britain
as to Property in Animals " Ferce Naturce.''''

The common law in force both in America and England
as to animals feroi naturm is identical.

PROPERTY IN WILD ANIMALS DEPENDENT ON POSSESSION.

This law recognizes no property in animals ferw naturw
until j)Ossession. Property, while the animals are alive,
remains only so long as this possession lasts; when this
possession is lost the property is lost. The law considers
that they are then wild animals at large, and that the rights
of capture revert to all alike.

The owner of land has what is sometimes called a quali-
fied property in wild animals on the land, but this is no
more than the exclusive right to take possession while they
are there, and when they leave the land that exclusive right
is gone.

Tlie following i)assage is taken from the treatise of the
well-known authors, Pollock and Wright, on " Possession
in the Common Law," p. 231 :

. . . Trespass or theft cannot at common law be committed of
living animals fene nattirw unless they are tame or confined. They
may be in the park or pond of a person who has the exclusive right
to take them, but they are not in his possession unless they are either
80 confined, or so powerless by reason of immaturity that they can be
taken at pleasure with certainty

EXAMPLES OF TAKING POSSESSION.

The following examples from decided cases illustrate the

nature of possession.

32 Young V. Kitchens (6 Q. B. 606), fish only partly

in a seine-net were held not to be in possession.

E. V. Eevu Pothadu (Ind. L. R. 5 Madras 390), fish in

irrigation tanks in India were held not to be in possession.

REASON FOR REGOGNI'lION OF EXCLUSIVE RIGHT.

The law does not give to the owners of land this qualified
property as to wild animals on their land by reason of any
care, or feeding, of the wild animals, or management which
falls short of reducing them into possession: it is rested
solely on the fact of the ownership of the land, and the
fact that any other person coining on the land to take the
animals is a tresj)asser.

VIOLATION OF THE RIGHT.

The exclusive right to take possession may be violated;
but as the right comes to an end when the animals leave

ARGUMENT OF GREAT BRITAIN. 31

the land in respect of which the right arises, such violation
can occur only while the animals are on the land, as by a
trespasser taking possession of them.

RAIDING.

Such a violation is committed by raiders on the islands,
and the property in the seals taken by them is in the
United States,

CASES PUT BY THE UNITED STATES.

With reference to the cases put by Mr. Phelps and Mr. united states
Blaineof killing fish by scattering poison in the sea, destroy- voLt pp^sol^m
ing them by dynamite, and placing dangerous obstructions
and derelicts in the sea to injure commerce or fisheries, it
is denied that they present any aiuilogy to the case now
under discussion, which is simply that of fishing by lawful
methods.

THIS IS A QUESTION OF RIVAL TRADING MERELY.

All persons alike possess the riglit of fishing on the high
sea, and such fishing, even though it diminish the catch of
another, is in all resj^ects analogous to the case of rival
traders.

WHICH THE LAW PERMITS.

There is no principle of law in the United States or Great
Britain which prohibits rival trading, or gives redress to
that one of the traders who may suflfer loss in his trade by
his rival's exertions.

The exercise of the right to catch the seals on the high
sea is a rival trade to the exercise of the right to catch the
seals on land. This latter right is of the same character
as the former: it only dilfers by reason of its being exclu-
sive while the seals are on the land.

NO MALICE ALLEGED.

No act of malice towards the United States or the les-
sees of the Pribylofts has been, or could be, alleged against
the fishermen of Great Britain whose vessels have been

seized. The seals are taken by them on the high sea
33 for their profit, and in the exercise of their legal

rights of fishing possessed by them in common with
all mankind.

PRINCIPLE OF LAW APPLICABLE.

The case therefore falls within the general principle, that
where loss results to one by the lawful exercise of a right
possessed by another, no reparation can be obtained by
law.

It is, therefore, submitted that any rights which the
Uuited States possess are not violi^ted by the acts of fiah-

32 ARGUMENT OF GREAT BRITAIN.

ermen of other nations on tlie high sea; and that there is
no ])iineiple of hxw known in Great Britain or the United
States by which the contention that there is such a viola-
tion can be sui)ported.

Apjjlicatlon of Principles of Property and Possession of
Wild Animals to Seals.

THE DISTINCTION IS FUNDAIVIENTAL.

The distinction between the right to take possession of
wikl animals while they are on the land, and the right of
proi>erty in such animals, is fundamental to the questions
submitted to the Arbitrators.

When the foregoing principles as to property in, and pos-
session of animals /<pr(X' natnrw, are applied to the case of
the seals, the United States contention of property in them,
while they are in the high sea, falls to the ground.

NATURE OF UNITED STATES RIGHT TO SEALS WHILE ON
PRIBYLOFFS.

The United States or their lessees have only an exclusive
right to take possession of the seals while they are on the
islands, and this exclusive right is lost when the seals go
into the high seas.

They take possession only of such seals as they kill.

THEIR MANAGEMENT IS NOT TAKING POSSESSION.

The alleged management amounts to no more than taking
precautions that the seals shall not be driven away, and
to regulate the quota of seals to be killed.

NO POSSESSION EXCEPT AT TIME OF CAPTURE, NOR ON
HIGH SEA.

The conditions of seal life during the period the seals
are in Behring Sea, their excursions to and from the islands
into the high sea, and the intermingling of seals from dif-
ferent islands, clearly show that the conditions essential
to possession never exist, except at tiie moment of capture.

While the seals are at sea, there is no power to repro-
duce at will the physical relations to the animals essential
to possession.

RIGHTS OF OTHERS TO CAPTURE.

The i)ossession of the United States is thus seen

34 not to be established while the seals are at sea, and

the rights of all to catch the animals on the high sea

remain, and were lawfully exercised by the British vessels

seized by the United States.

CLAIM OF PROPERTY UNFOUNDED,

The United States claim to property, or to any greater
right than an exclusive right to take possession while on

ARGUMENT OF GREAT BRITAIN. 33

the islands, is therefore, it is submitted, without fouudation ;
and the exclusive right to take possession does not exist
at sea.

The allegation in Mr. Phelps' letter, that the seal fishery united states
is " the property of the nation on whose shores it is carried von, p.^2^7? '^'
on," begs the question, and is not consistent with any known
principle of law.

Tlie British contention is that this absence of precedent
is fatal to the United States claim, which conflicts with the
undoubted right of individuals to fish for seals in the high
sea, a right which cannot be diminished or taken away by
a Government to which the owners of the right owe no
allegiance.

Nor is the United States contention in any way advanced
by an appeal to international law.

SOITBCE AND FOUNDATION OF INTERNATIONAL LAW.

It is incorrect to say that the best international law has
arisen from precedents that have been established when
the just occasion for them arose, undeterred by the discus-
sion of abstract and inadequate rules.

It may be observed that law so made would not be inter-
national law at all. International law is evolved by a more
just as well as a more tedious process. Its source is thus
stated by Kent :

The sole source of this law, the fountain from which it flows, Kent's |'Cora-

whether in its customary, conventional, or judicial-customary shape, in'ternatfona'l

is the consent of nations. Law," 2nd edi-

. -1 . tion, by Abdy,

And again: p. 4.

In cases where the principal jurists agree, the presumption will be Ibid., p. 37,
Tery greatly in favour of tlie solidity of their maxims; and no civil-
ized nation tliat does not arrogantly set ordinary law and justice at
defiance will venture to disregard the uniform sense of the established
writers on international law.

In the case of Triquet v. Bath, Lord Mansfield said:

I remember, in a case before Lord Talbot, of Buvot v. Bnrbut, upon 3 Burr. 1478 (at
a motion to discharge the defendant (who was in execution for not P"^"**^^^*

performing a decree) " because he was agent of commerce, com-
35 missioned by the King of Prussia, and received here as such;"
the matter was very ela])oratcly argued at the bar, and a solemn
deliberate opinion given by the Court. . . . Lord Talbot declared
a clear opinion, " That the law of nations, in its full extent, was part
of the laiv of England." ..." That the law of nations was to be
collected from the practice of different nations and the authority of
writers." Accordingly, he argued and determined from such instances,
and the authority of Grotins, Barbeyrac, Binkershoek, Wiquefort,
«S:c., there being no English writer of eminence upon the subject.

I was counsel in this case; and have a full note of it.

I remember, too, Lord Hardwicke's declaring his opinion to the
same effect; and denying that Lord Chief Justice Holt ever had any
doubt as to the law of nations being part of the law of Englaiul,
upon the occasion of the arrest of the Russian Amb.issador.*

This extract shows it to have been the opinion of Lord
Talbot, Lord Hardwicke, and Lord Mansfield, that interna-
tional law is to be collected from the practice of nations
and the authority of writers; and that they and Chief

*The italics in this passage are taken from the Report itself.
B S, PT X 3

34 . ARGUMENT OF GREAT BRITAIN.

Justice Holt were agreed in regarding it as part of the
law of England.

That branch of international law whicih deals with the
rights of nations, and which owes its existence to the con-
sent of nations, derives its force from well icnown and
recognized principles of justice, while that branch of it
wliich deals with tlie rights of subjects of different nations
is based on principles common to the laws of all nations.

International law does not nor can a Tribunal admin-
istering this law create novel principles, antagonistic to
such legal ])rinciples, nor is there any example which can
warrant Mr. Phelps' suggestion that this should be done.

The consent of nations would not be presumed in favour
of such novel principles, if, as is assumed above, a prece-
dent is sought to be created on the strength of them; and
this consent is essential to the admission of such prece-
dent.

It is, it is submitted, therefore clear that the decision of
the Arbitration Tribunal must conform to recognized i)rin-
ciples of law.

No other method is sanctioned by the Treaty of Arbitra-
tion. That Treaty distinguishes clearly between the ques-
tions as to existing rights and the question of future
36 Eegulations. The former are dealt with by Article
Vl", the latter by Article VII. Further, Article V
of the modus vivendi nndvcs the matter clear. By that
Article it is provided that " if the result of the Arbitration
be to affirm the rif/ht of British sealers " compensation shall
be made "for abstaining from the exercise of that right"
during the Arbitration ; and " if the result shall be to deny
the righV compensation shall be made by Great Britain.

THE LEGAL PRINCIPLES INVOLVED BEING COMMON TO
LAWS OF BOTH PARTIES TO DISPUTE, THEIR DECISION
MUST CONFORM TO THEM.

When, as in the present case, the rights and duties of
the respective parties would be determined by the princi-
ples of law common to the two countries in the same way,
it is submitted that it is the duty of the Arbitration Tri-
bunal to follow the common principles of the two laws, and
no others.

A STATE CAN AFFECT ONLY THE RIGHTS OF ITS OWN
SUBJECTS.

A nation has no power to affect by its special Statutes
the fundamental rights of possession and property, except
with regard to its own subjects and persons within its juris-
diction.

The United States Statutes, under which the British
vessels were seized and condemned, as those Statutes are
now construed by the Courts of the United States, would
aflect these fundamental rights with regard to the subjects
of other nations, and therefore are quoad the subjects of
other nations ultra vires.

ARGUMENT OF GREAT BRITAIN. 35

The Claim to Protection apart from Property.

The United States, assuiuing that their chiiiu to property
fails, endeavour to establisli an independent right to j^ro-
tect the seals on the high seas.

This is a contention wholly devoid of legal authority.

EIGHT OF A GOVERNMENT TO PROTECT.

The right of a Government to protect the property of
its subjects must rest on the same principles as the rights
of an individual.

Such rights as the United States may possess to protect
the seals are dependent on the existence of property in
them.

RIGHT RATIONE SOLI DOES NOT mPORT RIGHT OFF
THE LAND.

The exclusive right to take possession of animals on land,
dealt with in the preceding argument, does not cany with
it a right to protect such animals when they leave the land.

WHICH WOULD CONFLICT WITH RIGHTS OF OTHERS ON
HIGH SEA.

The right of all nations to fish on the high seas is
37 inconsistent with the claim of any nation to i3rotect
fish or other free-swimming animals there.
The contingency that fewer seals may resort to the
United States islands in consequence of the exercise of
this riglit of fishing on the high sea cannot affect that rjglit,
nor entitle the United States to claim that it should be less
freely exercised.

RIGHT TO PROTECT APART FROM CLAIM OF PROPERTY.

The United States, however, insist that they have such
a right of protection of the seals, in the open waters of the
Pacific, independently of the claim to a right of j)roperty
in the seals. Tlie claim of right thus advanced is novel
and un})recedented.

It is obvious that this question is in no way connected
with or dependent on the question of concurrent regula-
tions.

An abstract right of protection (such as is here claimed),
distinct from a right of property in the animal sought to
be ])rotected, cannot exist. It would involve the right to
make the protection respected, and tlierelore an interfer-
en<;e with the equality and indo])endence of other imtions
upon the high seas; an interference which must take tlie
concrete form of a right of visit and search. That such
rights do not generally exist in time of peace, except in
the case of piracy, is too elementary a proposition to need
demonstration. Pelagic seaUng is not piiacy.

36 ARGUMENT OF GREAT BRITAIN.

NO KIGHT OF PROTECTION BECAUSE FISH MAY BE GOING
TO THE ISLANDS.

Nor is the case altered by tlie fact that the chiim to pro-
tect is based on the assumption that the fish may be pro-
ceeding to a phice within the dominions where an excUisiv'e
right to take possession wouhl arise. Tliat no rights exist
Stephen' s^^"^'^' this cxcbisive right lias come into being' is again too
r,iMck.st.,iie, 7tii ek'meiitavy a proposition to need demonstration. For, as
Edit., vol. ii, p-Bhiclcstone says:

All mankind had, by the origiiinl grant of the Creator, a right to
pursue and take any fish or inhabitant of the waters.

That there is no right of protection at sea even when
such qnalitied property arises on laud has already been
demonstrated.

NOR ON ACCOUNT OF INTEREST IN INDUSTRY.

ciYr'\*"299*'^*^^ ^^^^ contention basing the riglit of protection on the
ground of an interest, an industiy, and a commerce cannot
be maintained. It must depend on the question whether
property has been established or not.

NOR EXCEPT AS AGAINST NATIONALS.

The only right of protection of fish and other free-
38 swimming animals in the high seas which can be
exercised by any State (apart from Convention) is as
against its own nationals. It may be in the interests of com-
merce and the fisliing industry of the nation that all its
fishermen alilce should be made to respect a close time, even
for migratory fishes, and even in the deep sea. A State has a
right to legislate for its own subjects on the high seas.

NATIONALS ON HIGH SEA MAY BE BOUND BY LEGISLA-
TION. — INSTANCE OF SUCH LEGISLATION.

It may be admitted further that it is not necessary that
this restriction ou national fishermen should be limited to
the high seas adjoining the territorial waters of the State.
The protection of the (Treenland fisheries, situated many
miles from the shores of the States which have legislated
in respc^ct of it, is an instance in point. But special
attention is directed to the condition precedent to such leg-
islation. By the legislation of Great Britain the Queen is
empowered to put the Act in force against her own fisher-
men "w/te» she is satisfied that other nations interested in
these fisheries have put similar Acts in force against their
subjects.''^ Such legislation rests, therefore, on an agreement
between the nations interested, which may be expressed in
a Convention, or may be tacitly understood.

Such legislation Great Britain is willing to pass in respect
of the seals in Behring Sea; but one essential condition on
which Her Majesty's Government iusist is, that the other
nations interested should pass similar laws.

ARGUMENT OF GREAT BRITAIN. 37

CONVENTIONS.

On the subject of Conventions and consequent legisla-
tion, on wliicli stress is laid in the United States Case, one
farther point alone need be mentioned at this stage of tlie
Argument. The sauie i)ower which a State has over its
nationals on the high sea enables it to delegate the enforce-
ment of the agreed regulations to the other Contracting
Party.

Beyond this, it is submitted, the legislative powers of a
State cannot go; tlie limitations on tlie powers here indi-
cated depend entirely on constitutional law.

No warrant for any larger i)ower, such as is claimed by
the United States, can be found in any known ijrinciple of
international law.

As to the reference to the "Laws of Natural History"
there is no known code of such laws, and as to the "com-
mon interests of mankind" these must be tested by, and
dealt with upon, legal principles.

NO PRACTICE HERE SHOWN TO WARRANT THE RIGHT
OF PROTECTION CLAIMED.

39 The same argument affords a complete answer to the
suggestion, that the right of protection on the high
seas against all comers depends on thei)ractice of nations.
If the United States had shown that all nations claimed to
exercise such a right of protection as is claimed by the
United States, or even that a lar-ge proportion of the nations
made such a claim, the argument that the right had i>assed,
or was passing, into the law of nations might have some
force; but the examination of the laws cited by the United
States, to which this Argument will next proceed, shows
that the jjosition taken up by the United States ou this
jioiut is absolutely untenable.

CLAIM TO PROTECTION WITHOUT PROPERTY FAILS.

Her Majesty's Government, therefore, submit that the
United States claim to protect the seals in the high seas,
and beyond the territorial waters, in so far as such claim
is independent of an alleged property in such seals, abso-
lutely fails.

It remains to be seen how far the practice of nations
supports the contention of the United States in regard to
the claim to protection or property.

UnitedlStates Argument from suggested Analogy of Laws of
other Nations Considered and Answered.

The claim of the United States to rest their Case on the
precedents of the laws of other nations forms a distinct
branch of their Case, and requires to be specially considered.

OBJECTS OF UNITED STATES ARGUMENT FROM LAWS OF
OTHER NATIONS.

Such laws are referred to, by the United States, for three
objects:

38 ARGUMENT OP GREAT BRITAIN.

Uiiited^^states 1. To eiideavour to prove a uiiiform practice of nations
ase, p. — . ^^ protect seal life froui detstr action by means of extra-
tcriitorial lej?islation.
Bjid., p. 231. 2. To endeavour to show a uniform practice of nations

of extending the provisions of their fishery laws beyond
the 3-niile limit; and of making these i)rovisions api)licable
to foreigners.
Ibid., p. 237. 3^ To show that other examples of extra-territorial juris-

diction are to be found in the laws of other nations.

DEDUCTIONS DRAWN FROM SUCH LAWS.

The deductions desired to be drawn by the United States
from the examples cited are:

From 1. That the United States law under which Brit-
ish vessels have been seized is justified by the laws of other

nations for the i)rotection of seals.
40 From 2. That this law is justified by analogy to

the fishery laws of other nations; and

That the application of this law to foreigners beyond
the 3-mile limit is also justified by example and analogy.

From 3. That the law, and more especially in its appli-
cation to foreigners beyond the 3 mile limit, is further justi-
fied by analogy of other extra-territorial laws not dealing
with fisheries.

It is proposed to demonstrate in the following Argu-
ment that these premises are not well founded, and that
the position assumed by the United States is untenable.

With regard to the argument from the practice of other
nations, or from analogy to the practice of other nations,
it is submitted that the following propositions can alojie be
maintained.

GENERAL PRINCIPLES ON WHICH ANY EXCEPTION MUST

REST.

To warrant any exceptional departure from the prin-
ciples commonly accepted by all nations as ])art of the law
of nations, it is essential that there should bean agree-
ment between all —

1. As to the sufficiency of the causes calling for such
exceptional legislation.

2. As to the means for remedying such causes, i. e., as to
the purport of such legislation.

This follows from the fundamental principle on which
the law of nations rests, viz., consent of nations.
3'!11'^^^b"°' This subject has already been dealt with, but it is neces-
sary to examine categorically the examples of extra-terri-
torial legislation adduced by the United States in order to
show that they utterly fail to support the argument for
which they are cited.

In supiiort of the first proposition advanced — that seal
life is ]>r<)teeted by extra-territorial laws of other nations,
the instauces adduced by United States are the following:

ter-Case, p. 86.

ARGUMENT OF GREAT BRITAIN. 39

British.

The Falkland Islands.
Kcw Zealand.
Cape of Good Hope.
Canada.
Newfoundland.

Foreign.
Sweden. "^ •

Eussia l^^^itli reference to tlie Greenland or
Gennanv *^^^ Mayeu fisheries.

Holland. ^

41 Eussia.
Uruguay.
Chile.

Argentine Ee|iublic.
Jajjan.

The Falkland Islands.

The Act xirovidiug a close time for seals is No. 4 of 1881. It recites United States
that the seal fishery of the islands was ouce a source of profit to the 9",'^^' ^PPt-i'li^.
colonists, but has been exhausted by indiscriminate and wasteful fish- ^'^ '^'^' "''
ing, and that it is desirable to revive and protect this industry by the
establishment of a close time tvithin the limits of this Colony and its
dependencies.

The Statute then enacts that a close time shall be observed "within
the litnits of this Colony and its dejjendencies" from the Ist October to
the 1st April.

The words italicized have a special meaning. The powers
of a Colonial Legislature are well known; they have been
defined by the Judicial Committee of the Privy Council ;
and their limitation to the Colony and its territorial waters
is not only understood, but is enforced.

Yet the United States, instead of referring to long- united^^states
established principles, prefer to rest their contention that AjfiK'niuCvoUi,
the Colony would interpret this Statute on different prin-P-^^-^-
ciples, and extend its provisions to the high seas, on the
deposition of James W. Budington, an American master
mariner and sealer, in which he merely expresses what his
opinion and understanding of the matter are.

There is no evidence to support the contention that the
Statute would, or could, be enforced on the high sea.

New Zealand.

The Statute No. 43 of 1878 for the protection of seals establishes a ..^^^^i •^PP,®,^
1 r • 1 i A T, J. ii /-( dix, vol. 1, p. i\i6.

close season ; no reference is made to waters, but the Governor may ' *^

by order exclude any part of the Colony from the provisions of the

Statute.

A "public iishery" is defined to be "any salt or fresh waters in the

Colony, or on the coasts or bays thereof;" it includes artificial waters,

and extends to the ground under such water.

42 Furtlier, it is provided that offences against the Act com-
mitted oti the sea-coast or at sea within 1 marine league of the

coast are to be deemed as having been committed in a "public fishery."

"The Fisheries Conservation Act of 1884" :i])plies to certain waters

of the Colony, the term "waters" being defined to mean "any salt.

40 ARGUMENT OF GREAT BRITAIN.

fresh, or brackish waters in the Colony, or on the coasts or hays
thereof." The Governor is enabled to make regulations for the pro-
tection of fish, oysters, or seals.

By "The Amendment Act No. 27 of 1887" the penalty for violating
the principal Act in its application to seals is increased.

Vessels illegally taking seals are declared to be forfeited, and Her
Majesty's vessels and ofticers are empowered to seize such vessels "i/
found tvithin the jurisdiction of the Government of the Colony of New Zea-
'land."

The Act also allows vessels within the same jurisdiction to be
searched.

United States With regard to tliis legislation of New Zealand, the
ase.p. . xjiiited States Case contains an extraordinary mis-state-
meut:

The area designated as "the Colony" is taken to mean the area spec-
ified in the Act [26 & 27 Vict., cap. 23, sec. 2] creating the Colony,
which defines its bor.ndaries as coincident with parallels 33'^ and 53°
south latitude, and 162° east and 173° west longitude.

*****

The definition in the Act [The Fisheries Conservation Act, 1884] of
the term " waters" indicates that it applies to the entire area of the
Colony, of which the south-eastern corner is over 700 miles from the
coast of New Zealand, although a few smaller islands intervene.

Ibid., Appen- In the Map in the United States Case an area coloured
IX, TO .i,p. . pjjjj. jg gi^Q^i)^ comprising the waters between the limits of
latitude and longitude, to found the contention that these
waters are included within the colonial limits.

The words of tlie Imperial Statute 26 & 27 Vict., cap. 23,
sec. 2, above referred to, nevertlieless, are clear and exj)licit,
and are not capable of being misunderstood.

The designation of the Colony in that Statute is as fol-
lows:

Ibid., p. 436. The Colony of New Zealand shall, for the purposes of the said Act

and for all other purposes whatever, be deemed to comprise all terri-
tories, islands, and countries hi'uKj lietireen 162° east longitude and 173°
west longitude, and between the 33rd and 53rd parallels of south lat-
itude.

Only the territories, islands, and countries lying between
these limits of latitude and longitude are thus seen to be

included witliin the Colony.
43 The argument liere shown to be fallacious is the

same as that by which the United States claim to
treat Behriug Sea as ceded territory.

Cape of Good Hope.

The only Regulation affecting the question in this Col-
ony is a "Cape Government Notice" of 1844, which is as
follows:

British Com- His Excellency the Governor, having been pleased to r^ecide that
mis.siouers' Ke- the seal isl'and in Mossel Bay shall not lie granted on lease for the
port, p. 194. present, hereby prohibits all persons from disturbing the seals on the

said island, and warns them from trespassing there after this notice

on pain of prosecution.

United States The United States evidence as to this Colony is that of
unired States ^' 0. B. Stamp, wlio says that he " knows nothing about
Tdn^^GTe"^'^'^^'" ^°^ ^^ ^- Comer, who states that he would not dare
Vbi(i.yp!596. to take seals in the waters adjacent to the rookeries.

argument of great britain. 41

Canada.

The Fisheries Act, 1886, 49 Vict., cap. 95, prohibits the killing of
■whales, seals, or ijorpoises with explosive iustrumeuts, aud during
seal-tishing time from disturbing or injuring any sedentary seal tisli-
ery, or from frightening the shoals of seals coming into such tisherj-.

The United States' statement in respect of this Statute united states
is that it prohibits all persons without prescribing any '^•*^''' p-^-^-
marine limit; and the inference drawn is that it applies to
all persons on the high seas, including foreigners.

This erroneous inference will be disposed of by the con-
sideration of the jn-inciples of construction of Colonial
Statutes to be presently dealt with.

44 Newfoundland.

The Seal Fishery Act, 1879, 42 Vict., cap. 1, established a close time United States

for seals, and prohibits the killing of "cats" (immature seals) in Case, p. 225.

order more cfticientlv to in-eserve this close time. Steamers are not ,.-^^"'-i .^we"-
11 1 i 1 J. \ r J. • 1 ilix, vol. 1, p. 442.

allowed to leave port beiore a certnin day. "^

The Seal Fishery Act, 1892, provides more stringent regulations for
the observance of the close time, and heavier penalties for leaving
port before a certain day.

Seals killed in breach of the close time are not to be brought into
any port of the Colony or its dependencies under a penalty of 4,000
dollars.

Steamers are forbidden from going on a second trip in any one year,
and if they shall engage at any time in killing seals at any place
Avithin the jurisdiction of the Supreme Court of Newfoundland alter
returning from the first trip they shall be deemed to have started on
a second trip.

UNITED STATES CONCLUSIONS FROM FOREGOING BRITISH
STATUTES.

From these Statutes the following conclusions are drawn umted states
in the United States Case: ^ Ca8e,p.22».

1. That Great Britain and its dependencies do not limit
their Governmental ]>rotection to the fur-seal ; it is extended
to all varieties of seals wherever they resort to British ter-
ritorial waters.

2. And they have thrown about them upon the high seas
the guardianship of British Statutes.

It is admitted that the principle of providing a close
time for seals has been adopted by British legislation as
essential to the preservation of seal life.

It is denied that any country has the power to enforce
such close-time regulations beyond the territorial waters
against subjects of a foreign nation, though it may do so
as regards its own subjects; and neither Great Britain nor
her Colonies have ever departed or attempted to depart
from this principle.

UNITED STATES INFERENCES UNWARRANTED.

It is denied that the inferences drawn by the United
States in respect of the legislation of some of the Colonies
already considered are warranted. The principles of Eng-
lish law show conclusively thatsuch inferencesare unsound;
it has already been shown they are not in accordance with
the facts ; and no evidence has been adduced by the United
States to suj)i)ort them.

42 ARGUMENT OF GREAT BRITAIN.

lu the case of the Falkland Islands, the conditions

45 recited in the preamble of the Statute are identical
with those wliich are alleged to exist as to the seals

in the North Pacific, and the colonial legislation has been
framed in strict accordance with the principles contended
for by Great Britain.

ivTeither Great Britain nor her Colonies, under circum-
stances of seal life precisely identical with those of the
seals in the I^^orth Pacific, have attempted to establish a
right of property in or protection of the seals frequenting
and breediijg on their shores when they leave the terri-
torial waters.

Greenland or Jan Mayen Fisheries.

United states The sccond gToup of enactmeuts of other countries
Case, p. 227. referred to in the United States' Case are based upon Con-
ventions; they therefore lend no support to the United
States' contention, that 'they can by their independent
action claim to enforce such regulations against the sub-
jects of other nations in respect of fishing in the high sea.
The enactments in question are those of Great Britain,
Sweden, Norway, Russia, Germany, and Holland. They
all deal with the Jan Mayen seal fisheries in the Atlantic
east of Greenland; and proceed on the principle here
enunciated.

LEGISLATION AS TO GREENLAND FISHERY.

38 Vict., cap. 18. The first section of "The Great Britain Greenland Seal
Fishery Act of 1875" is shortly as follows:

When it apjiears to Her Majesty in Council that the foreign States
whose ships or subjects are engaged in the ,Jau Mayen fishery . . .
have made or will make with respect to their own shii)s and subjects
the like provisions to those contained in this Act, it shall be lawful
for Her Majesty, by Order in Council, to direct that this Act shall
apply to the said seal fishery.

The legislation of the other countries is conceived in a
similar spirit, and was passed after negotiations between
their respective Governments.

The necessary legislation having been provided, the
Queen, by Order in Council, dated the 28th November,
1870, put the Act in force against her own subjects.

46 PRINCIPLES OP FISHERY CONVENTIONS.

c^e'*)^?'"^**^ The great difficulty of effectively maintaining a close

' ■ ' ' time in distant fisheries in the high seas, and of protecting

and regulating such fisheries, except as against subjects,

has in many instances been dealt with by Conventions, as

is stated in the United States Case.

These Conventions proceed on principles well established.
These principles are:

1. The determination of the limits of the exclusive fish-
eries of the respective parties to the Convention.

2. Except as expressly varied by agreement the respec-
tive national jurisdictions are preserved intact.

ARGUMENT OF GREAT BRITAIN. 43

3. It is only by agreement that jurisdiction on the high
sea over its nationals is given by one nation to another.

These principles do not advance the United States con-
tention. The consent of other nations is wanting to the
exercise by the United States of the exclusive control
wnich it claims.

ARGUMENT TO BE DEDUCED FROM EXISTENCE OF
CONVENTIONS.

The existence of the Conventions demonstrates their
necessity; by such Conventions alone can one nation pre-
sume to control the subjects of another State upon the high
seas.

They recognize the right of the subjects of all the Con-
tracting Parties alike to fish in the high sea beyond th^
territorial waters, but for their mutual benefit they subjecfr
the fishing to regulations to be observed by the subjects
of all alike. The Conventions and the legislation giving
effect to them do not profess to impose these regulations'
on the subjects of other countries not ])arties to the Conven-
tions, nor to prohibit them in any way from fishing in the
high seas, nor could they do so.

EussiA.

EXAMINATION OF FOREIGN SEAL LEGISLATION.

White Sea.

The Russian law dealing with the Ustinsk sealing indus- united stntes
try in the White Sea is"^ set out in the United States ^'lil"'^^^'"*'"^-''

Case.
47 The industry is carried on in the Gulf of Mesensk

in the White Sea; the gulf is 53 miles wide.

The principal provisions of the law are the appointing
certain days of departure to the fisheries, and prohibiting
the lighting of fires to windward of the groups or hauling-
grounds of the seals.

The law is not directly or indirectly applied to foreigners.

Further, Article 21 of the Russian Code of Prize Law of British Case,
1869 limits the jurisdictional waters of Russia to 3 miles ^il^u^'^'ag"'-"'
from the coast.

BeJiring Sea and Sea of OJcJiotslc.

This Article applies to the western shores of Behring British case,
Sea, and the regulations published at Yokolnuna in 1881, ?• i^"-
with respect more especially to sealing off the Commander
and Robben Islands, are inconsistent with the United
States contention as to Russia's claims to jurisdiction.

The prohibitions contained in these regulations were ii)id-, Appen-
explaiued by M. de Giers in a letter to Mr. Hoffmann. u"^' ^f % ^^'*

This measure refers only to prohibited industries and to the trade
in contraband :

"The restrictions which it establishes extend strictly to the terri-
torial waters of Russia only."

44 ARGUMENT OF GREAT BRITAIN.

Caspian Sea.

caY?^*?*^'^28*A'^* ^^^^ flsliiiigf and sealing- industries in the Caspian Sea
peiui'ix, voi.'i, p. are also dealt with by law. which expressly declares that
"^^^^ the catching- of tlsh and killing- of seals in the waters of the

Caspian included in the Kussian Enii)ire are free to all A\dio
desire to engage in the same, except in certain s])ecified
localities, under observance of the established rules. A
close time is appointed.

The Caspian ttea is a land-locked sea included within the
territorial dominions of Russia and Persia, and the regula-
tions have no bearing on the questions involved in the right
of fishing in Behring- sea.

48 TJruguat.

ci^"'*rVif*A*'^ The law of Uruguay establishes a close time for seals on
pomVix, Tui." i, p. the Lobos and other islands on the coasts of Rio de la
^^°- Plata, and in that part of the ocean adjacent to the Depart-

ments of Maldonado and Rocha.
British cmiii- j^ jg jq ^q scuse extra territorial.

*=«• p- • rpijg provision prohibiting- vessels of any kind from
anchoring off the islands, and the construction of works
that might frighten away the seals, is territorial.

Chile.

Ibid., p. 91. The Ordinance of 1892 allows only Chileans and for-

eigners domiciled in Chile to engage in the pursuit on land
or at sea of seals and otters in the coasts, islands, and ter-
ritorial waters of the Republic.

Foreign vessels are prohibited from engaging in this
industry.
United States This Law is obviously not extra-territorial, but it is
Case, p. 229. appealed to in support of the United States contention of
a right of property and protection on the high, sea, to which
it is diametrically opposed.
British Conn- Tlic princi})lea on which the British contention is based
ter.uase,p.9i. ^^.^ exprcssly laid down in the Chilean Code.

Argentine Republic.

The laws of the Republic are not set out in the United
States Appendix. The statement in the United States
Case is merely that i)rotection is given to the fur-seals
resorting- to the coasts; it is not stated that the regulations
are extra-territorial, or that they apply to foreigners.

Japan.

United^ states Japanese law dcals with hunting and killing- seals and
pendix,' vol.' if p. sea-otter in the Hokkaido, i. e., Yezo, and certain islands
*^9- to the north belonging to Japan.

British Coun. 49 The law is uot cxti'a territorial, and the Japanese

ter Ces6 d 93

' ■ Government have stated that they consider that

there are no means of checking foreign fishermen outside
the line of territorial limits fixed by international law.

ARGUMENT OF GREAT BRITAIN. 45

CONCLUSION FROM FOREIGN LAWS.

None of the coantries above specified profess to control
tlie killing of seals by extra-territorial iirovisions, or by
interfering with foreigners on the high seas, or in any
other way than in accordance with the principles already
established; nor do the}' profess to claim a property in or
a right of protection of seals in the high sea.

The first contention of the United States, that seal life
is protected by extra territorial laws of other countiies
applicable to foreigners, is therefore shown to be without
foundation.

EXAMINATION OF SECOND CONTENTION OF THE UNITED
STATES AS TO LAWS OF OTHER NATIONS.

A further contention of the United States is that, not
seal fisheries only, but other fisheries, are in-otected by
extraterritorial laws of other nations, and that they are
extended to foreigners.

The contention is based on the following exami^les:

British.

Irish oyster fisheries.

Scotch herring fisheries.

Ceylon pearl fisheries.

Queensland and West Australian pearl fisheries.

Foreign.

France.

Algerian coral fisheries.
Italian coral fisheries.
Norwegian whale fisheries.
Colombian pearl fisheries.
Mexican pearl fisheries.

From these examples, an inference is attempted to be
drawn that the United States are warranted in deiiiaiuliiig
from other nations acquiescence in their claim that tlieir
legislation for Alaska should apply to the seal fishery in
Behring Sea.

EXAMINATION OF BRITISH FISHERY LEGISLATION.

The contention that British fishery legislation is extra-
territorial, or, if extra-territorial, that it extends to lor-

eigners, remain to be considered.
50 It is later pointed out that considerations api)ly (fosf, p. 50.)

to the case of oyster, pearl, and coral fisheries, wiiich
have no application to the case of free swimming fish or
animals.

Irish Oyster Fisheries.

The law dealing with the oyster fishers on the coast of
Ireland is shortly as follows:

The Statute permits the Irish Fishery Commissioners to 3ianci32Vict.,
regulate, by bye-laws, oyster dredging on banks 20 miles ^q ^»p- *^' ^ec. 67.

46 ARGUMENT OF GREAT BRITAIN.

seaward of a certain liue drawn between two headlands on
the east coast of Ireland.

Within this liue the extreme depth of indentation is not
more than 5 miles.

The Act provides that the bye-laws are to apply equally
to all boats and persons on whom they may be binding;
but they are not to come into operation until an Order in
Council so directs.

The Order in Council is to be binding on all British sea-
fishing boats, and on any other sea-fishing boats specified
in tlie Orders.

The facts which have occurred since the passing of the
Statute are as follows :

The Commissioners have made a bye-law appointing a
close time.

Tlie bye-law was put in force by Order in Council of the
29th April, 1869.

The Order recited the power given to the Queen by the
Act to specify other besides British boats to which the
bye-law was to apply.

No other boats were so specified.

The law is therefore expressly limited to British boats
witliin the 20 miles. It cannot by the terms of the Act
itself apply to any foreign boats.

It would be contrary to the principles on which British
legislation invariably proceeds that bye laws should apply
to foreign boats outside the 3 mile limit, unless power to
enforce such a bye-law against the boats of any nation had
been acquired by Treaty.

The j)rovision was inserted in the Act to provide for the
case of any such Treaty being entered into.

Thereafter, without such enabling provision in the

51 Act, the Queen would possess no power to make an

Order in Council bringing foreigners within the Act.

TTiiiied states The Statement made in the United States Case is there-

Case, p. 232. /. . ,

tore inaccurate.

Scotch Herring Fisheries.

By the Act of 1887, 52 & 53 Vict., cap. 23, a close time
is provided, and trawling is prohibited within the north-
eastern indentation of the coast of Scotland: the line of
limit is drawn from Duncansby Head, in Caithness, to Eat-
tray Point, in Aberdeenshire, a distance of 80 miles.

Penalties are imposed on any person infringing the pro-
visions of the Act.
Ibid., p. 233. Stress is laid in the United States Case on the words
"any person;" and the statement is made that "the Act is
not confined in its operations to British subjects."

This statement is at variance with the principles of
English legislation and the practice of the English Courts
in interpreting Statutes.
{Post, p 56.) "Any person" is a term commonly used in English Stat
utes dealing with ofi'ences, and it is invariably ai)plied to
such persons only as owe a duty of obedience to the British
Parliament.

ARGUMENT OF GREAT BRITAIN. 47

Ceylon Pearl Fisheries.

The poarl fisheries on the banks of Ceylon, which extend caYe p^253^***^*
from () to 21 miles from the coast, are subject to the Colonial . i-iliiendix, vol.
Act of 1811, which authorizes the seizure and condemnation '• ^'i-tuah coun-
of any boat found withiu the limits of the pearl banks, orterC'ise, pp. 93,
hovering near them.

These pearl fisheries have been treated from time imme-
morial by the successive rulers of the island as subjects of
property and jurisdiction, and have been so regarded with
the acquiescence of all other nations.

The principles governing the occupation of such pearl (Post, -p. 50.)
fisheries will be dealt with at a later stage of this Argument;
for the ])resent it is sofiicient to indicate the proposition
which Great Britain will maintain by a quotation from

Chief Justice Cockburn, in Eeg. v. Keyn: u.^e^.^"- "^"^ ^^•

52 Where the sea, oi" the Led ou which it rests, can be physically

occupied permanently, it may be made subject to occupation in
the same manner as unoccupied territoiy.

The special application of this principle to the Ceylon "Droit nea
fisheries was thus treated by Vattel: Geus,"i.8ec.287.

Who can doubt that the pearl fisheries of Bahrien and Ceylon may
lawfully become property?

Australian Pearl Fisheries.

In the United States Case reference is thus made to the
Australasian fishery laws:

These Statutes extended the local regulations of the two countries United States
mentioned ((Queensland and Western Australia) to defined areas of the Cas(i, p. 2:!4.
0]>en sea, of which the most remote points are about 250 miles from j^ pp.'4(i7-409.^*' '
the coast of Queensland, and about 600 miles from the coast of West- ' Biiti.sh Coun-
ern Australia. ter-Case, p. 94.

It suffices to point out that these Statutes are in express
terms confined to British ships and boats attached to Brit-
ish ships.

Foreign Fishing Laws discussed.
France.

By the Decree of the 10th May, 1862, certain fisheries are allowed to TTnited States
be1jemi)oravily suspended over an extent of sea beyond the o-mile limit Case, p. 234.
if it is necessary for the preservation of the bed of the sea, or of a fish- British Couu-
ery composed of migratory fislics. The suspension will be ordered on terCase, p.94-95.
the request of the "iirud'hommes des pechcurs," or, in their absence,
of the ''syndics des gens de mer."

There is no evidence that this law is applied to for-
eigners.

On the contrary, there is evidence that, apart from Con-
ventions, France only legislates for foreign fishermen within
the 3-mile limit.

Article 1 of Law 1 of March 1888 lays down:

Fi.shing by foreign vessels is forbidden in the territorial waters of
Trance and Algeria withiii a limit which is fixed at 3 marine miles to
sea from low-water mark.

48 argument op great britain.

63 Algerian Coral ^Fisheries.

The United States Case proceeds:

British Conn- Niiinerons laws have also been enacted by France to -protect and
ter-Case, p. 95. regulate the coral iislieiies of Algeria, both as to n.itives and for-
eigners, and the coral beds so regulated extend at some points as far
as 7 miles into the sea.

. cTniteii States Tbis Statement is not verified by particulars or evidence,
voLtp.wa"'''''" ^"^ ^ -^'"^P ^^ S^^'^" i" tlie United States Case, in which
tbis 7-mile limit is indicated.
(Poi«,p.59.) Tbe international law as to occupation of coral beds will
be dealt with presently; but it may be noted tbat the anal-
ogy between a 7-mile ])rotection of a coral bed extending
from low-water mark under tbe sea, and protection of seals
on tbe high sea, is not apparent, either as to tbe principles
governing tbe two cases, or tbe facts to which those prin-
ciples should be applied.

Italian Coral Fisheries.
CaYc,'[.i.i5^*'*'' The United States Case states tbat—

Ibid., ^Appen-^iip coral beds surrounding the Island of Sardinia, and lying oif the
dix, pp. 4/0-481. south-west coast of Sicily, have been made the subject of elaborate
regulations by the Government of Italy.

Tbe remarks that have already been made as to the
Algerian coral fisheries equally apply to the Italian reefs,
and it is not suggested by the United States that foreigners
have been excluded.

Norwegian Whale Fisheries.

British Conn- The Norwcgiau law of 1880 for the protection of whales

%'iiued ^states pi'ovidcd a close time "on that part of the sea on the coasts

Case I..23C. of Fiumarkeu which the King will define."

dix, vol. i, p!Ts2! The Proclamation of tbe King, in 1881, accordingly

defined tbat part of tbe sea to be 1 Norwegian or Swedish

mile (equal to 4 British miles) from tbe coasts of Fin-

marken, to be counted from the outermost islands or rocks

which are never covered by the sea.
5^ Tbe wbole of Varanger Fiord is included, the dis-

tance between the headlands of the fiord being 32
miles.

The Norwegian law is, therefore, expressly limited to a
small area of territorial sea.
(Pos«,p.59.) Tije special ])rotection in Varanger Fiord falls within
the principle of waters of tlie territory to be hereafter
explained.

Colombian Pearl Fisheries.
TTnitea States The Law of Panama is thus stated in United States

Case, p. 236. /-, ~f, , ., .,

Ibid , Appen- Case. It prohibits —

dix, vol. i, pp.

484-485. the nse of divmg-machincs for the collection of pearls within an area

of the sea over 60 marine miles in length, and extending outward

about 30 marine miles from the coasts.

Tbere is no evidence to show tbat the law in question,
if correctly stated, apijlies to foreigners.

ARGUMENT OF GREAT BRITAIN. 49

Even if the bays shown on the United States Map are <Post,v.59.)
intended to be inelnded in the a])i)lication of the law as is
sn,c:gested in the United States Case, the chiim mnst be
justified, if at all, on the principle of waters of the terri-
tory previousl}' referred to and subsequently explained.

Mexican Pearl Fisheries.
The United States Case states — Case/p, 236. '

that along the coast of Lower California tlio pearl-befls have beeu Ibid., Appen-
uiade the suhjeet of special exclusive grants to private individuals, dix., vol. i, p. 491.
and have been divided for tliis ]>nrpose into two belts: the inner belt
extending seaward for 3 miles (5 kilom.), and the other belt for 6
miles (10 kilom.).

Foreign vessels are admitted generally to the Mexican ^^f^**'^^^ ^9""°"
fisheries if they comjjly with the laws and regulations. ^^ it»o,v-

The only claim made by Mexico is to regulate all fisher-
men alike; but with regard to English fishermen, attention
is drawn to the provisions of Article IV of the Treaty of
1888 between Great Britain and Mexico, by which the two
Powers agree to 3 miles as the limit of their territorial
waters.

55 THE UNITED STATES CONTENTION NOT SUPPORTED

BY FOREIGN LAWS.

These are the only foreign laws set out by the United
States, and it may be assumed that there are no laws of
any other countries on which the United States could rely
to support their claim, either directly or by analogy.

Her Majesty's Government submit that these laws do
not support the United States contention.

Examination of Legal Principles.

statement of legal principles referred to in
analysis of british and foregin laws,

Throughout the foregoing discussion of the legislation
of various nations, certain principles of law have been
referred to, the full explanation of which had necessarily
to be i^ostponed until the examinations were completed.

For convenience these principles will now be collected,
and will then be separately examined:

(1.) That by the universal usage of nations, the laws of
any State have no extra-territorial application to foreign-
ers, even if they have such api)lication to subjects.

(II.) That Great Britain has incorporated this principle
into her own law by a long-established usage, and a series
of decisions of her Courts; and that the law of the United
States is identical.

(III.) That the British Colonies have no power to legis-
late for foreigners beyond the colonial limits.

(IV.) That international law has recognized the right to
acquire certain portions of the waters of the sea and the
soil under the sea, in bays, and in waters between islands
and the mainland.

B S, PT X 4

50 ARGUMENT OF GREAT BRITAIN.

(V.) That tlie analogy attempted to be traced by tlie
United States l;)etween the claims to protect seals in Beli-
ring Sea, and tlie principles applicable to coral reef's and
pearl-beds, is nnwarranted.

(VI.) And, finally, that there is no complete or even
partial consent of nations to any such pretension as to
property in, and protection of, seals as set up by the
United States.

I.

EXTRA-TERRITORTAL LAWS OF A STATE HAVE NO APPLI-
CATION TO FOREIGNERS.

It is submitted that, as well by international and con'
stitutional law as by the comTnon consent and practice of
nations, the laws of a State have no application to for-
eigners beyond the territorial limits of that State;
56 and that if they are declared to have an extra-
territorial application, it is limited to subjects of
that State who may fall within its provisions.

The fundamental juinciple which governs the application
of laws is expressed in the maxim, extra territorium jus
dicenti impune non parctur.

No general propositions are clearer than these.

All persons are subject to the laws of a country in wliicb
tbey are.

No person is subject to the laws of a country in which he
is not.

The only exception is that subjects maybe legislated for
by their own Legislature, even though they are abroad, the
enforcement of any punishment being reserved till such
time as they return to their own country.

These principles are of equal force on the high seas.

In ships on the high seas, no one is subject to any juris-
diction but that of ills own country, or of the country to
which the ship belongs. The laws of other countries do
not bind him, and he may disregard them with imi)unity.

II.

THE LAWS OF GREAT BRITAIN HAVE NO EXTRA-TERRI-
TORIAL APPLICATION TO FOREIGNERS.

It may be conclusively demonstrated that Great Britain
has incorporated this principle into her municipal law by
a long-established usage, and by a series of decisions of
her Courts.
L E. 2EX.D. ^^ ^^^S' ^'' Kcyii) Cockburn, 0. J., said:

TNTiere the language of a Statute is general, and may include for-
eigners or not, the true canon of construction is to assume that the
Legislature has not so enacted as to violate the rights of other nations.

see^ aiso^tiie This is the auswcr to the argument of the United States,
veiein," citeti"in bascd upou the words " any person" in British and Colonial

clitJ.S"'"- Statutes.

ARGUMENT OF GREAT BRITAIN. 51

The iutimate comiection between tlie national law and
the international law is indicated in the Judgments now
quoted.

QUOTATIONS FROM ENGLISH JUDGMENTS.

In the case of " Le Louis," Lord Stowell said : 2 Dodson, 239.

Neither this British Act of Parliament nor any Couiniission founded
on it can affect any right or interest of foreigners unhjss tliey are
foinided on principles and impose regulations that are consistent with
the law of nations; that is the only law that Great Britain can apply
to them, and the generality of any terms employed in an Act of Par-
liament must be narrowed in construction by a religious adherence
thereto.

57 So in Cope v. Doherty, Lord Justice Turner said : j 2^^)^ gcx. and

This is a British Act of Parliament, and it is not, I think, to be pre-
sumed that the British Parliament could intend to legislate as to the
rights and liabilities of foreigners; in order to warrant such a conclu-
sion, I think that either the words of the Act ought to be express or the
context of it very clear.

So in Jeffreys v. Boosey, Baron Parke said: ^^.^^ h. l. cases,

The Legislature has no power over any persons except its own sub-
jects, that is, persons natural-born si;bjects, or resident, or whilst
they are within the limits of the kingdom ; the Legislature can iiujiose
no duties except on them, and when legislating for tlie beuetit of
persons must ;j)v»)« /((c/e be considered to mean the benelit of those
who owe obedience to our laws, and whose interest the Legislature is
under a correlative obligation to protect.

A remarkable application of this principle occurred in
the case of ex parte Blain re Sawers. The question arose
as to the application of the Eng^lish Bankruptcy Law to
foreigners in England; the deiinitions of acts of bank-
ruptcy in the Statute include the commission of certain
acts "in England or elsewhere;" yet it was held by the
Court of Appeal that a foreigner iu England, althongh on
general principles he was subject to English law, could not
be made bankrupt unless he had committed an act of bank-
ruptcy in England. The words "or elsewhere" were held
not to apply to such a foreigner on the principles above
stated.

It is unnecessary further to cite authorities; one more
quotation from Chief Justice Cockburn's judgment in Eeg.
V. Keyn will suffice:

The argument is that the language of the Statute fof Llenry VIII
as to offences on the sea) being general in its terms, it must be taken
to have included foreigners as well as subjects. No doubt these words
are large enough to include foreigners as well as subjects, but so they
are to include the entire ocean as well as the narrow seas; and it
cannot be supposed that anything so preposterous was contemplated
as to make foreigners liable to the law of this country for offences
committed on foreign ships all over the world.

It is submitted that the Statute under which the British
vessels were seized and condemned was either wrongly
interpreted, or was ultra vires.

L. K. 12Ch.D.

500.

L. E., 2 Ex. D.
63.

C. 445.

52 ARGUMENT OF GREAT BRITAIN.

58 III.

COLONIES HAVE NO POWER OF EXTRA-TERRITORIAL
LEGISLATION FOR FOREIGNERS.

It may furtlier be demonstrated that Great Britain has
not assumed to grant to her Colonies any larger legislative
power than she assumes to possess herself; and that tlie
Colonial Legislatures cannot assume to themselves any
l)ower of extraterritorial legislation for foreigners, as is
alleged in the United States Case.

On this point, it would be sufl1(;ient to refer to the words
of "The Territorial Waters Jurisdiction Act, 1878," which
defines the territorial waters "adjacent to the United King-
dom or any other part of Her Majesty's dominions" to extend
no fart'nor than 1 marine league from low-water mark.

Tlie fitidicial Committee of the Privy Council have ex-
])ressly declared the limits of the Colonial Legislative
I*ower.
L. R., 1S31, A. In jMacleod v. Attorney-General for New South Wales
the colonial law as to l)igamy was considered.

The section enacted that —

Whosoever beiug married marries another person during the life of
the former husband or wife, wlieresover such second marriage takes
place, shall be liable to penal servitude for seven years.

Here were general words similar to the words "any per-
son" so much relied on by the United States.

The Judicial Committee nevertheless rejected their gen-
eral ai)plication. They said:

The colony can have no such jurisdiction, and their Lordships do
not desire to attribute to the Colonial Legislature an effort to enlarge
their jurisdiction to such an extent as would be inconsistent with
the powers committed to a colony, and indeed inconsistent with the
most fauiilar principles of international law.

.f * # « *

The words "Whosoever being married" mean "whosoever being
nmrried and who is amenable at the time of the offence committed to
the jurisdiction of the colony."

# « * * *

"Wheresoever" may be read, "Wheresoever in this colony the
offence is committed."

And so, both in case of colonial laws and in the case of

English laws, the words "any person" mean "any person

subject to the jurisdiction of the Legislature passing such

laws," subject, that is, in accordance with the prin-

59 ciples of international and constitutional law here
explained.

The contention of the United States that the British
colonial laws warrant, or afford some analogy to, the Alas-
kan Seal Statute, is entirely devoid of foundation.

ly.

HOW FAR INTERNATIONAL LAW RECOGNIZES A RIGHT TO
POSSESSION OP PARTS OF THE BED OF THE SEA.

It is next submitted —

That international law recognizes the right of a State to
acquire certain portions of the waters of the sea and of the

ARGUMENT OF GREAT BRITAIN. 53

soil under the sea, and to include tlieni Avitlnu the territory
of the State.

This affords a legiliinate explanation of the cases of for-
eifju extra-territorial fishery hiws cited by the United States,
quite apart from any question whether they apply to for-
eigners or not.

Bnt it affords no justification for, nor are they analogous
to, the Alaskan Seal Statute, as is contended by the Unitedi
States.

The territory of the imtion extends to low-water mark;
but certain portions of the sea may be added to the domin-
ion. For exam])le, the sea which lies inter fauces terrw,
and, in certain exceptional cases, parts of the sea not lying
infer fauces terra\

The chiiui applies strictly to the soil under the sea. Such
claim may be legitimately made to oyster beds, pearl fish-
eries, und coral reefs; and, in the same way, mines within
the territory may be worked out under the sea below low-
water nuu'k.

Isolated portions of the high sea cannot be taken by a
nation unless the bed on which the^^rest can be physically
occupied in a manner analogous to the occupation of land.

These liriuciples, though they explain legitimately all
the examples of foreign laws dwelt on by the United States,
show also that no right to, or on, so vast an area of the high
sea as Behring Sea can be acquired, i^or has any such
claim ever been made.

V.

ABSENCE OF ANALOGY BETWEEN PROTECTION OF SWIM-
MING ANIMALS AND OF OYSTER AND CORAL BEDS.

It is further submitted that there is no analogy between
a claim to property in and to protect swimming animals,
such as fish and seals, and a like claim in respect of oyster,

pearl, or coral beds.
60 The exclusive fishery right recognized by inter-

national law within the territorial waters, or the
wateys of tbe dominion, cannot at any rate be placed
higher than the right to take possession of wild animals
which the common law gives to the owners of land on
which the animals are.

If there were any land animals which by nature were
attached to the soil, the cominon law right would be prac-
tically equivalent to a right of pro[)erty; and so as to oys-
ters and coral beds, Avhen they are within the waters over
which international law recognizes an exclusive fishery
right, this right becomes equivalent to a right of property
because they are attached to the soil.

But in aninmls which move from this area into the high
sea no such property can be acquired.

54 ARGUMENT OF GREAT BRITAIN.

VI.

NO CONSENT OF NATIONS TO PRINfTPLE OF RIGHT
CLAIMED BY UNITED STATES.

Finally, it is submitted on this branch of the United
States Argument, that there is not shown to be any con-
sent of nations to any proposition wliich would warrant
the United States claim to the right of protection or
property, now for the first time advanced.

The United States endeavour further to support their
contention by a reference to certain other extra territorial
laws not connected with tisheries which have been passed
by other nations. They state —

TJnitcd States Reference may also be made to the British Hovering Acts, the St.
Case, p. 237. Helena Act of 1815, and the Quarantine Act of 1825.

The '•'■Hovering Acts.''^

These Acts have been passed to prevent smuggling. They
establish a practice which has hitlierto been acquiesced in
both by Great Britain and the United States, but they afford
no analogy, either in fact or in principle, to the United States
claim in the present case.

In the first place, it will be observed that the Hovering
Laws do not extend the limit of territorial waters, or assert
any general claim of dominion over an area of the sea
61 beyond the ordinary 3-mile limit, such as is asserted
by the United States over the waters of Behring Sea
east of a certain line. They simply claim to exercise a
special jurisdiction over certain vessels at a comparatively
small distance outside the usual limit, in order to prevent or
punish otfences against the jurisdiction within that limit, to
which such vessels are accomplices.

And in the case of a British vessel which was seized in
1890 by a Russian cruizer, on the ground that she was seal-
fishing within Kussiaii territorial waters, Her Majesty's
Government were of oi)inion that even if the vessel at
the time of her seizure was herself outside the 3-mile terri-
torial limit, the fact that she was, by means of her boats,
carrying on fishing within Russian waters without the pre-
scribed licence precluded them from remonstrating against
the seizure.

But no such conduct has been alleged against the Brit-
ish vessels seized by the United States. They were not
hovering at sea, they were not lying to with intent to pro-
ceed to the territory, or the territorial waters of the United
States, with intent to assist others in breaking the law
there. No such grounds have ever been alleged for the
seizure of the British vessels. The claim of the United
States is to include the right to seize such vessels within
their general jurisdiction over Behring Sea, and the anal-
ogy of the Hovering Laws cannot be adduced in support
of such a claim.

Moreover, even if such analogy existed, the consent, or
acquiescence, of other nations, which exists in the case of
the ''Hovering Acts" (so long as the jurisdiction is exer-
cised within reasonable limits), is wanting to the claim of

ARGUMENT OF GREAT BRITAIN. 55

jurisdiction advanced in the present case by the United
States; and this absence of consent, or acquiescence, is
fatal to a chiini which involves the right of vsearch and
seizure on the higli sea outside territorial waters, and,
consequently, a violation or limitation of the freedom of
the sea.

" The 8t. Helena Act, 1815."

At the peace of 1815 it was determined by Great Britain,
in conjunctiou with the allied Powers, that St. Helena
should be the place allotted for the residence of the Em-
peror Napoleon Bonaparte, under such regulations as might
be uecessary for the perfect security of his person;

62 and it was resolved that, for this purpose, all ships
whatever, British and foreign, excepting only the

East India Company's ships, should be excluded from all
approach to the island. Notice was accordingiv given by American state
the British Charge d'Affaires at Washington to the United j);'!;^;''^' ^"*- ^^•
States Government on the 24th November, 1815, that a
Treaty t)f Commerce between Great Britain and the United
States, dated the 3rd July, 1815, under Article III of which
liberty of touching for refreshment at the island was given
to United States vessels, could not be carried out in this
respect; and that the ratitications of the Treaty would be
exchanged underthe explicit declaration that United States
vessels could not be allowed to touch at, or hold any com-
munication whatever with, the island, so long as it should
continue to be tlie residence of the Emperor. The Treaty
was ratified on this understanding.

The arrangement made for the general safety received
the consent, express or implied, of all nations. If any
aiuilogy can be found between that case and the one now
under discussion, it goes to show that the United States
cannot exclude other nations from the seal fishery without
a lilie consent.

« The Quarantine Act, 1825."

This Act depends u] )on the principles already adverted
to with regard to the Hovering Acts.

It is submitted that no one of these three Acts affords
any analogy or justification for a jurisdiction based merely
on protection of trade, and claimed and exercised many
hundred miles in open seas.

GENERAL CONCLUSION ON THIS BRANCH OF THE CASE.

Therefore, it is submitted that the assertion that the
practice of nations supports the United States contention
in regard to their claim to pro])erty in, and protection of,
the seals in the high sea, is witliout foundation.

If it is regarded as an assum])ti()n of jurisdiction on the

high sea, it was entirely beyond the power of the United

States Congress to [)ass an Act applying to foreign-

63 ers; for, without ac(juiescence of other nations, and
without example in the juactice of other nations, it

infringes the rights of those nations upon the high seas.

56 ARGUMENT OF GREAT BRITAIN.

If, on the other hand, it is regarded as part of a general
jurisdiction exercised by tlie United States over Beliring
Sea, it was also beyond the power of the United States
Congress to make the Act ap]dying to foreigners ; for, with-
out the consent of other nations, and without example in
the practice of other nations, it extended the territorial
waters of the United States to a limit hitherto unknown
and unrecognized, and in so doing it infringed the rights
of other nations upon the high seas.

ANSWER TO QUESTION 5.

Therefore, it is submitted that the foregoing facts and
arguments conclusively establish the answer to Question
5, raised by Article VI of the Arbitration Treaty, in favour
of Great Uritaiu, that is to say:

To Question 5. — That the United States have no light (a)
of ])rotection, or (b) of property, in the seals frequenting
the islands of the United States in Behring Sea when they
are found outside the ordinary 3-mile limit.

PART III.

REGULATIONS.

It is now desired to foriiinlate, on behalf of Great Brit-
ain, the outline of the argnnient which will be presented
in connection with the question of liegnlations. As stated
at p. 9 of the orij^iiial Case, Great Britain has throughout
been favourable to the adoption of general measures for the
control of the fur-seal fishery, provided that such measures
be equitable, and framed with due regard to the common
interest. It is, however, essential that any Eegulations
should o])erate to preserve the fur-seal industry for the
enjoyment, not of the United States alone, but of all those
who may lawfully engage in sealing. In this connection,
the attention of the Arbitrators is resi^ectfully directed to
the general considerations summarized at i). 159 of the
British Counter-Case.

Though in the United States Case (Conclusions) it is united states
maintained that Eegulations must lu'actically be such as ^*^®' p- '^^'^•

to prevent pelagic sealing everywhere, it is also
CI stated that the United States are in the position
of trustees of the sealing interest, thus involving the
idea of other rights besides those of the United States.

The United States further, in tlieir conclusions to their
Case, include in the second "Material question" to be
determined by Arbitrators :

Whether the United States and Great Britain onglit not in jnstice Ibid., p. 209.
to each other, in sound policy for the common interest of ninukiud,
&c., '"to enter into such re;isi)n!i1)le arransjjcment by concurrent re.i;u-
lations or convention, in which tlie parti(;ij)ation of other Governments
may he properly in ited," &c.

In the Counter-Case of the United States, however, a
more advanced position is taken. We read:

The United States insist, as claimed in their Case, that they have. United States
upon the facts established by the evidence, such a pro])erty and inter- Con nter-Cuse,
est in the seal herd frequenting the Lslauds of the United Stales in P- ^"^*
Bering Sea, and in the industry there maintained arising out of it, as
entitles them to protection and to be protected by the Award of this
Tribunal ajjainut all pelacjic staling, uhich is the subject of eontroversj/ in
this Case, and (pute irrespective of any right of property or of self-
defence in respect of their territorial interests, they claim to have
clearly shown that no regulations short of prohibition will be sufficient
to prevent the early destruction of the Alaskan seal herd.

Before considering the scope of the Eegulations, the united states
question as to the area of waters over whicii they should ^'"''"'Pp-^"^"^"^-
extend requires notice. It ai)pears from certain ))assages
in the United States Case and Counter-Case, that it will

57

68 ARGUMENT OF GREAT BRITAIN.

be contended on behalf of the United States that the
Keguhitions should amount to a ])iactical prohibitiou of
pelagic sealing in all waters to which seals from the Friby-
lofif Islands resort, and should eflectually prohibit and
^Countor-Case, pj.gygj,j^ |^jjg capturc, anywhere upon the high seas, of any
seals from tlie Pribyloff Islands.

It is submitted that any such contention is entirely
beyond any claim ever advanced by the United States at
any stage of the controversy prior to the delivery of their
Case, and is contrary to the agreement of the parties which
was embodied in the Treaty. That Treaty deals, and deals
only, with "questions which have arisen" between the two
Governments, In no part of the discussion was it sug-
gested that the rights of the United States to limit the

killing of seals extended beyoud Behring Sea. Ou
65 the contrary, when the British Government desired

the assent of Russia to the modus vivendi proposed
TT •* J ow iu the month of June 1891, it was pointed out by Mr.

United states . ,,joi.tt t-T ,■ l liiji

Case, Appendix, Whartou, lu a despatcii to Sir Julian Faunceiote, dated the
vol. i, p. -MG. ^^]^ Qf ^^Q^^ month, that the contention between the United
States and Great Britain was limited to that part of Beh-
ring Sea eastward of the line of demarcation described in
the Conveution with Russia of the 30th March, 1807; that
Russia had never asserted any rights in the waters affect-
ing the subject matter of the contention, and could not,
therefore, be a necessary party to the negotiations if they
were not expanded; and further, that the authority of the
President was derived from the Statute of the United
States, and that no authority was conferred upon him to
prohibit or make penal the taking of seals in the waters of
Behring Sea westward of the line referred to.

It is scarcely necessary to point out that such Janguage
not only depends for its force upon an assumed jurisdiction
over an area of sea, but is wholly inconsistent with the con-
tention that pelagic sealing in the i)arts of the Pacific
Ocean outside Behring Sea, or in those parts of Behring
Sea west of the line of demarcation, was the subject of
controversy between the parties.
Ibid., p. 315. Further, on the 11th June, 1891, Mr. Wharton, in his
letter to Sir J. Pauncefote, stated that the Government of
the United States, recognizing the tact that full and ade-
quate measures for tlie protection of seal life slionld
embrace the whole of Behring Sea and i)ortions of the iSTorth
Pacific Ocean, would have no hesitancy in agreeing, in con-
nection with Her Majesty's Gov^ernment, to the ai)point-
ment of a Joint Commission to ascertain what permanent
measures were necessary for the preservation of the seal
species in the waters referred to, such an agreement to be
signed simultaneously with the Convention for arbitration,
and to be without prejudice to the (luestions to be submitted to
the Arbitrators.

Later, viz., on the 8th March, 1892, Mr. Wharton wrote
to Sir J. Pauncefote:

Ibid., p. 356. The United States claims an exclusive right to take seals in a por-
tion of the Beliring Sea, while Her Majesty's Governnieut claims a
common right to pursue and take the seals in those waters outside a
3-mile limit. This serious and i)rotracted controversy, it has now been

ARGUMENT OF GREAT BRITAIN. 69

happily agreed, shall be submitted to the determination of a

66 tribuTial of arbitration, and the treaty only awaits the action
of the American Senate. . . . If the contention of this Ciov-

ernment is sustained by the Arbitrators, then any killing of seals by

the Canadian sealers during this season in these waters is an injury j o* ♦

to this Government in its jurisdiction and property. . . . '^'1'® Case Ippeudix^

United States canno^t be expected to suspend the defence, by suchyyl'. j'^ p. 359. '

means as are within its power, of the property and jurisdictional

rights claimed by it, pending the arbitration.

And ou tlie 22u(i March, 1892, lie again writes:

For it must not be forgotten, that if Her Majesty's Government pro- Ibi(l.,p. 3Cl.
ceeds during this sealing season upon the basis of its contention as to
the rights of the Canadian seah^rs, no choice is left to this Govern-
ment but to proceed u])on the basis of its confident contention, that
pehifjic sealing in the Behring Sea is an infraction of its jurisdiction and
property rights.

There is no known method whereby the seals resorting to
Bebriug Sea may be distinguished, at any rate before cap-
ture. Upon no construction of the Treaty could it be pre-
tended tbat the Tribunal of Arbitration is empowered to
regulate the pursuit of seals generally. To prohibit the
pursuit of certain specified fur-seals outside of Behring Sea,
or to make Regulations concerning them, Avould be imprac-
ticable, and it is submitted would be beyond the authority
given to this Tribunal.

Passing from the question of the area of waters over
which the proposed Regulations should extend, and assum-
ing the Regulations to apply to the whole, or some part of,
the non-territorial waters of Behring Sea, the contention of
tbe United States, so far as it can be gathered from their
Case, is that pelagic sealing must be entirely prohibited.

It is submitted that any decision of tlie Tribunal prohib-
iting pelagic sealing would be contrary to the terms of the
Treaty.

Article VII contemplated the establishment of Regula-
tions as applicable to the pursuit of seals outside territo-
rial waters; and the prohibition of pelagic sealing is not
authorized.

To contend that pelagic sealing should be entirely pro-
hibited would be, under cover of so-called Regulations, to
defeat the manifest intention of the parties.

The following argument is, therefore, based upon the

view that the Regulations should be such as should be fair,

both to the United States as owners of the Pribylotf

67 Islands, and to Great Britain as representing those
who desire to engage in the lawful indnstry of i)e-

lagic sealing, but who at the same time are willing to be
bound by such Regulations as are necessary for i)roper
protection and preservation of the fur-seal in, or habitually
resorting to, Behring Sea.

Furthermore, it is essential that the Regulations should
be such as would be likely to secure the adhesion of other
Powers, and would not operate as an inducement to them
to withhold their consent with the knowledge that by so
doing they would secure to themselves greater advantages
from the industry in question.

60 ARGUMENT OF GREAT BRITAIN.

As appears from the BritisU Counter-Case, and from the
Eeport of the British Commissioners, the main provisions
which might be properly embraced by liegulations are the
maintenance of a zone of protected waters round the breed-
ing-islands, the establishment of a close season, and restric-
tion as to tlie date in each year when sealing- vessels sliould
enter Behring Sea.

Having- regard to the fact that each of these proposals,
when taken separately, is treated in the United States Case
and Counter-Case as being of no value, and that the pro-
posals collectively appear to be considered as wholly insuffi-
cient, the way in whicii the question has been dealt with by
tlje United States in the correspondence prior to the Treaty
of Arbitration is worthy of consideration.

Uj) to the month of December 1890, suggestions of a more
or less g'eneral character appear from time to time in the
correspondence to the effect that international Kegulatious
should be established through the medium of a Conven-
tion, to which all nations interested should be parties.
These suggestions led to no definite agreement, and were
succeeded by a proposal contained in the following passage
from a note of Mr. Blaine to Sir Julian Pauncefote, under
date the 17th December, 1890 :

TJnitefl States The President will ask the Govei'iiment of Great Britain to agree to
Case, Appeiulix, ^jj^ distance of 20 marine leagnes within which no ship shall hover
^ ■ ■ round thi' islands of St. Paul and 8t. (iieori;e Ironi the 15th May to the

15th October of each year. This will prove an elective mode of pre-
serving- the seal fisheries for the use of the civilized world.

And in the same despatch there was formulated a
68 question, in the following words, on which the Vllth
Article of the Treaty of Arbitration was founded :

United States Sixth. If the determination of the foregoing questions shall leave
voLLp 28(f" ''^' ^^'® subject in such position that the concurrence of Great Britain is
necessary in ]»rescriijing regulations for the killing of the fur-seal in
any part of the waters of Behring Sea, then it shall be further deter-
mined : First, how far, if at all, outside the oidinary territorial limits
it is necessary that the United States .should exercise an exclusive
jurisdi(dion in order to protect the seal for the time living upon the
islands of the United States, and feeding therefrom. Second, whether
a closed season (during which the killing of seals in the waters of
Behring Sea outside the ordinary territorial limits shall be prohibited)
is necessary to save the seal-tishiug industry, so valuable and impor-
tant to mankind, from deterioration or destruction. And, if so, third,
what months or ])arts of months should be included in such season,
and over what waters it should extend.

To this proposal of Mr. Blaine's Lord Salisbury replied
in his des])atch of the 21st February, 1891, in which, deal-
ing with the sixth question, he observed:

Ibid., p. 2D-1. The sixth question, which deals with the issues that will arise in

case the controversy should be decided in favour of Great Britain,
would perhaps more fitly form the substance of a separate reference.
Her M.ajesty's Government have no objection to refer the general
question of a close time to arbitration, or to ascertain by that means
how far the enactment of such a provision is necessary for the preser-
vation of the seal species; but any such reference ought not to con-
tain words ajipearing to attribute special and abnormal rights in the
mattcu- to the United States.

Ibid., p. 319. Finally, in deferen(;e to the objection thus taken by Lord
Salisbury, Mr. Wharton, in a letter of the 25th June, 1892,
to Sir Julian Pauncefote, proposed what now forms Article
Vll of the Treaty.

ARGIBIENT OF GREAT BRITAIN. 61

It is therefore to be noted that the original proposition,
emanatiug from the President of the United States, viz.,
that the establisliment of a protective zone, within wliich
the killing- of seals shonld be prohibited between certiiin
specified dates, was snggested as being an effective mode
of preserving the seal fisheries for the nse of the civilized
world, and it is contended, on belialf of the British Gov-
ernment, that farther investigation and examination of the
facts fully justify the view that Eegulations of this char-
acter, but establishing a zone of smaller area, would suffice
so far as pelagic sealing is concerned.

69 Even assuming a point which is open to consider-
able doubt, viz., that some of the seals still suckling

their young travel to parts of Beluing Sea at considera-
ble distances from the Pribyloif Islands, by far the greater
majority, if not the whole, of such female seals will be
found within a zone of more moderate area.

It is established that the seals, whatever may be the
cause of their leaving the islands, do not habitually or
regularly go in searcli of food. Food, am])le for their
wants, is to be found in the vicinity of the islands, but all
the best information j)oiuts to the fact that they do not feed
during the main period of their sojourn on land. In addi-
tion, the prohibition of the killing of seals during July
and August, within the protected zone, would insure that
the vast majority, if not all, of the female seals actually
suckling their young, w^ould be free from capture by
pelagic sealing during such time as the pups are depend-
ent upon them.

It is unnecessary to discuss in detail the minor Regula-
tions which have been suggested as to the means of pelagic
capture, and as to the due authentication of all licensed
sealing vessels. These are matters on which lengthened
argument would be out of place here.

It is, however, obvious that the adoption of such Regu-
lations, and the enforcement of legislation in order to ren-
der them e^tfective, does involve the curtailment of rights
which, upon the hypothesis which forms the basis of this
argument, now belong to other nationals, including British
subjects.

The object of any Regulations is the proper protection
and preservation of the fur-seal in, or habitually resorting
to Behring Sea. It would be unjust that other nations
should be asked to enforce by legislation this curtailment
of the rights of their nationals, without some corresponding
concession on the part of the United States, as owners of
the islands and the territorial waters thereof.

That during a great portion of the year the seals are feed-
ing upon fish Avhich are valuable for the food of man ni)on
the coasts of the territory of Great Britain, and other na-
tions, cannot be denied.

That during other portions of the year they are

70 consuming fish that are swimming in the high seas,
in which all nations have an interest, is conceded.

62 ARGUMENT OF GREAT BRITAIN.

It would not be equitable that restrictions upon the rights
of other nations should be demanded solely for the purpose
of enhancing the benefit to be derived by the United iStates
from their possession of the islands. The least that can be
suggested is that, concurrently with the establishment of
such Regulations as are applicable to pelagic sealing, and
in order to induce other nations, who are not parties to this
Arbitration, to concur in, and give effect to, any Regula-
tions, a reasonable limit to the slaughter of seals on the
breeding-islands and proper provisions for its conduct should
be made by the United States.

The Regulations for the islands which the United States
may be willing to make must, it is submitted, have an impor-
tant effect upon the judgment of the Arbitrators as to what
pelagic Regulations would be reasonable or necessary, and
it is further submitted that it is within the competence of
this Tribunal to make the latter Regulations dependent or
conditional on the former.

To apply restrictions to pelagic sealing, without effective
and concurrent Regulations being enforced on the breeding
haunts, would be as unreasonable and useless as the insti-
tution of restrictions over a coastal or estuary salmon fish-
ery, while the salmon on the si)awning-beds of the river
were being taken without let or hindrance.

It is contended on behalf of the United States that the
management of the islands in the jiast had been properly
controlled and conducted with due regard to the protection
of seal life. Her Majesty's Government are unable to con-
cur in that view. For reasons that have been stated at
length in the Counter-Gase, in reply to the contentions in
the United States Gase, it is submitted that the excessive
killing of seals on theislands during a long series of years
has contributed largely to, and has been in all probability
the main cause of diminution in numbers. Be this as it
may, in view of the experience of the past, the number of
seals to be killed in each year ui^on the Pribyloff Islands
ought to be limited, and the methods jjursued there con-
trolled, in accordance with the actual condition of seal life,
and subject to periodical review by independent Govern-
ment Agents.
71 Finally, it is submitted for the consideration of

the Tribunal that the imperfect knowledge even now
possessed as to the habits and conditions of seal life in
many essential particulars makes it important to consider
how far it is safe to lay down Regulations unlimited in
duration until wider experience of their operation has been
acquired.

PART IV.
DAMAGES AND COMPENSATION.

1. British Claim for Damages.

There remain for consideration tlie questions of fact Artioie vm,
which are involved in the cliunis made by the owners of /i.',,7iuu.°' ^''^^'
British vessels for injuries sustained by the seizure of their
vessels, ami by such vessels beinjj ])revented by the action
of the United States cruizers fi<un (-nyaging in pelajiic
sealing ill Behring Sea. The British Goveinntent agree
with the Government of the United States that, as far as
damages are concerned, no question of amount is to be dis-
cussed before the Tribunal of Arbitration, ami that only
questions of fact involved in the claim are proper for con-
sideration. It is admitted in the Counter-Case on behalf uritfri states
of the United States that the seizures and acts of iuterfer- CountferCase, p.
ence comjilained of took place outside the ordinary terri-
torial waters of the United States, that is to say, outside
the 3-mile limit; and, further, that the acts of seizure and ibij., p. 130.
interference were authorized and executed under and by
the authority of the United States Government, for the pur-
pose of enforcing certain laws passed by the United States.

Under these circumstances, assuming, as is necessary for
the purpose of the question now under discussion, that the
claim on behalf of the Government of the United States
to interfere with the ships of other nations fishing in the
non-territorial waters of Behring iSea is unfounded, the
responsible Governn>eut of the United States have by
force prevented the vessels in question, and their owners,
masters, and crew, from engaging in a lawful occupation

and industry.
72 The contention put forward at p. 133 of the United

States Counter-Case is, that all the items of claim
there referred to, that is, "Loss of estimated Catch,"
"Probable Catch," "Balance of probable Catch," "Bea-
sonable Earnings for the months of October, November,
and December," and "Loss of Profits," are in the nature
of prospective profits or speculative damages, and are so
uncertain as to form no legal or equitable basis for finding
facts upon which damages can be predicated.

This view of the law has been rejected by the English 5C.p.d.280.
Courts. In Phillips v. the London and South-Western
Eailway Company, where an eminent nuHlical practitioner
who had been injured by the negligence of a Bailway Com-

63

64 ARGUMENT OF GREAT BRITAIN.

pnnywas awarded 10,000/. damn. cjes, the Court of Appeal
held tliat the jury had beeu rightly directed to take into
account the loss of his professional income of 5,000/. a-year.
51^ ^^^' And in the "Argentine," the House of Lords held that in
awarding damages to a ship which had come in collision
with another, tlie fact that the ship could not be repaired
in time to fultil a contract for anotlier voyage, and had lost
earnings in consequence, liad been properly taken into
account. Lord Herschell said:

The loss of the use of a vessel and of the earnings which wonld
ordinarily he derived from its use during the time it is under rei):tir,
and therefore uot available for trading ])urposes, is certainly damage
"which directly and naturally flows from a collision.

He then proceeded to explain, what it is not necessary
here to consider, that the damages were not limited to the
time of actual non repaii-, but that account might be taken
of the loss of a voyage previously contracted for, setting
oft" against such loss what the ship could have earned by
other means, after completion of the repairs, during the
time which such voyage would have occupied.

After due regard has been paid to all considerations,
such as the nature of the season, the size and e(pupment
of the vessels, and the amount of the catch in previous
seasons, an estimate can be formed of the probable catch
of each vessel during the season in which their operations
were prevented or interfered with.

The loss of catch is due directly to the action of
73 the United States Government, and the fact that
the earnings or profits were prospective in no way
affects the right of the claimants to recover.

The refusal of the Geneva Arbitrators to award damages
to the United States for the loss of "prospective earnings "
must be understood with reference to the actual conditions
of the case before them. The shi])s in respect of which the
claim was made had been destroyed. Chief Justice Cock-
burn, who here was in agreement with the rest of the
Tribunal, says in his reasons :

"North Amer- According to the decisions of the Supreme Court of the United
ica \o. 2 (187;!)," States, the only allowance which ought to be made in respect of pro-
Part n, p. 2a3. specti ve catch is in the nature of interest from the time of the destruc-
tion of the vessel.

The distinction is between prospective earnings from a
ship destroyed, and tem])orary interruption in the employ-
ment of an existing ship.

With regard to the allegations which are brought for-
ward at pp. 130 to 133 of the United States Counter-Case,
that is to say, that certain citizens of the United States
were interested, as mortgagees or otherwise, in some of the
vessels in question. Her Majesty's Government do not
admit either the truth of the allegations, or that they are
proper for consideration.

By 17 & 18 Vict., cap. 104, sec. 70, it is enacted as fol-
lows :

A mortgagee shall not by reason of his mortgage he deemed to he
the owner of a ship or any share therein, nor shall the mortgagee be
deemed to have ceased to be owner of such mortgaged ship or share,
except in so far as may he necessary for making such ship or share
available as a security for the mortgage debt.

ARGUMENT OF GREAT BRITAIN. 65

The Tribunal will be asked to find tliat the several heads
or items of damage claimed are corr6ct; saving all questions
of amount and liability.

2. British Claim for Compensation.

By Article V of the modus nivendi of 1892 it is expressly

agreed that, if the result of the arbitration shall be to

affirm the right of British sealers to take seals in Beh-

ring Sea within the bounds claimed by the United States,

under its purchase from Kussia, then compensation

74 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 arbitra-
tion, upon the basis of such 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.
The Article further provides that the amount awarded shall
be just and equitable, and shall be promptly paid.

Great Britain is entitled, under this Article, to the award
of a just and equitable sum by way of compensation, to be
ascertained by the Arbitrators on the above basis.

3. United States Claim for Damages.

In the event of its being decided that British sealers
have no right to take seals within the waters of Behring
Sea, it will be contended by Her Majesty's Government
that the basis upon which the amount of the United States
claims is assessed in the Case of the United States is
untenable.

The whole of what is called in the United States Case ^°itefi states
"the claim of the Government," as distinguished from "the ''^^' ^'
claim of the lessees," is founded on the prohibition of seal-
ing on the islands imposed under the modus vivendi of 1891.
But no claim can be made in respect of the consequences
of fulfilling a contract voluntarily entered into, unless by
reason of some contract provision, such as is contained in
the modus vivendi of 1892, but not in that of 1891. Her aisl'voi. ifp^. m
Majesty's Government made it a condition of renewing the
modus vivendi in 1892, that "the Arbitrators should, in
the event of a decision adverse to the United States, assess
the damages which the prohibition of sealing" should have
caused. No such stipulation had been made by either
Government in 1891.

4. United States Claim for Compensation.

By Article V of the modus vivendi of 1892, if the result
of the arbitration should be to deny tlie right of British
sealers to take seals within the specified waters, then com-
pensation shall be made by Great Britain to the United
States (for itself, its citizens, and lessees) for the

75 Agreement to limit the island catch to 7,500 a season,
ui)on 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."

B S, PT X 5

QQ ARGUMENT OF GREAT BRITAIN.

In fixing the "larger catch" mentioned in this Article,
the following facts reqnire consideration :
British Case, The modus vivendi of 1891 was originally assented to by
^il'^No'!'!! 1891, Great Britain becanse it was asserted on the part of the
pp. 1, 3. United States that the diminntion of seals had become so

great as to require some such immediate and drastic pro-
vision to i")revent extermination.
senute, sist Duiiug the Sealing season of 1890, on the Pribyloff
E™ Doc? No'^'io; Islands, Mr. Goff", the Government Agent, stopped the
pp. 11, 12. killing of seals when only 21,857 had been killed, alleging

that this was absolutely necessary because of the paucity
Ibid., p. 13. of seals of suitable age for killing. The agent of the North
American Commercial Company thereupon lodged a protest
against the curtailment of the Company's privilege of
killing.
Ibid., pp. 6 and In reporting on the sealing season of 1890, Mr. Goff, the
^' Government Agent on the islands, and Mr. Lavender,

Assistant Agent, both advised the cessation of all killing
British Case, for skius upou the islauds for several years. Mr. Elliott,
iii^^^^'ifiiitedin liis letter to Secretary Windom, summarizing and trans-
?.'cm''>^.. '^^' ,1' mitting a detailed Keport made in pursuance of a Special

(1891), PP- 17, » „ \ II.- 4. J.1

21,60. Act 01 Congress, mnkes a recommendation to the same

effect, placing the period of abstention from killing at seven
years at least.
fofitoMr^BMne "^'^^ rcsult of the investigation of seal life made by the
Feinuar.v29,\892'. British Commissiouers in 1891 was, however, such as to
SaH^sbnry 'to Sir ^ouvince Her Majcsty's Government that the very stringent
J. Pauncefote, mcasures of the modus vivendi of 1891 need not, in the
March 18, 1892. j^j^e^.^g^g ^f ^he Sealing industries, be repeated in 1892.

British Case, Consequently, when a new modus vivendi was pressed for
iiif''*"" unTtedby the United States, it was proposed by Her Majesty's
089^?" vv' 155 Government that a zone of protection, not exceeding 30
aid 159. ' miles, should be extended about the Pribyloff Islands, while
fot'etoMr^BMne, tli^ killing upou these islands should be restricted to a
rebruary29,i892'. ma.rfwmm numbcr of 30,000.

British Case. The United States, however, promptly and decisively

Appendix^ iYe d pronouuccd this proposal for a modus vivendi in 1892, to be,

states No. 3 from their point of view, "so obviously inadequate,

' ^' ■ 76 and so impossible of execution, that this Government

cannot entertain it."

Acting Score- The British Government eventually consented to the

wy wharton^t^o establishment of a new modus vivendi, generally similar to

iote, March 8, that of 1891, but with the condition as to compensation

^^^^' above mentioned.

It is submitted that, in fixing the dimensions of the catch

which might have been made upon the Pribyloff Islands,

for the purposes of compensation, the United States cannot

united States uow rely, as they seek to do, on the data which they explic-

case, p. 291. j^^i^ coutradictcd in the spring of 1892.

77 APPENDIX TO ARGUMENT.

No. 1.

Criticism of Part Second of the Counter- Case of the United
States, ivhich is entitled, " Reply of the United States to
that portion of the Case of Great Britain contained in the
Report of the British Commissioners."

It is observed with regret, that throughout the second
portion of the Counter-Case of the United States, reflec-
tions on the impartiality, comi)etence, and even on the hon-
esty of the British Commissioners are repeatedly made.
It is, for instance, many times asserted that the British
Commissioners endeavour to support various preconceived
opinions or "positions" by evidence selected for the pur-
pose. But a reference to the Commissioners' Eeport will
show that no such course was adopted, and that various
points upon which the available evidence was found to be
inconclusive have been so characterized by them.

It is only necessary to draw attention to the fact, that at
a (late as late as November 1890, the Canadian Govern-
ment, relying- on evidence contained in official Keports of
the United States Government, denied any decrease in the
seals met with upon the Pribyloff Islands; while one of
the main conclusions of the Commissioners proved to be in
direct opposition to this contention, and was to the effect
that a nearly continuous decrease had occurred during the
entire period of the control of these islands by the United
States.

There is surely nothing remarkable in the circumstance
that some of the conclusions arrived at by the British Com-
missioners should agree with previously advanced con-
tentions of the British and Canadian Governments. It
might, on the other hand, be ciiaracterized as remarkable,
that for the purposes of the present submission to
78 arbitration the United States Government have dis-
carded their own previous official Keports, and have
substituted a number of statements and aflidavits procured
after the conclusion of the Treaty, upon which to base
their contention; the evidence contained in latter being
often at variance with the previous and contemporaneous
Reports thus discarded. Though a special Act of Congress ^^^^* u'lti^ixf
was passed to authorize an investigation of the sealing "'^*^^"
industry on the Pribyloff" Islands in 1890, and such investi-
gation was carried out, it is at least worthy of note that the
Report detailing the result of this investigation has not

67

68 ARGUMENT OF GREAT BRITAIN.

been employed in connection with the Case or Counter-
Case of the United States; that tliis Eeport has not been
published by that Goveruinent; and that the United States
have even refused to furnish this Keport to the Agent for
Great Britain, who had formally applied for it.

It is thus apparent, not only that the United States (as
elsewliere shown) have gradually changed their position
in reg;ird to rights in Behring Sea, but that they have
now almost entirely ignored the previous Reports and
assertions of their own official Kepresentatives in respect
to the facts bearing upon seal life and its conditions.

Without attaching undue importance to the attack
made in the Counter-Case of the United States upon the
integrity of the British Commissioners, it :»3 proposed to
show, in this Appendix, that, without important exception,
the conclusions arrived at by the British Commissioners,
during their investigations in 1891, stand unaffected by
the arguments directed against them in the Counter-Case
of the United States; that these arguments, both in fact
and form, are unfounded and erroneous; and that, gener-
ally, the Conclusions of the Commissioners have been sub-
stantiated by further inquiries and investigations conducted
in 1802.

The subjoined notes take the form of brief critical state-
ments directed to the various assertions made in the part of
the Counter-Case of the the United States to which it
relates, and follow the arrangement and order in which
these assertions are presented in it.

79 [The marginal refereiio°a to pages, uuless otberwise specially designated, are
throughout to the pages of the United States Counter-Case.]

"First."

"Matters in relation to which the Eeport and
THE Case of the United States materially con-
flict, AND concerning WHICH PROPOSITIONS OR

Facts are alleged in the Report which have
not been considered in the Case of the United
States."

"Habits of the Fur seals."

"1. Distribution of Seals in Behring Sea and the suggested
Intermingling of the Pribylo/f and Commander Seal
Herds.^'

Pages 48, 49. This chapter commences by quoting and alluding to cer-
tain passages from the British Commissioners' Report,
which convey only one side of the discussion of facts of
which they form a part. The general conclusion reached
by the British Commissioners as the result of the whole
discussion are not quoted.

Pages 49, 50. The Maps relating to the distribution of seals (particu-
larly Nos. 3 and 4), presented by the British Commissioners,
are then noticed by the United States, and it is contended

ARGUMENT OF GREAT BRITAIN. 69

that they are incorrect and not justified by the evidence
adduced in support of them, particularly in the matter of
the general distribution of seals in Behring Sea during the
summer months.

It is stated by the United States that the Maps must
have been based chiefly ujjou the logs of the various men-
of-war, that the information contained in these logs is
insufficient to bear out the indications of the Maps, and
that, as other evidence relied upon by the British Commis-
sioners is not particularly specified or detailed, it " should
have no influence on the Tribunal."

It is then assumed that the only data were those derived Paces 50, 51.
from the logs of cruizers, and those of the British cruizers
are reproduced in the form of Charts appended to the
United States Counter-Case, together with the tracks of
United States cruizers in 1892.

In reply to these contentions, it may be stated that the
distribution of seals in Behring Sea in 1891, as shown on
the British Commissioners' Maps, in so far as it relates to
the part of Behring Sea surrounding the Pribyloft'
Islands, depended chiefly upon the logs of the several
80 cruizers, but an inspection of the tracks, as printed
by the United States, will show that the cruizers in
most cases confined their operations to the regions sur-
rounding the Pribyloflf Islands.

For other parts of the sea, other sources of informa-
tion had to be employed. The British Commissioners refer
to those other sources (including their own voyages) in a
general way. The details and the names of informants were
not specifically given, merely in order to curtail the length
of their Eeport. The procedure followed in this case seo;9os<,p.]06.
resembled that adopted in most other cases by both the
British and United States Commissioners.

Information obtained in 1892, and set forth in detail in British conn-
the British Counter-Case, however, not only fully confirms 540;^andAppen~
the statements made by the British Commissioners as to .!]'^O'0i- "- pp-
the intermingling of fur-seals in Behring Sea, and as to"" ''
their distribution in that sea ; but are also such as to sup-
Ijly to the United States the precise data which they appear
to require.

"2. The alleged 'promiscuous nursing of Pups by Female

Seals."

On this subject, the United States deny that certain evi- Page 53.
deuce, tending to show that female seals nurse other pups
than their own, is " sufficient to establish the facts alleged."
But the British Commissioners in their Eeport make no
definite allegation in this connection. The actual evidence
on both sides is given by the Commissioners, and is dis-
cussed by them.

It is next stated, that though Messrs. Elliott and Bryant
are "the two most prominent authorities relied on" in the
British Commissioners' Report, the opinions of these observ-
ers are not accepted on the question here under discussion.

Bryant and Elliott are often quoted as authorities, because
their observations are those which enter most fully into

70 ARGUMENT OF GREAT BRITAIN.

subjects connected with seal life, and have been fully ])u])-

?5"J^^«^^.^p^^'j^lislied in United States oflicial IJeports. AY here actual

po\*t "paras. 321^0 /as tT?v?//<ms aiB stated, doubt is seldom, if ever, cast on

"*2'-- them 5 but when deductions are drawn from observations,

it is quite fair to criticize these, even where the

Page 53. 81 obscrver may be perfectly unprejudiced. The data

quoted by Bryant and Elliott on the question of the

suclcling of pups, leave their conclusion evidently in the

position of a not proven deduction or theory.

The further com])laint in the United States Counter-
Case, that the British Commissioners quote Elliott as to
the want of affection of female seals for their young, while
they do not quote reiiuirks contained in a publication by
Sir F. McCoy, is pointless. Tlie British Commissioners
(luote Elliott, because his ol)servations agree with those
made by themselves on the Pribyloff Islands. They state
as much.
Page 55. In the British Commissioners' Rp])ort, Mr. C. H. Jackson,

Government Agent in charge of the Seal and Guano Islands
of Cape Colony, is quoted as making a detinite assertion, to
the effect that in that region —

the cow [seal] will suckle auy of the young seals, whether her own or
not.

Mr. Jackson is consequently designated in the United
States Counter-Case as a "questionable authority," and it
is added that —

an examination of the Re])ort of this gentleman fails to reveal upon
wliat knowledge he bases such a statement; and there is no proof that
he has ever seen the seal islands of Cape Colony, or even been informed
by experienced individuals respecting the habits of the fur-seals found
there.

It is tlien insisted that his evidence is unworthy of con-
sideration. Mr. Jackson, however, actually says in his
Eeport :

British Com- I have availed myself of information kindly furnished by the best
niiss:oiic'r8' lie- piactical experts in the Colon v.
poit, Appendix, ' '-

^^'pagcs5G,57. All attempt is here made in the United States Counter-
Case, to show that the British Commissioners attributed a
statement on the sauje subject to Sir F. McCoy, which was
^^"■I'"^,'. ''^ V'l ' ^^^^^ made by him. A reference to the Report will show that
pm^^.para^32i." the British Commissioners merely allude to the statement
and cite a work by Sir F. McCoy, in which it is contained.
It is not implied that the statement was made by Sir F.
McCoy personally, but the fact that he included it in his
work may probably be assumed as showing that he believed
in its inherent credibility.
rrfgooG. 82 It is also asserted, in concluding this subject, that

the position taken by the United States, i. e., that a
female seal will suckle no pup but her own, is supported
by "ample evidence." This evidence is referred to in a
foot-note.
cYi'ill't'' ^c>^.^^ ^^' ^^rebnitsky is among the authorities thus quoted,
Appei'idixlp/m but the remark made by him is only incidental, and he
advances no proof. So also with the evidence in the
Appendix to the United States Case which is here referred

ARGUMENT OF GREAT BRITAIN. 71

to. This consists eitlier of mere assertion, or, wlien proof
is endeavonred to be advanced, it is quite inconclusive in
character.

Observations in 1892 show that young seals do at least British conn-
occasionally obtain milk from other mothers than their own. dix, voi.'i, pa43-

"3. Period at toJiich the Female Seals go into the Water. ^^

In regard to this subject, as in the case of the last, it ^'^s**^ ^7,58.
will be found that the Eeport of the British Commissioners
makes no definite " assertion," though it is represented as
so doing in the Counter-Case of the United States; wliere
it is also stated that the lieport "practically adopts the
opinion of Siiegiloft", the native foreman on the Kiissian
Islands," though this is likewise not apparent in the Eeport
itself. In the Eeport it will, in fact, be found that all the
evidence available, together with the personal observations
of the Commissioners, has been collected and discussed
impartially.

The general conclusion arrived at by the British Com-
missioners is to the effect that the female seals remain some
time on land after giving birth; that when they begin to
return to the sea they do not at once resume their feo<ling
habits, but resort to the waters close to the shores, and that
probably about the middle of September, they may again
begin to spend a considerable portion of their time at sea
in search of food.

It is because these conclusions, and the evidence support-
ing them, are found to be adverse to a new position since
taken in the Case of the United States, that it appears to
be considered necessary to commit the British Commis-
sioners to some "'assertion" which may effectively be

attacked.
83 The evidence obtained from the natives of the poJ p^joe ^^'

Pribyloff and Commander Islands is rejected by the
United States because the names of the Commissioners'
informants are not detailed, a point dealt with elsewhere.

Information regarding the feeding habits of sealsobtained „,ii'siuneTs'^°Ke'
from Her Majesty's Minister at Tokiois rejected, and stated port,_ AppemUx,
to be "based on no actual knowledge," though he specially ^'' ^''''
states that the notes prepared by him were "based on an
experienced authority."

The published statements of Capt. Bryant as to the P"ses58, 69,
period during which the females remain on shore after giv-
ing birth are next attacked, and it is endeavoured to show
that discrepancies occur in his Eeport; while the fact that
the same author (a Government ofhcial) does not repeat the
statement of the actual period during which the females
remain ashore after giving birth, in a later communication
addressed to Professor Allen, is said to show that —

Captain Bryant had publicly discarded the opinion used by the Com-
missioners to maintain their jyosition.

And, as evidence of this, references are given to two state-
ments made to Professor Allen, in neither of which does
Captain Bryant say anything at variance with what is

72 ARGUMENT OF GREAT BRITAIN.

quoted by the British Commissioners. He does, indeed,
state that —

•'Monograph the females, after giving birth to their young, temporarily repair
of ^^ortb Anicri- again to the water.
call Piunipeds, "

p. 386. B^it; not fQY the purpose of feeding, for in the same para-

graph he says that, after impregnation —

she lies either sleeping near her yoiing, or spends her time floating or
playing in the water near the shore, returning occasionally to suckle
her pup.

In the statement next referred to, only a part of what
Captain Bryant wrote is quoted. He begins the sentence,
thus partially given, by saying —

njid., p. 382. ^g y„,j ijave had the result of my first season's observations there
[see Bull. Mus. Comp. Zool., vol. ii, 1870, pp. 89-108], I need not be so
diffuse in my descriptions as wuuld be otherwise necessary, and you
will understand, &c.

And it is from the Eejiort thus referred to that the Com-
missioners quote.
Pages 58, 59. g^ It will be remembered that certain recent affida-

cia^e," AtpcntUx*! vits made by Captain Bryant in 1892 are prominently

vol. ii, p. 3. advanced as evidence by the United States.
coiinte^-Ca'Ve! HavJug, iu thc manner above outlined, treated the evi-
Appendix.p. 413. f|ence, observations, and general conclusions of the British
Commissioners on this subject, the United States Counter-
Case concludes the discussion by the following unwarranted
statement:

One nntive of the Commander Islands is, therefore, the sole authority
for the statement of the British Commissioners.

The method of treatment thus adopted on the part of the
United States, for the inirjiose of combating a reasoned
discussion on natural facts, is resorted to in many other
instances in their Counter Ca.se. But it is impossible to
treat all these in any detail here. The attention of the
Arbitrators is therefore respectfully called to a comparison
of ))aras. 303-316 of the British Commissioners' Beport,
with their criticism as contained on pp. 57-(iO of the Coun-
ter-Case of the United States.
Post, p. 125. In conclusion, the United States refer to evidence

obtained iu 1892 by Mr. C. H. Townsend, which is else-
where discussed, and to observations of Mr. Stanley-
Brown. It may here be mentioned, however, that Mr.
Towusend's observations as to the condition of the rooker-
ies iu regard to the number of females ashore at a certain
date in 1892, does not show that the observations of the
British Commissioners at the same date in 1891 were erro-
neous. Neither is Mr. Stanley-Brown's statement, that the
females stay on land fourteen to seventeen days after the
birth of the young, in conflict with any statement made
British Com- by the British Commissioners; but the assumijtion must
pJrt,'pTra8.3()G^"ot bc made that when the females begin to seek the
308,309,313. ' water this is equivalent to their going to sea in search of
food.

*'4. Aquatic Coition.^'

Pages, 60, 61. Evidcncc quoted by the British Commissioners from
published Reports of the United States, on the authority

ARGUMENT OF GREAT BRITAIN. 73

of Captain Bryant and Dr. W, H. Dall, on tlie subjecfc of
aquatic coition, are next combated by drawing attention p^^^^ggg^
to depositions made in 1802, in which these witnesses "^°^ '

85 deny or endeavour to minimize the force of their pre-
vious statements. Captain Bryant is as definite in

his former Reports respecting- the occurrence of coition at

sea and its frequency as it is possible for language to be.

Ho repeats these statements in three separate Reports, ^seopj^ituh

dating fiom 18(39 to 1880, to which references are given in Report, pp. 52, 53.

detail in the Report of the British Commissioners. He

says, for instance:

By taking a canoe and soiug a little off shore considerable nnrabors ." Mnnogra ph
may be seen pairing, and readily approached so near as to be fnlly c*n^pj'|5,i^™ds V,
observed. pp. 405, 406.

Dr. Dall is almost equally precise, writing —

They [the females] sleep in the water, lying on their sides, with the p-^"^',; Mus
two flip])ers [of the npper side] out of the water, and receive the |^°™P; j p- Jg^
males in the same position. See also "Alas

If these gentlemen have been in the wrong in regard toao\iiees,"y494!
opinions thus stated in scientific treatises, which are now
denied in afiBdavits lately obtained from them, can it be
assumed that the statements made in these affidavits are
correct ?

On these pages ot the United States Counter-Case, vari- Page.s63,64.
ous arguments are advanced for the purpose of endeavour-
ing to show that coition at sea cannot occur. These can be ^^Bntkh^Coun-
shown in detail to be erroneous, and to be based on mis- dlcesf'''^' ^^^'*"
conceptions or on facts imperfectly stated; but as further Page 6.3.
and wholly conclusiA^e evidence, obtained since the com pie- ^e^cM^e' a^" ""
tion of the Report of the British Commissioners, is availa-tUx.voUjip.'iyg,
ble in the British Counter-Case to prove that coition at sea ^•*"- .
is often observed, it is not considered useful to follow fur- i25,'i26'.^''^' '' ^^'
ther the hypothetical statements and attempts at destruc- iwd , vol. ii,
five criticism of that Report, which are resorted to on thePP-^^-^^-
part of the United States.

"Manageiment of the Prieyloff Islands as the
alleged cause op the decrease of the alas-
KAN Seal Herd."

It is here stated in the United States Counter-Case that — Page 65.

the British Commissioners, at several places in their Report, admit
that the Rognlatious in force, and the methods employed in taking
seals on the Pribyloff Islands, are the best that could have been
ado])ted, &c.

86 It is then argued that, as the methods were good, ^ageos.
it is only to the manner of the execution that the

criticisms of the British Commissioners apply; and on the
further assumption, that both were perfect during the
Russian regime, that the increased annual killing of seals
during the United States control is the only remaining ixnnt
of criticism to be met by the United States.

But this apparently simple method of reducing the pritisii Com-
points in dispute to a single item does not, in fact, a(;cord ",'|j^f"pa\',ag^o-
with the statements made in the Report of the British cc2, ke.
Commissioners. The Report does not, as here stated by

74 AEGUMENT OF GREAT BRITAIN.

tlie United States, affirm tlie excellence of the principles
of manageuient without qualification.

Without, however, iu this place entering into a general
discussion of this matter, it is proposed to follow the
special and limited line of criticism adopted on the part of
the United States.

The United States then proceed to insist that attention
as to any decrease of seals should be confined to the first
decade of the lease of the Alaska Commercial Company
before pelagic sealing became important, because the Brit
ish Commissioners admit that iu later years there were
concurrent causes tending toward decrease. The argu-
ment would, however, invalidate all the United States
arguments directed against pelagic sealing, and the con-
clusions in respect to such sealing at which they arrive.
CTniteri States Morcovcr, the United States in their Case have held tliat
ase, pp. 172-174. |j^ tlicsc reccut ycars the decrease was observed in females
only, and that these have been killed at sea. They have
endeavoured to prove this at length, and cannot now com-
plain if evidence showing the decrease in the number of
males is adduced on the same subject for the same period,
i. e., the second decade of the Alaska Commercial Company's
lease.
Page 66. It is here, however, admitted by the United States that,

under certain conditions, matters relating to the islands,
even after pelagic sealing became important, may be rele-
vant to the discussion. The conditions are stated to be:

That there was a sufficient increase in the number of seals killeil on
the islands, or sufficient changes In the methods employed in talcing
the quota, to materially affect and deplete the seal herd, even without
the introduction of pelagic sealing.

Page 66. ^"^ They then admit that some time after pelagic seal-

ing began —

the number alloiced hy the lease to be killed was more than the reduced
herd could properly endure; but they assert that any evil effects reunit-
ing from the management of the islands is directly chargeable to the
conditions establislied by pelagic sealing.

TTnited states This remarkable admission stands broadly in contra-
ase, p. io3. dictiou to the statement elsewhere made, that —

this number is variable and entirely within the control of the Treas-
ury Department of the United States.

In other words, the preservation of the seals as a whole
was not the object of the management of the islands, the
ruling factor being the annual take of a large number of
seals, whatever the effect.

But passing over for the moment these aspects of the
case, it may be pointed out that the British Commissioners
in their Keport practically comply with the conditions
insisted on by the United States. They, in fact, show that
the methods as well as the actual number of seals taken on
the islands were such as to be injurious to seal life as a
whole. Their treatment of the whole subject of the man-
agement of the Pribyloff Islands is practically directed to
these points.

AEGUMENT OF GREAT BRITAIN. 76

It is next stated by the United States tbat not till 1889
did the —

decrease in the birth-rate of the seal herd .... hecomti snfifi-
ciently evident amouii' the male portion of the herd to seriously attract
the notice of, and alarm, the Government Agents on the islands.

It is, of course, impossible to say wliat precise amount
of decrease would be such as to "attract tlie notice" of a
Government Ajient, or whether these Agents were more
easily " alarmed" in this respect in the last year of the lease
of the Alaska Commercial Company than they had been
formerly. The Company was in fact about to make a new
tender for a second lease of the islands. It is unnecessary
to inquire into this subject too minutely, for the United
States have in their Case adduced evidence, and asserted ibid., pp. les,
on the authority of that evidence, that the decrease of seals i'"'
became perceptible as early as 1884; while the British Com- n,,^|;io;ter .,^^°^:
missioners have conclusively shown that the decrease was port, paraa. 57,53.

almostcontinuous from the earlier years of the United
88 States control of the islands, and had become such p.^g^ gg
as to be seriously felt, at least as early as 1879.

It is here stated by the United States that in 1889— Page 67.

for the first time the weight of skins fell helow the average for for-
mer years.

If, by this statement, it is meant merely to affirm that
the weight (this being equivalent to the size) of skins was
lower than the general average weight of the preceding
nineteen years, it is correct; but if it is intended to mean
that this was the first year in which the weight of skins
was lower than in preceding years considered separately,
it is untrue. Evidence quoted in the British Commission- im^si'omrs^ it-
ers' lieport shows conclusively that the decreasing weight port, para. C9c.
of skins was fully acknowledged on the islands at least as
early as 1883, and evidence since obtained, and given in British coim-
the British Counter-Case, shows that smaller and smaller a^j'ii^'ii.^l^li/facS
skins were almost each year taken since 1873. tbat page.

It is here stated, that notwithstanding the reduced num-
ber of seals taken in 1890 and in 1891 (under the modus
Vivendi of that year) —

the herd continued to become more and more dejileted, and in 1892 a
decrease appears over 1891, though the consensus of opinion of those
on the islands is, that in the last year the male seals have increased
to a limited extent.

These remarks are doubtless intended to apply to seals (..arntf^f/ca'se*!
seen upon the Pribylofif Islands only, and do not take into Apiioiuii.x.voi.ii!
account observations on abundance of seals made at sea. ^''livitish' com-
But even limiting the view to the islands, the conchisionsmjasioners'^K^e-
above stated are directly opywsed to those resulting from^*"^ '^^^'^'^^'
the directions upon the islands of the British Commission-
ers in 1891 and to those of the British Agent in 1892.

The British Commissioners say: mi^slJi^CTs^ "re-

All the evidence collected indicates, that they [the rookeries] were, l'"^*^' P'^""''- ■'^■
in 1891, in at least as good condition as they were in the preceding
year;

while as to 1892 the British Agent says: , British coun-

^ " ter-Case, Apjien-

The rookery- and hauling-grounds themselves exhibited unmistaka- '^'^^ 'P*
ble evidence that the number of seals was greater in 1892 than in 1891,

76 ARGUMENT OF GREAT BRITAIN.

Ibid., p. 152. and adds tliat during the vrhole time he was on the

89 islands he never heard any one say that there were
r^-^*'^- fewer seals in 1892 than in 1891. Evidence as to

increase in the number of seals is given at length in his
c<^inh^r'^-G^a'!s^e!l^^^'Port. Mr. J. Staulcy-Brown, on whose testimony alone
Ai)pendi.x,p.385. ti-e Statement is made that '-in 1892 a decrease appears
over 1891," simply states that there was a "perceptible
Ibid., p.39:i. falling off" of the females, but oifers no proof. Mr. Town-
send, who visited the Pribylotf Islands in 1885 and 1891,
and made " frequent observations as to the condition of
the rookeries," again visited the Pribyloff Islands in 1892
for the purpose of studying seal life. He makes no state-
ment in his Report as to the comparative number of seals
on the rookeries in 1891 and 1892.
rage 68. Thougli, as above stated, maintaining that all reference

to the management of the Pribylolf Islands subsequent to
the introduction of pelagic sealing are irrelevant, the
United States Counter- Case here affirms that the Report
of the British Commissioners "fails to establish a single
instance where the management of the islands or the
methods employed thereon have been changed since 1880
from the ' approjDriate and even perfect' system adopted
in 1870," &c.
British Com While the British Commissioners, in their Report, do not
po'rt.' paras. ^hi\ ti'cat the ycars here referred to as a separate period, they
cuj-GGu, 684, 694; show that thc methods employed on the islands, from the
" **^* first, and including these years, were injurious, and caused,

in the main, a general diminution in the number of seals
resorting to the islands. They show, in particular, that in
these years the standard weight of skins was deliberately
reduced in order to permit younger and yet younger seals
to be killed, and that the injurious effects of driving became
yearly intensified.

The "words quoted from the British Commissioners' Report
in the above extract from the United States Counter-Case,
moreover, entirely misrepresent the meaning of the Com-
missioners as separated from their context. In the Com-
missioners' Rei^ort the sentence from which they are taken
reads as follows :

Ibid., para 602. I^ sliort, from a transcendental point of view, the metlioda proposed
were appropriate and even perfect, but in practical execution, and as
judged by the result of a series of years, they proved to be faulty and
injurious.

Reverting to the reiterated contention of the

90 United States, that all references to the condition of
^"g" ^8. the Pribyloff Islands after the introduction of pelagic

sealing are irrelevant; — this is in no way admitted. The
Commissioners were to inquire into all the causes affect-
ing seal life and leading up to the present conditions, which
are in the paragraph here referred to spoken of as depletion
of the Pribyloff rookeries. It would be unreasonable to
omit from consideration the influence of Idllingandmethods
on the islands during the last ten or twelve years. More-
over, the methods ado])ted on the islands should have been
such as to provide for causes of decrease generally, when
these should occur. If there had been no pelagic sealing,
bad seasons or other natural causes might equally have

ARGUMENT OF GREAT BRITAIN. 77

brought about a decrease similar to that which is alleged
by the Uuited States to have resulted from pelagic sealing.
The facts show that iu this event provisions would have
been equally wanting to meet such a case. Therefore, the
methods of control and managemeut upon the islands were
clearly imperfect and unfitted to meet contingencies.

The statement made on this page of the United States Page 69.
Counter-Case, that the killing of 100,000 young males annu-
ally could only have been injurious by leaving an insuffi-
ciency of males to fertilize the females, is incorrect; neither see British
is the excessive killing alone referred to by the British Kepo™t^p!,°"jf_395
Commissioners for proof of bad management on the islands. «< «^?'. 674-693,
The attempt made to narrow down the issue to this one '^'^^'
point in one of its aspects is thus again entirely misleading.

Special attention is then paid, and at some length, to
endeavour to weaken the force of a statement, made by
Captain Bryant in an official Report, as to excessive kill-
ing on the islands in 1875, which is quoted by the British
Commissioners.

As is stated in the United States Counter-Case on this
page that:

The reasons for his [Bryant's] Report of 1875 are clearly shown by
an examination of his testimony before a Committee of the House of
Representatives in 1876.

In reply to the question —

Your opinion, then, is that the number of 100,000 on the two islands, ^ jj 44th

authorized by law, can be regularly taken without diminishing the Cong., 1st. Sess.,

crop or number of seals coming to the island? — Keport No. 623,

^ >=> p. 99.

Mr. Bryant replied :

91 I don't feel quite sure of that, as will be seen in my detailed Page 69.

Report to the Secretary of the Treasury, included in the evi-
dence which has been laid before the Committee. There were indica-
tions of diminution iu the number of male seals. I gave that and
another reason, which 1 explained at large in that Report.

The other reason then follows, and is that quoted in the h. r.,^ 44th
United States Counter-Case. That this other reason was ex°%"oc* No!*8^3;
considered by Captain Bryant to have been of slight im- pp-^^*^'^"-
portance, is very evident when his Eeport is referred to.
After writing of the frequency with which the hauling-
grounds are driven from, he says:

Thus, it will be seen the method of MUiiig does not admit of the set-
ting apart of a special number and taking the remainder for the quota
for tbe market, and the only possible way to preserve the requisite
number for breeding purposes is to restrict the number to be killed so
far within the product as to iusure enough escaping for this object.

Immediately following this comes the passage quoted in
the Keport of the British Commissioners (para. 078).
Bryant then treats at some length of the great number of
seals that by natural causes lose their lives while they are
absent from the islands, and concludes his remarks on this
subject in these words :

One other cause should be stated that has directly contribnted to
diminishing tlie present stock of breeding males. During the season
of 186X, before the enactment of the prohibitory law, the several
parties sealing there took 240,000 seals monthly [? mostly] of the
products of the years 1866 and 1867. Those would have matured and
been added to the present stock of breeding males in the years 1872

78 AEGUMENT OF GREAT BRITAIN.

and 1873, and to this a part of the prosj)ective deficiency is to be
attril)uted.

These are Captain Bryant's "reasons for his Report of
1875," and nothing further is necessary to show that, while
there may have been other causes that contributed to the
scarcity of breeding males, he evidently considered the one
quoted by the British Commissioners to be that to which
the diminution in this class of seals was to be principally
attributed.

Page 71. A discussion is begun on this page of the United States

Counter Case of statements in the British Commissioners'
Eeport resx)ecting decrease between 1870 and 1880. It
is, however, again insisted that the number killed on the
islands is irrelevant, unless it can be shown that
92 this caused decrease. It is from this very aspect that

Pa^e7i. the matter is considered in the British Commis-

sioners' Eeport.

Page 72. Complaiut is made of the alleged "unfairness" of the

comparison of the annual number of skins taken during
the Russian xieriod with the 100,000 quota of the United
States. This "unfairness" appears to be that referred to
in the subjoined quotation from this part of the United
States Counter-Case, in which it is said:

The desire is to suggest the inference that the killing of 50,000 was
excessive.

British c om The Coiumissiouers were, however, in the paragraphs of
pJXparaa.39^4h their Report, here specially referred to, concerned in giving
a historical resum6 of the circumstances connected with
killing, and the number killed. Further information on
the same subject will be found in the British Commis-
sioners' Report, paras. 659-703. In para. 064 they state :

From the experience thus recorded, it appears to be very clearly
shown that in the average of years the killing of 40,000 to 50,000 seals
on St. Paul was more than this — the principal seal-bearing island —
could stand, while that practised during the later years of the Russian
control scarcely fell short of the iigure at which all continued increase
in number of seals would cease.

From this conclusion, based on all the facts, they go on
to discuss the greatly increased killing afterwards prac-
tised under the United States control. The years of great
scarcity on the islands are not included in making the above
comparison.

Allen, doubtless on Bryant's authority, states that in
1857 the—

^ Allen, "Mono- vookeries are said to have become very nearly as large as now [viz.,
American Piimi- *^^ early years of the United States control of which he wrote], the
peds," p. 379. natives believing, however, that there has been since the last-men-
tioned date a very gradual, but steady, increase.

British Com- There cau, therefore, be no possible objection raised to
liort.'parl^'ees.^'ttie comparison of the years 1857 to 1867 (under Russian
See also para, coutrol) with thosc of the followiiig ycars under United
Ibid., p. 132, States control. The British Commissioners give the figures
and par-is. 776- for thcsc ycars as accurately as possible, and the authori-
ties for the figures given are quoted by them. There
Page 72. q-j remain, uu fortunately, among these years, 1863, 1864,

1865, and 1866, for which the figures are somewhat
uncertain.

ARGUMENT OF GREAT BRITAIN. 79

On this pae-e of the Ui)ited States Counter-Case, extracts ^^ge vs.

,,. ^ ^ , T r ii- T>- 1 United States

and disconnected fragments Irom Eussian correspondence counter- case,
rehiting- to the ishinds are referred to, apparently for the fglj'l^'gg*^'^- pp-
purpose of indicating that a high rate of killing was main-
tained under the Eussian regime from 1860 to 1806. An
examination of these communications (imperfect as they
are) shows, however, that they merely include requests or
instructions from the Board of Management or the Chief
Manager for the killing of certain numbers of seals for
skins. There is nothing to show that these projects for
killing were carried out. In fact, in one case, in 1860, the
Chief Manager, though instructed to get 50,000 to 60,000
skins, exin-esses his doubt of being- able to do so, owing to
certain unfavourable conditions in 1859.

Of the years mentioned in this correspondence, for which
the number killed on the islands has been ascertained, the
following comparison may be made:

Year.

Nnmljer asked to he
taken (Russian Cor-
respondence).

Number taken

(Britisli
Couimissioners'
Keport, p. 132).

1860

50,000 or 60,000

47,940

Permitted at first,

80,000;

reduced by order to
48,000.

21,590

1861

29, 699

1862

34, 294

For the remaining years to 1866, the numbers requested
or ordered to be killed was as follows:

1863 80, 000

1864 70, 000

1865 (by Board ) 53, 000

" (bv Manager) 48, 000

1866...' 50,000

The approximate numbers actually killed, and shown in ^ British com-
the second column, as ascertained from the best available port,'i)" 132.
data, are, however, in these years much lower.

It is not to be supposed tliat in thus failing to carry out Eiiiott. Census
the instructions as to killing, the persons on the p^.^^s.^Vt"''*'"'*"
94 islands were unable to obtain enough seals. The

difficulty arose chiefly, if not entirely, from the time rage 73.
consumed and the amount of labour involved in curing a
large jjroi^ortion of the skins by drying, as was then cus-
tomary.

The special circumstances connected with the excessive British Com-
number taken in 1867 (75,000) are explained in the lieportj'.l.Tt/^paras.^ov,'
of the British Commissioners. ^^'■'•

The British Commissioners are on this page of the United Page 74.
States Counter-Case charged with a flagrant violation of
their instructions as to impartiality, because they do not
quote the whole of a paragraph by Elliott referring to the
proportion of bulls to females. The part of the paragraph
quoted, however, gives Elliott's general conclusions. It
would not liave been pertinent to the point under considera-
tion to quote the exceptional cases also mentioned by him.
He notes both much larger and much smaller numbers of

80 ARGUMENT OF GREAT BRITAIN.

females to a bull tlian the average. In correcting tlie
"omission" of tlie Commissioners, the United States quote
only that part of the additional matter which refers to the
exceptional cases of very large numbers of females.

Moreover, the statement that Mr. Elliott's estimate was
not entirely satisfactory to himself, appears from the first
part of the quotation given by the British Commissioners,
as to the difilculty he found in making an estimate. The
entire passage is here cited, the italicized parts being those
quoted by the British Commissioners. The words in
brackets are those which are omitted from the quotation as
given in the United States Counter Case:

Elliott, TJnited / found it an exceedingly difficult matter to satisfy myself as to a fail
states Census general average nuniher of cows to each hull on the rookery; but after pro-
Keport, p. . tracted study, I think it will be nearly correct when I assign to each male
a general ratio of from ff teen to twenty females at the stations nearest the
water; and for those back in order from that line to the rear, from five to
twelve; [but there are so many exceptional cases,] so many instances
where forty-tive and fil'ty females are all under the charge of one male ;
[and then, again, where there are two or three females only, that this
question was, and is, not entirely satisfactory in its settlement to my
mind] .

It is next alleged, that the Eeport of the British Com-
missioners —

fails to give any testimony to show how many females constituted a
harem in 1891, &c.

Page 74. 95 It will bc fouud, however, that the Commissioners

nn^sion^s^ R^ - givc a Statement of this kind in the very paragraph

port, para. 55. following that to whicli refereuce is here made by the United

ter-casl, Appen- Statcs. Furthcr evidcncc of the same kind, for 1892, is con-

dix, Toi.i, p. 140. tained in Mr. Macoun's Eeport.

Page 75. It is here stated, in the United States Counter-Case, in

connection with the alleged ''surplus of virile males," that

a photograph, by Mr. Stanley-Brown (which is reproduced

in the Appendix to the Counter-Case), shows a —

number of vigorous bulls located on the breeding-grounds unable to
obtain consorts.

An insjiection of the photograph referred to will show
how insufficient the evidence it affords is. It shows a few
bulls hauled out at the back of the breeding-ground, but
with them are some smaller seals, which may or may not
be females.

Mr. Macoun, in fact, states that at North-east Point (a
part of which is shown by Mr. Stanley-Brown's photograph)
there were, in his opinion, more old bulls than on all the
other rookeries combined, but that even there the number
was not great, and many of those characterized by Mr.
Stanley-Brown as "old bulls" —

British Coun- showed the "grey wig," which proved them to b^uot yet fully grown,
ter-Case, Apjieu- while others were, without doubt, worn-out old bulls, no longer lit for
14o'l7l '' ^'^' service. That the majority of them were in this condition is proved
' ' by the fact that though attempts at service by "grey wigs" were not

infrequent, I never saw one of these old bulls pay the slightest atten-
tion to any females that might pass near them.

TJnited States Profcssor Evcrmaun's couut of part of ouc of the smallest
App"eudiix, ''pp'^^^^^^^'i^^ ^^ further referred to to show an abundance of
264, 205. bulls, in proportion to the number of females.

ARGUMENT OF GREAT BRITAIN. 81

P)iit tlie reference here made to Professor Evcrmnnn's
evidence is uusleading'. This gentleman counted the seals
on two parts ol LuUannon rookery. His tirst count of a
small area (deducting two bulls without pups near tluMu)
gives an average of over nineteen females to eacli bull.
(This is ai rived at by taking each i)up as representing a

female.)
06 A second count of a larger area of the same rook- Page 75.

ery shows au average of forty females to each bull
(deduced as above). He maintains that many of the pups
here did not belong to the bulls, but why he should liave
chosen part of the rookery with au excess of pups is not
explained. He further adds that many cows and pups were
not counted, because they "did uot.seem to belong to any
particular family."

Thus, the statement made in the United States Counter-
Case, that Evernumn's count showed an average of fifteen
females to each bull, is incorrect, and Evermann's state-
ments are themselves inaccurate by reason of his omission
to count the whole of the females and pups actually seen
by him.

On a later page, Professor Evermann says that cows were umted states
more abundant in proportion to bulls on Ketavie rookery ^",p"^^''jij^p'^ lee'.
than on Lukaunon.

A count made by the same gentleman at Little East ibid., p. 273.
rookery, St. George Island, again gives an average of
about forty cows to each bull.

The British Commissioners having quoted in their Report
certain statements made by Mr. H. W. Elliott, which throw
important light on the effect of the excessive killing of
male seals upon the Pribyloif Islands, a reference to these
statements is made in the following terms on this page of
the United States Counter-Case:

The Commissioners also rely on a newspaper extract, which purports
to be a summary of a Report made by Mr. Henry W. Elliott in 1890 to
the Secretary of the Treasury, to establish certain alleged facts.

The circumstances respecting Mr. Elliott's specially-
authorized investigations on the Pribyloff Islands in
1890, the fact that his Report of these investigations has
not been made public by the United States Government,
and the further fact that it has actually been refused to fur-
nish it to the Agent for Great Britain, have already been
alluded to. It would appear that when Mr. Elliott found that
the United States Government did not intend to publish
his Report, he communicated to the i)ress, over his signa-
ture, a summary of his conclusions, being that contained
in his letter submitting the Rei^ort as a whole to Sec-
97 retary of the Treasury Windom. The matter thus

made public, will be found in the Appendix to the British Case,
British Case. Its authenticity, so far as knowni, has never n'j'|'''"'u''nited
heretofore been questioned either by the United States states No. 2
Government or by Mr. Elliott. The United States Gov- <^**^^>'" P' ^^•
ernment are in possession of the original Report.

An objection is next raised in the United States Coun- Page 76.
ter-Case, to the effect that certain figures, quoted from Mr.
Elliott, relating to the state of the rookeries on the Priby-

B S, PT X 6

82 ARGUMENT OF GREAT BRITAIN.

loff Islands in 1800, and sliowino- a want of virile male
seals there, appear in the ])art of Mr. Elliott's statement
given to the press by him, after his signatnre. As it is
stated in the publication in question that the figures were
furnished by Mr. Elliott, it is to be assumed that they were
an additional excerpt from his full Keport. If they are
not, the United States is in a position, by producing the
Ileport, to prove that they are not contained in it. The
British Commissioners do not vouch for the accuracy of
the "actual figures " quoted. They say expressly in this
case that Mr. Elliott —

Para. 433. does not explain in what way this numerical estimate was arrived at.

But they fail to see any evidence in Mr. Elliott's attempt
to put the circumstances of the decrease of male seals in
figures, to do otherwise than illustrate these circum-
stances to tlie best of his ability.

In the second paragraph on this page of the United
States Counter-Case, a remark made as subsidiary to
olliers included under paragraph 44 of the Report of the
British Commissioners is chosen for attack. This remark
is brought into special prominence for the purpose of
attempted rebuttal, in the following terms:

The second mode by which they endeavour to show a decrease in the
Bcal herd prior to 1880 is by i)ointing to an alleged recognition thereof
on the part of the lessees in the reduction made by them of their catch
in 1875, and to an alleged lowering of the standard of weights of skins.

m^sioners' ^1™" ^''^ Statement made by the Commissioners as to reduced
port, para. 44. number of skins taken in 1875 is denied by the United
States. In thus denying, they cite the British Com-
Page76. 98 missioncrs' Report (p. 132), where a Table is given

showing the total killing in each year on the Priby-
loff Islands. But on referring to this Table, it is found tliat
the number killed in 1875 was, as stated by the Commis-
sioners, less than that in 1872, 1873, and 1874 (over 6,000
less than in the last-mentioned year).

Reference is further made in this connection to vol. ii of
the Appendix to the United States Case, in contravention
of the British Commissioners' statement, but the Tables
there found (pp. 558-585) are those of salted seal-skins sold
in London. Such sales do not correspond with the actual
number of seals taken on the islands in the same year, as
skins have often been held over from one year to the next
in London; and a part of the skins taken in the autumn
have almost invariably been held over till the next year in
the Pribylolf Islands themselves.

The third reference given in support of the denial of

this particular statement of the Commissioners, is to a

Table on p. 427 of the United States Counter-Case. It

must be explained that the statistics of killings on the

Piibylofi" Islands to wliich the Commissioners were able to

refer, were those which had been i)ul)lished by the United

States. Therefore, when, as in this instance, the United

States now i)roduce new and more detailed figures, alleged

Senate, sist tf> havB bccu ou file 'u the Treasury Department, no proof

Cong., 2ii(i Sfss, of unfairness or inaccuracy can justly be urged as against

p.'29. "'^' "'^^'the Commissioners. Thus, in tlie Tables of killings here-

ARGUMENT OF GREAT BRITAIN. 83

tofore accessible, it was impossible to apportion the num-
ber of "pups" killed for food iu each jiaiticiilar year, for
only the grand total for a number of years was given. But
acce])ting the new Table here printed and referred to by
the United States, the killing in 1875 is even there shown
to have been more than 4,000 less than in 1874. A refer-
ence to the diagram given in the Commissioners' Report Diagram v.
will show graphically the character of the change referred
to by them as occurring in 1875.

On this page of the Counter-Case, the United States P^ge?;.
deny that any lowering of the standard weight of skins
taken on the islands occurred until 1886, contrary to state-
ments made in the British Commissioners' Report (para. British Com-
694, &c.), but in so doing the United States ignore the abso- port.'paia! 69g.'"
lute evidence to this effect by one of their own prin-

99 cipal witnesses (H. H. Mclntyre), which carries the
lowering of weight back to 1883. It is, however,
admitted that a lowering of standard weights occurred in
1886. It is stated in the Case of the United States that a
decrease became i)ercei)tible on the islands iu 1884-85. The
lowering of standards is referred to by the Commissioners
merely as an index of the decrease on the islands, and the
date of such lowering now fixed by the United States does
not agree with that of admitted decrease as stated in the
United States Case.

Reference is next made by the United States to a new ,^,^^g*^ t^^''^ Ta-
Table by Mr. Heilbronner, alleged to show the weights aiul di^ li^post!'^'^^'
prices of skins from the Pribylofif Islands from 1874 to 1889
(both inclusive). The prices given in this Table have no
bearing on the present question, as these de])end on many
other circumstances besides the weight, quality, or size of
skins offered for sale.

From the Table printed, the "twelve additional columns
showing percentages" have been "omitted for the sake of
brevity." Owing to this fact, the Table afitbrds only a basis
of computation, not any distinct evidence as to the condi-
tions from year to year.

Further, as already stated, the weights of skins taken
are referred to by the British Commissioners only as a rough
index of the sizes and ages of the seals killed. No infor-
mation is aftbrded as to the manner in which these weights
have been determined in the Table now presented by the
United States, nor as to whether they are those of skins as
taken on the islands, or those of salted skins as sold. It
would, however, a])pear from the classification by sizes
adopted in the Table, that the latter are meant, as no such
classification by sizes is made on the islands. The weights
of skins spoken of by the British Commissioners are, on
the contrary, those taken or estimated on the Pribylofif
Islands. Messrs. Lampson state that the weights of salted Britisn Coun-
skins are greater than those of skins in the raw state; so jix/voT li, p'.'26i.
that if the weights given in Mr. Heilbronner's Table are
those of salted skins, they do not com])are in any satisfac-
tory way with the weights referred to bj^ the British Com-
missioners.

84 ARGUMENT OF GREAT BRITAIN.

Fortunately, however, we are relieved from the arabigui-

ties incident to the statement above made, by the facts

i>ii.i.,p.255. disclosed in the detailed Table and analysis of skins

Page 77. 100 sold, Contained in the Appendix to the British

Counter-Case. Every skin there included has been

measured with accuracy, and the Table includes practically

every seal killed for market on the Pribyloff Islands from

1873 to 18913 (both inclusive). The subsidiary question of

Aveight, and the doubt as to place of weighing and charac-

Co^nttor^case'' ^^^ ^^ *^^"* wheu Weighed, may, therefore, be dismissed.

p. 257. ' The almost continuous decrease in sizes is the maiu point

in question.
Jj^DUert states Still further, in the statement made on the part of the

^omi cr - ase, Uj^j^y^^j Statcs, the average weight of skins is taken. This
is little clue to the nature of the killing generally, for
whereas in the earlier years a sufticient number of skins of
medium weight (which are those of greatest value) may
have been available, in later years the average may (lack-
ing these) have been made up of extra large and extra
small skins.

The denial of the United States as to the reduction in
standard weights of skins is therefore shown to rest on
unsound and incorrect evidences. JVIore than this, it is
"wholly disproved by the disclosures of the detailed Tables
last referred to.

Mr. Webster's evidence, with other evidence, is quoted
by the British Commissioners (para. 677) in supi)ort of the
statements of natives detailed in a preceding paragraph,
respecting the decreasing number of seals taken at North-
east Point. An attempt is made on the part of the United
States to traverse Webster's evidence alone. But on refer-
ring to the paragraph of the Commissioners' lieport here
cited, it will be found that the statement made in the
Counter-Case of the United States is erroneous. Both Mr.
Webster and Mr. Fowler are quoted as authorities for the
figures given by the British Commissioners. Further, on
referring to the Table specially compiled to rebut this evi-
dence, and printed in the Appendix to the United States
Counter Case, it will be found that both these gentlemen
are fully justified in the statements made by them to the
Commissioners. It is to be presumed that both spoke from
memory, and not by the book, and precision to units is
therefore not to be looked for. Webster said that in 1874
and 1875, 35,000 to 30,000 skins were taken each year at
Korth-east Point. The Table shows in these two years
respectively 31,520 and 35,113 skins. Fowler said
101 that 29,000 and 18,000 skins were taken at North-
east Point in 1879 and several succeeding years.
The Table shows: 1879,29,174; 1880,25,862; 1881,17,952;
1882, 23,303 skins.
Page 78. The Commissioners further give the skins taken in 1889

and 1890 as 15,076* and 5,007 respectively, classing these

* In a Table printed in tlie Appendix to the United States Counter-
Case (p. i'22), the number of seals killed here in 1889 is given as 28,794.
The diHereiice between this statement and the official statement
quoted bj^ the British Commissioners is not explained.

ARGUMENT OF GREAT BRITAIN. 85

as official figures. A printer's error has placed two
asterisks (*) in the text of this page of the Commissioners'
Eeport, and lias omitted the reference at the foot of the
page to which one of them should apply. A brief examina-
tion would have shewn that the figures referred to were
those in Mr. Goff's ofiHcial Eeport on the Pribyloff Islands ^sistcong.^^^d
for 1890. The tigures given by the Commissioners are 1^*00! 'Ko.''i9.'' '^'
indent ical with those of the Report in question. On
examining the figures it will, however, be found that an
error in addition has been made in the Congressional docu-
ment referred to; the total number of skins derived from
North east Point in ISUO should read 6,592, instead of
5,007. This difference has, however, no bearing on the
subject under discussion.

In respect to the question of the driving of seals in 1879 Pages 78, 79.
from the vicinity of rookeries previously reserved and
exempted from driving. — Statements made on this subject
(and with special relerence to Zapadnie and Polavina
rookeries) by the Commissioners are denied by the United
States. In making these statements (though confirmation
was obtained from other sources), reliance was evidently
placed upon the official Eeports of Mr. H. W. Elliott. In
his Eeport bearing date 1880, Mr, Elliott, speaking of
Zapadnie rookery and the hauhng grounds in its vicinity,
says :

The "holhischickie," that sport here on the parade plateau, and, Op. Cit., p. 55.
indeed, over all of the western extent of the English Bay hanling-
gronnds, have necer hecn visited by the natives for the purpose 0/ stlectiiig
kiiruKj drives since 1872, inasmuch as more teals than were wanted have
alnays been procured from Zoltoi, Lukannon, and Lotver Tolstoi points,
which are all very close to the village.

102 Eespecting Polavina he says in the same Eeport:

For the reason cited in a similar example at Zapadnie, no "hoUus- Op. Cit., p. 56.
chickie" have been driven from this point since 1S72, though it is one of
the ea.siest worked. It was in the Russian times a pet sealiug-grouud
with them.

Mr. Elliott investigated the circumstances in 1872-74, ^^^^^i^^l^',^^. Case,
,and revisited the islands in 1876. When he again revisited iij, J'mt lii.
'the islands in 1890, he states that he found that driving jr'y^/(\'^y^|^!;pp^
had been extended to Zapadnie and Polavina rookeries in 57-59.
1879, as quoted by the British Commissioners.

During all his stays u])ou and visits to the Pribyloff
Islands, Mr. Elliott was specially engaged in an ofticial
capacity in investigating the conditions of seal life there
for the United States. The Commissioners were thus fully
justified in assuming that the statements made by him in
official Eeports were correct.

But the United States have, in the Appendix to their Apperdix. vol.
(3ase, published, for the first time, certain Tables by Mr. |i!^]y^2/^^"^^'•
Max Ileiibronner, Secretary of the Alaska Commercial
Comi)aiiy, rehiting to the killing in each year from the
various rookeries. These are now referred to as contradict-
ing the statements quoted by the Commissioners. It may
be that the Secretaiy of the Com]>any has possessed fuller
information in this case than the Government officials, but

8G

ARGUMENT OF GREAT BRITAIN.

it is significant that the official annual Reports of the Gov-
ernment are not here referred to. In these Tables Pohivina
is designated " Half-way Point," and Zapadnie appears to
be included under the general designation of " South-west
Bay." As the numbers are not in all cases given sepa-
rately for these two places, it is absolutely impossible to
make a statement from the Tables of the actual number of
seals taken in each in every year, but the number of
recorded "drives" may be taken as an index of the increas-
voi.ii,pp.u7-i27 -jig extent of driving from these places in later ye;irs. The
number of drives as now stated by the United States is as
follows :

Pages 78, 79.

United States

Cis.-, Api .-nilix,

103

Tear.

South-west

Bay (iiuliidiiig

Zapadnie) .

Half-way Point
(Folaviua).

1871

4
1
3
6
7
8
C
6
7
5
5
10
9

I
12
8
8
8

1

1872

\

187:i

1874

1875

1

187G

1

1877

3

1878

3

1879

3

1880

4

1881

4

1882

5

1883

5

1884

9

1885

8

1886

1887

fi

1888

8

1889

7

The substantial accuracy of the remarks made by the
British Commissioners as to the increased area of driving
in later years, irrespective of Mr. Elliott's very definite
statements on the subject, is further shown by the evidence
of Mr. H. H. Mclntyre, ap[)ended to the United. States
Case, though this evidence is intended for another purpose,
i. e., to explain away the alleged deficiency in number of
killable seals which occurred in 1879. Mr. Mclntyre says:

TTniterl States lu order that the selection should be made from as large a unniber
C.ise, A| iiendix, as possible, and to satisfy the reiiiiirements of the Treasury Agents in
charge, who demanded that all tUe rookeries be worked in regular'
rotation, we commenced in 1S7^ or 18S0 to "drive" with greater fre-
quency from the more distant and less accessible groinids With

this exception there was no change iu the manner of conducting the
business from 1870 to 1889.

Professor Allen also says :

During the last two or three years, however, and in consequence of
the decline from the former status of the herd, it has been necessary
to lower the age of seals selected for killing, and also to redrive
portions of the herd.

Page 79. rpj^^ Couuter-Case of the United States next states that

'••the question of over-driving and redriving has already
been fully treated of in the Case of the United States."
It is here passed over practically without remark, except

that, ^'- if any occurred,^^ it was directly due to pelagic
10-4 sealing. This admission confirms the statement of

the British Commissioners, to the effect that the
"quota" to be taken on the Pribyloff Islands had become

vol. ii, p. 50.

United Stntes
Case, AiipoiMlix,
vol. i, pp. 407,
408.

AKGUMENT OF GREAT BRITAIN. 87

practically fixed, and that no reg-ard to seal life was had
in eiideavonriiig to till the "quota."

If any rights exist to seal on the high seas, it is absurd
to charge the pi lagic sealers with the results of the over-
driving practised to secure a "quota" on the islands.
Even if no such right exists, it shows an entire absence of
proper care, to have permitted damaging practices on the
islands in the endeavour to secure a "quota," before the
question of rights and protection had in any way been
settled.

"Pelagic Sealing."

It appears to be assumed by the United States, in deal- Page so.
ing with pelagic sealing, that the statement that killing at
sea is "indiscriminate" — i. e., that it includes both sexes —
is sufficient in itself to condemn such sealing. The supi)0-
sition that large numbers of males alone might be killed
without any i)rejudicial effect on seal life, and which arose
during the Kussian regime, appears to have still a very case'p^iui*^^^*
firm hold ; while the principles of " natural selection " which
have come to be recognized during the past twenty or thii-ty
years, with other scientific facts alluded to in the Report of
the British Commissioners and in the Counter-Case of Her
Britannic Majesty, appear to be disregarded in the Coun-
ter-Case of the United States. Further, the commonly
recognized fact that, even in the case of domestic animals,
as well as in that of wild animals artificially preserved,
large numbers of females are usually and necessarily killed,
is ignored.

Care is further taken, in this first paragraph, to ^ndeav- jj^j^j|*'j^^^j.g9*']^g;
our to prejudice the Court by characterizing the evidence jioit, paiaa. 627,
quoted by the British Commissioners as "interested." It^^'*'
will be observed, however, that the British Commissioners
have fully recognized and allowed for any motives of self-
interest which may have affected the evidence obtained,
and that in their endeavour to present the facts, they have
not assumed as indubitably correct all the statements made

to them.
105 It is next stated in the United States Counter-

Case that the "three i^ropositions," forming the
"apology" of the British Commissioners for pelagic seal-
ing, will be treated "in the order of their importance as
recognized in the Beport."

No apology is offered or required for killing animals at
large upon the ocean, in theabsenceof International Agree-
ments prohibiting such killing. As to the order followed
in the United States Counter-Case, it appears to be based
on that referred to in paragraph 77 of the British Commis-
sioners' Report, where, however, two i)ropositions, not three,
are fornuilated, and these two are there stated to be the
princii)al allegations of those opposed to pelagic sealing,
not to rei)re.sent the order of in)])()rtance in fact. The
actual order and wording of the headings found in the
British CDmmissioners' Report under the chai^ter on pelagic Page 9? etteq.
sealing is as follows:

(«.) Origin and Development.

88 ARGUMENT OF GREAT BRITAIN.

(6.) Methods.

{€.) Proportion of Seals lost.
{d.) Composition of Catch.
{€.) Future of the Industry.
• The first subject selected for attempted rebuttal is thus
expressed iu the Counter-Case of the United States:

^'1. That the percentarje of female seals in the peJagic catch
is not large.^''

In the opening paragraph below this heading, is found
one of numerous instances of insinuations as to motive on
the part of the British Commissioners for which 1 here is,
in fact, no justification. Part of the evidence i>rinted by
the British Commissioners is characterized as —

so-called "evidence," alleged to have been obtained from Indian
hnnters, .... and in which there la a careful avoidance of
names of informants.

Pago 81. But on the next page, the statement by the same Com-

missioners respecting the possible existence of self interest
in some of the witnesses examined by them, is en-
106 deavoured to be employed as a means of minimizing
the importance of that part of the evidence.
It is scarcely necessary to state that the British Com-
missioners did not consider it their mission to procure
sworn evidence on all subjects investigated by them.
Their mission was purely scientific and practical, and on
British Com- ^'^'f'6'^'i'"'8' ^o the first part of their Report, it will be found
missioiiers' Re- that tliev fullv recoguizcd this fact. They write:

port, para. 23. J j & j

It may be observed further, that in obtaining e\'idence from persona
of experience or knowledge of the subject, we adopted, in general,
the intornial plan of free interviews and independent conversation.
In this way we acquired very distinct and trustworthy knowledge of
their opinions and experiences.

In SO doing, they followed the same plan with that
adopted by their colleagues from the United States, who
similarly write:

United States Although the testimony gathered by ns on this and other points
Case, pp.334, 335. was not given under oath, its value, in our judgment, is not iu the

least lessened by that fact In short, the investigation

was conducted precisely as it would have been had the question been
one of scientific rather than diplomatic importance.

The only difference wliich must be noted between the
procedure of the British and United States Commission-
ers, is that indicated in the last-quoted remark, i. e., that
the United States Commissioners appear to have regarded
the questions examined by them rather as of di[)lomatic
than as of scientific importance, though adopting a scien
tific method of investigation.

There can be no doubt that in both cases, if furtlier
particulars respecting tlie evidence collected should be
required, these can besui)plied by reference to the notes of
interviews, &c., held by the respective Commissioners at the
time; and it is submitted that statements made in good
faith, and respecting matters of fact or evidence, shouhl
be accex)ted as true to the best of the knowledge and belief

ARGUMENT OF GREAT BRITAIN. 89

of tlie Commissioners specially appointed to invostigjate
tlie subject, whether those of Great Britain or those of the
Uuited states.

It is perhaps unnecessary again to draw attention

107 to the manner in which a few words, separated from ^^^^ ^^'
their context and incorporated in a new sentence,

maybe made to convey a false impression; but another
instance of this occurs in the particular page of the United
iStates Counter-Case here dealt with. The British Com-
missioners write:

And while it is not maintained that the evidence of such practical British Com-
sealers is entirely iiutiuctured by motives of personal interest, it must missionfrs' lie-
be evident that these men know more on the subject than any others. ^"^ ' ^^'^^'

This statement is employed in the following manner in
the Counter-Case of the United States:

The second class of testimony presented to sustain the position of the United States
neport is obtained from sworn statements of Canadian sealers, which Counter-Case,
the Commissioners admit are not " entirely untiuctured by motives of ^' "
personal interest."

On the next page we find the evidence cited by the
British Commissioners further characterized as admittedly
untruHtKorthy.

liefes ring to the proportion of females taken in the pelagic
catch, and evidence on this point presented by the British
Commissioners, objection is made on the part of the United
States that this evidence varies greatly in different cases.
The British Commissioners, however, particularly note this
very point, writing:

It ia only natural, and la entirely in accord with what miyht be British Com-
ex])ected, that the proportions of seals by sexes and a,i;es should be "''8'^i"n''i"s' i^e-
found to differ very considerably in different instances, even in a ''"J''' l';'""^' ^'.^'
sni>le year, in conformity with the dates or places in which the eis.^ ^^'^ ^'^''*
greater proportion of any particular catch waa secured, and the kind
of seals in each case fallen in with.

And add:

The very fact that these statements, though taken at different
times, and while varying considerably from the point of view of
numerical proportions, tally very well in the main, one with another,
is an inherent i)roof of their credibility.

The ensuing argument, directed against this evidence. Pages si, 82.
and in which it is endeavoured to contrast it with the
statement that the methods and practices on the Pribyloflf
Islands have resulted in the existence of a large sur-

108 plus of females, is based on various assumptions,
and is difficult to follow, as these assumptions are

not set out. *The most im]»ortantof them however, appears
to be: — that the proportion between males and females in
the catch of any vessel should represent the average pro
portion of males and females existing everywhere, or at
the least that a mean of the catches should represent such
average. The explanations given in the British Commis-
sioners' Beport (some of which have just been quoted), are,
however, sufficient to show that the first is not a reasonable
hyi)othesis; while, as to the second, it is quite conceivable
that pelagic sealing, might, as a whole, be carried on at
such times or in su(;li i)laces as to include a lelatively very
great proportion of any particular age or sex of seals.

90 ARGUMENT OF GREAT BRITAIN.

Page©- The fuitlici' statement made by the British Commission-

ers, to the eflect that au abnormal abundance of females
obtains at the present time, is characterized as not substan-
tiated by facts advanced by the Commissioners. The facts
relied upon are, it is true, not recapitulated in this particu-
lar part of the Eeport, but in Chapter IV (p. 114: et seq.)
ample details on this subject will be found.

But this is still more clearly shown by a comparison of
the possible number of skuis of bearing females contained
in the whole North-west catch for twenty years, as included

British Coiin- jq the British Couuter-Case. This possible proportion is
aud/o!s'<', p!iro. ' uiiich lower than that given in the statements of sealers
quoted by the British Commissioners, which statements
refer to the past few years only.

Ibid., p. 251 et In addition, in the Counter-Case presented by the British
*^^' Government, notice is taken of the great number of barren

females now found at sea, a fact directly bearing out the
evidence of other kinds already obtained on this subject.

Pages 82, 83. As to the uaturc of the "proof" offered in the Case of
the United States respecting the number of female skins
contained in the pelagic catch, remarks have already been

British coun^ made in the British Counter-Case such as to show that this

tcr-(;ase, p. 198 . , • i • i • i . .^

etieq. IS eutuely inconclusive and untrustworthy.

To corroborate the assertions made in the Case of the
United States, Captain Hooper, M. Malonavonski, Mr.
Grebnitsky, and Messrs. C. W. Martin and Sons are now

furtiier ad^iuced.
109 The United States revenue cutter " Corwin," Cap-

tain Hooper, was occupied for twenty-six days in
hunting seals during the summer of 189U. The whole
number of seals killed, however, appears to have been
forty-one, a result so small as to evidence either iuex])eri-
enced or incompetent hunters. Of this number, twenty-
nine are stated to have been females, a proportion which
does not differ very largely from that given by several of
the pelagic sealers, but which upon so small a total num-
ber means little as compared with the experience embodied
in their statements.
Cfmn'to'l- c^tlV ^^ ^'^^ further be observed, on turning to the Table pre-
Appeiidix, p.'2i7'. pared by Captain Hooper, that nearly half (nineteen) ol the
seals taken were obtained within ^.i) miles of the Pribyloff
Islands, and that no data are given as to the time occupied
in the capture of seals at different distances from the
islands, such as to show what the respective proportions
of males and females might have been in the case of com-
mercial sealing. Neitlier is any statement made to the
effect that seals were taken impartially, as met with.
Page 83. M. Maloiiavouski is next quotcd as aftirming that over

90 per cent, of 2,700 skins taken from vessels seized in the
vicinity of the Commander Islands were those of females.
His evidence on this subject will, however, be found to be
of the most indetinite character.
Ibid., p. 374. Mr. Grebnitsky is next quoted as affirming that 96 per
cent, of the seals taken at sea are females ! This gentleman
has had long experience as Superintendent of the Com-
mander Islands, and any statement made by him must be

ARGUMENT OF GREAT BRITAIN. 91

received with respect, but we may be pardoned for doubt-
ing such a statement as that here attributed to him, par-
ticuhuly as it is unsupported by any details of fact, and
is entirely in opposition to other evidence.

Messrs. C. AV. Martin and Sous are next referred to re- ^ifose ^conn'el
spectiug the sex of a lot of 1,028 skins supi)osed by them tiou with the
to have been taken at sea, and received from Petropaul^v- see'iTrftishCouu-
ski. It is stated that these were part of the 2,700 skins *«!• Case, Appen-
seized by Eussian cruizers on the Asiatic side of the Pacific, a^nd^" united
and upon which Messrs. Malonavonski and Grebuitsky ^g*^^**'^ case, p.
based their statements. Messrs. Martin and Sons, how- " liritish coun-
ever, give the percentage of females at 83.70; of males, •^"'^■'^'''P- ^"^•
1.06; and doubtful, 14.58, though M. Malonavonski p^„^^

110 had aliirmed that an expert found no difficulty in sep- °
aratiug the male and female skins in the original

lot of 2, 700.

Lastly, certain depositions of a Mr. Behlow are referred
to in this connection, in which he professes to separate male
and female skins contained in certain relatively small
catches brought to San Francisco in 1892.

It will subsequently be shown that the statements and jj^^^^^^pp®"*^'^
depositions of this witness are wholly untrustworthy.

Keviewing the evidence brought forward on the part of Page si.
the United States in their Counter-Case on the subject of
the proportion of females in the pelagic catch, we may, at
the least, set the statements of the few witnesses cited,
against those of a like number of witnesses representing a
similar number of seals among the numerous witnesses
cited by Great Britain. The whole number of seals spoken
of by Captain Hooper is too small to enable any just deduc-
tion to be arrived at; while the other witnesses referred to
by the United States are, without exception, interested in
the industry of sealing upon the breeding-islands, and,
therefore, it may reason ably be supjiosed, like wise interested
in decrying all sealing at sea.

It has already been stated (p. 104) that the killing of
females j?er se is not admitted to be reprehensible, while the
complete analysis of the skins resulting from the pelagic
catch during the past twenty years, shows conclusively that
not over 38 per cent, of these could by any possibility have
been bearing females.* It has further been stated that_ j^^i|is^^^p"m.
one of the most important objects of any regulations which port.'paia! m.
may be proposed is that of eliminating the last-mentioned
element from the pelagic catch.

Under the circumstances mentioned, it can be of little

utility to pursue in detail any controversy resijecting the

composition of various individual small lots of skins such

as there cited on the part of the United States, even

111 if the sexes included in them had been correctly deter-
mined, and the subject may rightly be dismissed here.

* At p. 200 of the British Counter-Case this figure is given at 50 per
cent., but the calculation there given is based upon the a3aum]»tion
of only 15 per cent, of the catch being males, and this percentage
occurring uniformly throughout the whole bulk. As a matter of fact,
there are 20 per cent, of the catch which are too large to ha tlie skins
of ieuKiIes. The figure above given is based on a recalculation admit-
ting this correction.

92 ARGUMENT OF GREAT BRITAIN.

The second proposition formulated for denial by the
United States is in their Counter-Case presented as
follows :

"2. That pelagic sealing in Behring Sea is not so destructive
to seal life as pelagic sealing in the North PaciJicJ^

British Com- The Statement here attributed by the United States to

port,'*paj^iia. ^'ss, the British Commissioners was not, however, made by them.

648.' ' They have stated that the spring catch was more destruc-

tive than any other in proportion to the number of skins
obtained; but the spring catch is not the equivalent of the
entire catch made to the south of Behring Sea, which em-
braces much of the summer, and lasts till about the end of
June. The statement actually made by the British Com-
missioners, as employed as a basis of argument in the
United States Case, is therefore not only inverted, but
substantially changed.
British Com- The circumstauce that practically no gravid females are

p!,\%"pliras. 045- taken by pelagic sealers in Behring Sea is characterized as

''^BritisiiCoun- ^^^ " assuuiption " of the British Commissioners, though it

ter-case,Ap- rests OH ample evidence.

pp.'i4^2oJ"^' "' "^'^'^ question as to the killing of females in milk in Beh-
ring Sea, and the effect of this upon pups on shore, next
alluded to in the United States Counter-Case, will be dis-
cussed in connection with the more detailed treatment of
this subject found in folloAving pages of the Counter-Case
of the United States.
Page 85. The argument advanced in this page of the United

States Counter-Case against the general proposition at the
head of this Chapter, depends on a series of assumptions,
to discuss which is unnecessary, because they have else-
where been treated at length. The fallacy that the killing
of females is in itself reprehensible appears to underlie the
statements, but it is in addition ap])arently assumed that
all females met with at sea are fertile, i. e., that there are
no virgin or barren females; that in stating the period of
British Conn- gestatiou of the furseal as nearly twelve months, full

25i-:257Tii5^^^^' twelve mouths is meant; that, for instance, eleven

112 months would not be "nearly twelve months," that
all females are covered on land, and that a female
just fertilized may be described as a "gravid female,"
the injury to seal life being equally great in the killing of
each class.

It is next asserted that the "designed implication" of
certain statements made by the British Commissioners is
to show that "very few nursing females are taken by pe-
lagic sealers," and is based on "pure assumption," a refer-
ence being given to para. 649 of their Beport. But in the
immediately preceding paragraphs of the Beport, proof has
British Conn- becu adduccd to this effect, and further proof is brought

ter-case, pp.218, ^- ,j,^^..jj.j .^„^| discusscd iu the Couiiter Case of Great Brit-
ibid., Appen-ain aud its Api)endice8 to the same effect, antl to the

22J'23'^^' "' P^' effect that such few females in milk as may be killed in
Behring Sea are often " running dry." It is also shown
that their ])resence at sea may be accounted for by various
causes of disturbance upon the breeding-islands, in most,

ARGUMENT OF GREAT BRITAIN. 93

if not in all cases. The evidence of Captain Hooper,

referred to in this connection by the United States (on the TXnited states

streiigtli of the forty-one seals killed by him), in showing AppMuiix^p! 21V.

that a considerable proportion of seals in milk killed were

200 miles from the Pribyloft" Islands, goes far to prove that

at least this proportion of such seals conld no longer have

had any interest in or regular connection with those islands, British com-

and tends to substantiate the remarks made by the Eiitish port, paries u^*

CoMimisssioners, and those in the Counter-Case of Great i^';itisi, coun-

,^ ., . J.1 • 1 • ,L ler-Case, pp. 218

Britain, on this subject. 219.

On this and following pages of the United States Counter- Page sa.
Ca.se (to p. 93), an extended notice is given to the investi-
gations of the British Commissioners on the subject of the
mortality of young seals in 1891. Care is, however, first
taken to describe these examinations as " cursory." The
Commissioners are repi-esen ted as endeavouring to "sui)-
port a position," and it is added:

It is. evident, from the efforts made and the theories advanced to
explain this mortality that tlie Commissioners considered the presence
of these bodies prima facie evidence of the fact they endeavour to
disprove.

Introductory remarks of the above character scarcely
lead to the belief that any impartial discus.sion of the facts
noted and commented on by the Britisli Commission-
113 ers is intended. This is fully borne out by what fol-
lows. It is stated :

These officials [the Commissioners] have, through some strange
circumstance, bee;i led into the belief that they were the first to
observe this mortality amonu the pups on the rookeries, from which
belief they draw the inference that " the death of so many young seals
on the islands in 1891 was wholly exceiitional and unprecedented."

The explanation given in para. 340 of the British Com-
missioners' Report is sufficient to show that, in so far as
they could ascertain by inquiry upon the islands in 1891,
they were tlie first to observe and comment on the mor-
tality in question. But if further evidence be required, it
will be found that Mr. J, Stanley-Brown says:

By the time the British Commissioners arrived [28th .July] the dead Unitcil Statos
pups were in sufficient abundance to attract their attention, and they ^'Y^'- '^i'.i''^"^'i^'
are, I believe, under the impression that they first discovered them. ^° ' "' ^ ^ '

In a foregoing part of the same paragraph, however,
Mr. Stanley-Brown had said :

In the latter part of July 1891 my attention was called to a source of
waste, the efficiency [sic'] of which was most startlingh' illustrated.

But Mr. Milton Barnes, special employe of the United
States Treasury on St. Paul Island, is (except in regard to
date) even more definite on this point. In a deposition ibid., p. 101.
furnished by him, and included in the Ajjpendix to the
United States Case, he says:

One day, during the latter part of August or fore part of September
last (exact date forgotten), Colonel .Joseph Murray, one of the Treas-
ury Agents, and myself, in company with the British ('ommissioners,
Sii (ieorge Baden-Powell and Dr. L)awson, by boat visited one of the
seal rookeries of that island, known as Tolstoi or English Bay. On
arriving there our attention was at once attracted by the excessive
number of dead seal pups, whose carcasses lay scattered profusely over

94 ARGUMENT OP G^EAT BRITAIN.

'the brcccliug-ground or sand beach bordering the rookery proper, and
extending into the border of the rookery itself. The slramje sight
occasioned much surviise at the time as to the 2)robable cause of it.

Mr. Barnes then states that some days afterwards
rage 86. 114 hc weut with Mr. Fowler to Polavina rookery, where

he found similar conditions with respect to mortality
of young to prevail. He adds:

United States This condition of the rookeries in this regard was for some time a
Case, Appeudix, common topic of conversation in the village by all parties, including
vol. 11, p. 102. j.jjg more intelligent ones among the natives, &c.

Page 87. The evidence referred to on this page of ^he United

States Counter-Case to endeavour to show the occurrence
of an annually increasing- number of dead pups since 1885,
has already been treated in the Counter-Case of Great
Britain, p. 208 et seq., and has been there shown to be
■wholly inconclusive in that respect, and to rest on erro-
neous statements.

The extracts above given are alone suificient to. show
that the mortality in 1891 was unprecedented, as stated by
the British Commissioners; and that it had not existed, as
aflirmed by the United States, for '• several years."

The statement as to the existence of the opinion on the
islands that pups had died in former years because of the
killing females at sea, is endeavoured to be supported by
the retrospective affidavits already dealt with in that part
of the British Counter- Case above referred to.

Pages 88,89. Mucli strcss is here laid on the discovery of two passages
in previous Eeports, in which H. H. Mclntyre and J. H.
Moulton have made general statements to the effect that
killing females atsearesulted in death of pups on theislands.
No facts or instances are cited in support of these state-
ments, to which no importance was attached at the time,
and to which attention has only now been drawn. They
are now brought prominently forward for the purpose of
maintaining that the cause of the mortality of pups in 1891
alleged by the United States had long been recognized. It
is there said :

This expl.-mation [death of mothers] of the cause of death of pup
seals is not recognized by the Report except to contradict it.

Eritisii Com- As a matter of fact, the explanation referred to is dis-
pJ^,parr355.*' cussed in some detail, and is found to be untenable by
reason of the date of the mortality, and on other rational
and fully explained grounds.
Kespecting the causes of death of young suggested as
probable by the British Commissioners:
115 {a.) This is described in the United States Counter-

Case as "driving and killing of mothers." But while
the British Commissioners state tiiat it is quite possible
that females were driven from their young, and —

though turned away from the killing-grounds .... never after-
wards found their way back to tlieir original breeding-places, but
either went off to sea or landed elsewhere,

they do not allege that the females so driven were Idllcd.
IMessrs. J. Stanley-Brown and W. H. Williams are referred
to as stating that no drives were made (in 1891) nearer to

ARGUMENT OF GREAT BRITAIN. 95

one of the rookeries (Tolstoi) on and about which dead
pups were s])ecially observed by the British Commissioners
(ill 181)1) than an esstimated distance of a quarter of a mile.
No evidence is given to show that the collection of the
drives was limited to this distance from the rookery, nor
is it stated that either of these gentlemen ever saw one of
the drives of 1891 collected. Although the drives taken
from the vicinity of Tolstoi are recorded as drives from
"Middle Hill," it must be remembered tliat the slopes of
Middle Hill and Tolstoi are continuous, and the drivers
doubtless go where the seals they were instructed to pro-
cure could be obtained.

[b.) Epidemic Disease. — This, it is stated, is treated of in united states
the United States Case. It is, however, in the place ^^''®' p- ^^^•
cited, merely stated that no sickness had been previously
observed among the seals on the Pribyloff Islands, and
that no dead adults were found. The British Commission-
ers themselves make a statement identical with the first
(para. 32). As to the second, it does not necessarily follow
that an epidemic fatal to young animals should be equally
fatal in the case of adults.

(c.) Crushing of Pups in Stampedes. — The assertion made pageoo.
by the United States that no evidence is given by the Brit- ,f^-J^^'i..^*i™
ish Commissioners under this head is incorrect. The Com- port,"parus. 331-
missioners quote statements from Bryant (Allen's Mono-^'^^-
graph) and Baron Nordenskjold as to the facility with
which stampedes may be caused, and their results. If
lurther evidence as to the general timidity of the animals
is required, this will be found in the British Counter-Case. British conn-

[d.) Raids. — The possibility of the occurrence of raids ^^''p^^^^^'P-i^^-
is not directly denied by the United States, though ^^^^ '
116 statemeuis are made for the purpose of minimizing
their probability. It is further asserted that as the
dead pui)s were found at several rookeries, several distinct
raids wcuild be required to account for their occurrence.
It will be found, however, that large numbers of dead British Com.
pups were discovered upon two rookeiies only, both on St. ^j^^s'^nera' Ke.
Paul Island, as explained by the British Commissioners. 347.' ^^^^'

The facility with which raids might be made without
any knowledge on the part of the guardians of the islands
is illustrated, however, by the following facts referring to
raids made in 1890 and 1891, when more than ordinary
precautions against raids were taken.

The master of the "Challenge" and two of his crew British conn-
describe at length a raid on St. George Island, of which [/j^^'^^'j'A.Pi'ejJ-
nothing was known at the time it was made. i82,'i84.

One of the crew of the "Borealis" gives an account of ibid., p. isa.
the raid of that vessel on Zapadnie Eookery, St. Paul
Island, while a cutter, whose li;;hts could be seen, was
anchored within 2 miles of them. The raid was suc-
cessfully made without anything being known of it on the
islands. The same rookery was raided in the autumn of
1890 by the "Adele," and nothing was known of the raid
by those on the islands. •■

96 ARGUMENT OF GREAT BRITAIN.

United States Coloiiel Munny, iu an affidavit, refers to the two first-
ApifeiuUx,p?379, uieiiti()iied raids as if the jjeople on the ishiiids liad been
tefcase'A^"en-^^8'"i^^^"t of them at the time, and as if one vessel had
(ilx, vor ii^^pp. been at once seized, and the other but a short, time after-
^^sel^aiso United wards, but a reference to the passages cited will show that
states Case, Ap the raids mentioned only became known to the authorities,
|.endix, voi.i, P- indirectly, months after their occurrence.
Page 91. The bodies of pups examined by Dr. Ackerly were, as he

British Com- ^*^^^^itted, too nuich decomposed for a correct autopsy,
missioners' Re- They wcrc, farther, those of pups which had died in Sep-
port, paras. 352, ^g„^|)gj. ]^g(jj^ when uo sealing-vcssels remained in Behring
Sea.
Ibid., paras. The bodv of Sh m\\) found dead by the British Oommis-
' ■ sloners was examined by Dr. Giinther. This was in good

condition, jjreserved in alcohol. Dr. Giinther was unable
to decide whether the absence of food or the condition of
respiratory organs was the primary cause leading to death.
United States Thougli it was at the Tcqucst of Mr. Stanley-Brown that
voui.t-^m"'''''' ^^- Ackerly's examination of the dead pups was made iu
1891 — and he was the Treasury Agent in charge of the
Pribylofif Islands in 1892, and admits that in that
117 year the number of dead pups on Tolstoi rookery
was beyond the normal — no record is found in his
affidavit of an examination in 1892 of any of the dead pups
by any authority. He seeks, however, to account for the
CfSntel^^cfi!e*^^ uuusual mortality in 1892 by an entirely novel expla-
^oun ei as , p. jj^^j-j^j^^ ^j^ wliicli he statcs that the pups in learning to
swim had become exhausted, and, wandering off and ly-
ing down to rest, were overlooked by their mothers. A
comparison of the 1892 photographs of Tolstoi rookery
with those of 1891, show that the dead pups coveied
api)roximately the same area in both years, and were the
explanation now offered by Mr. Stanley-Brown the true
one, it would also account for the mortality among the
young seals in 1891. Mr. Stanley-Brown, however, states
that—

Ibid., p. 389. the location and topographic character of this rookery have no counter-
part elsewhere on the island;

Biiti.sii Conn- but as dead pups were reported to have been found in large

dix,'i^oL ifp^. ue! numbers on another rookery on St. Paul in 1891, and Mr.

Macoun reports as many on Polavina rookery as on Tolstoi

in 189-', Mr. Stanley-Brown's explanation can hardly be the

true one.

A glance at the photographs which accompany the British
Counter-Case, will show that the ground on which dead pups
are to be seen on Tolstoi rookery extends along practically
the whole front of that rookery, and at the time the photo-
graphs were taken nearly all the living seals, old and young,
were behind this area, so that Mr. Stanley-Brown's state-
ment that he has —

seen mother seals go up the entire slope seeking their pups

may be taken as strictly true; but as they must have gone
uj) this slope in any case, it can hardly be taken as evidence
that the young ones had wandered away and so been lost.
But if it be true that the pups on this part of the rookery-

ARGUMENT OF GREAT BRITAIN. 97

gTonnfl, wliich mvst be passed over by all seals going to any
other part of it —

lie down to rest, and sleep and are overlooked by their mothers return-
ing liom the sea,

no better explanation could be given of the cause of the
mortality among young seals on those parts of the rookeries,
on some of Avhich it is not as in this case necessary for the
mothers to cross the ground upon which the dead pops

occnrred.
118 The statements as to a great decrease in the num- p^^^ gj

ber of dead pups in 1892, as compared with 1891, Bruish coun-
made by United States, are in direct contlict with the *''ibi(U,''' Apl?en-
observations of Mr. Macoun, and are contradicted al.so by ^is, vol. i,p. i46.
the photographs taken in 1892 when comi)ared with those
of 1891.

Mr. Stanley-Brown is quoted on this page of the United United states
States Counter-Case as saying: p.m'""'^'''"'

Dead pnps were as conspicuons by their infrequency in 1892 as by
their numerousness in 1891.

This gentleman, hoAvever, left the Pribyloff Islands on
the 14th August, 1892.

Dead pups were first observed to be numerous and i^ho- British Coim-
tographed on Tolstoi by Mr. Macoun 19th August; though |fi^;*^{!^^;i^P/;^^:
photographs taken 8th Angust by Mr. Maynard show that
large numbers of dead pups were lying on that rookery at
that date.

Mr. Stanley-Brown admits that in 1892 the number of United states
dead pups on this rookery was "beyond the normal." He ^^"y""*®''"^'*'"'' ^•
devotes more than a page of his afhdavit appended to the
United States Counter-Case to endeavouring to explain it,
in the manner already noticed.

• Colonel Murray, next quoted in the United States Coun-
ter-Case, says:

I went over the rookeries carefully looking for dead pujis. The Ibid., p. 378.
largest number on any rookery occurred on Tolstoi, but here, as on the
rookeries generally, but few of them were to bo seen as compared with
last year. 1'his was the hrst time in my four seasons' residence on the
islands that the number of dead pups was not greater than could be
accounted for by natural causes.

Colonel Murray gives no date. That his visit to Tolstoi
was before the date of the departure of Mr. Stanley- Brown
from the islands is evident, as Mr. Stanley-Brown, as above
noted, describes the mortality as beyond the normal.

Mr. A. W. Lavender's statement as to the practical page92.
absence of dead pups on St. George in 1892 coincides with ^ .^. , „

Ti,,, ", T , • mi • i British Conn-

Air. Macoun s observations. The same circumstance was cer-Case, Appeu-

particularly observed in the case of the similar mortality ''''^' ^°^'' i'-^^"-
in 1891. And such mortality is referred to in none of the te^cale^p^is.'^
aflBdavits in Appendix to United States Case which refer J^^■^^^J^^ q^^.
to St, George Island in that year. This circumstance, in missioners' Re-
ffict, strongly supports the belief that the mortality iu p«;t, para. 346 et
neither year could have been due to the killing of mothers
at sea.

B s, PT X 7

98 ARGUMENT OF GREAT BRITAIN.

Page 92. 119 Professor Evermanii's Statement, iioxt quoted in

tlie United States Counter-Case, as to the number
British Conn- of dead ])ups ou PoUivina rookery, refers to a visit made by
d^i^vo^■ifp.l45. '>i"» to that rookery early in the season (2L'nd July), in com-
pany wiiii Mr. Macoun. His statement of number seeyi at
that time practically agrees with that given by Mr. Macoun,
who says —

Ibid D 146 Professor Evermann, .... who was with me at this time, and

who counted 129 dead pnps, thon<jht, with me, that, if so many were
to be seen at the outer edge of the rookery-ground, the whole iium-
ber must be very ^''^'^t, and about a mouth later (20th August) I had
ample proof that this was the case.

Ibid. Mr. Macoun, however, further says that later in the sea-

son there were nearly or quite as many dead |)ups on Pola-
vina rookery as on Tolstoi; and a native who was with him
at the time of his visit told him that there were then more
dead pups on Polavina than were on Tolstoi in 18i)l.

Tjnited States Professor Evcrmauu made but this one visit to Polavina
DD"264-27f '*'*''' (-^-"d July). He visited Tolstoi rookery the following day
(L^yrd July), and hually left St. Paul Island (24th July)
more than two weeks before the time dead pups in con
siderable number were lirst noted on Tolstoi rookery.

Page 93. The statement made in the United States Counter-Case

to the effect that sealing-vessels were not present in Beh-
ring Sea in 1892, coincides with that specially adverted to
in tiie British Counter-Case (p. 213); but it is maintained
that the recurrence of a like mortality of pups in that year,
absolutely confirms the deduction arrived at by the British
Commissioners in 1891, that this could in no way be con-
nected with pelagic sealing; and that it therefore cannot
be interpreted in the manner now endeavoured to be done
in the Counter-Case of the United States.

The alleged increase, next afflrmed in the United States
Counter-Case, in number of dead pups on the Commander
Islands in late years, is not confirmed by Mr. Macouu's
inquiries on these islands made in 1892. No such increase
was admitted, by those on the islands, to have occurred,

^(;.*se^ A^*"en ^hough j)elagic sealing had then for the first tiuie been prac-
dix, voi.'i, p. 148. tised to a considerable extent in the vicinity of these
islands.

Pages 93, 94. 120 It is next stated in the United States Counter-

Case that —

the destructiveness of the Behring Sea catch, as compared with that
in the North Pacific, is further shown by the relative sizes of such
catches.

With the object of endeavouring to prove the assertion
just quoted, attention is drawn to certain Tables contained
in the Api)endix to the United States Counter-Case, com-
piled from statistics given in the British Commissioners'
Ei'port. In these Tables the annual totals of skins are cor-
rect, and the proportions taken within and without Behring
Sea are also correct, — the number of vessels is correctly
given in one instance; but, as the average catch per vessel
and per day for the total number of years has apparently
been obtained by the erroneous method of averaging the

ARGUMENT OF GREAT BRITAIN.

99

annnal averages given by the Commissioners, none of these United states
figures are correct. The following corrected Tables are counter- case,
therefore presented to take the place of those given in the ^^^"^"'^'^■p- '*^^-
United States Counter-Case:

Tables of Catches.
SPRING AND COAST CATCHES.

Year.

1?89.
18'J0.
1891.

Totals and averages for three years .

Number

Vess'els. of S^ins.

22 12, 371
29 21, 390

42 I 20,727

93 54,488

A verase
Number

per
Vessel.

562
7-J7
493

586

Average
Number
per Day.

4.3

5.4
3.6

B EH RING SEA CATCHES.

Tear.

Number

of
Vessels.

Number
of Skins.

Average
Number

per
Vessel.

Average
Number
per Day.

1889

16

23
44

15, 497
18, 165

28, 888

968
789
656

16.1

]8'.)0 .

13.1

1891

10.9

Totals and averages for three years. .

83

62, 550

753

12.5

121 But when it is attempted to deduce an average Pages 93, 94.

take per diem for each vessel from these figures,
several important considerations are lost sight of It is
particularly to be noted that the conditions are such that
the sealing voyages made to the south of the Strait of Fuca
in the winter and early spring would not in themselves be United states
remunerative. They are made because no other occupation Appo",uxV*p'jr.'
offers for the sealing- vessels, while a certain advantage is 246, 217.
to be gained by going early to sea, and thus securing the
pick of the pelagic liunters. The diagram facing p. 22 of
the British Commissioners' Report illustrates this very
clearly. The circumstances are furtlier explained in para.
5<S3, and in para. 132 of tlie same Report, where it is shown
that only the months of May and June are those in which
large numbers of skins have so far usually been taken out-
side Behring Sea. Thus, a daily average based on the
whole time during which a sealingvessel is at sea, of which
time some months are, as a rule, barely remunerative, does
not afJord any fair coni])arison of the number of seals taken
in a given number of days without and within Behring
Sea, nor of the "dcstructiveness" of the catch in the two
areas. Unfortuimtely, the methods of conducting the
industry have not enabled data to be obtained ui)on which
a comparative Table of monthly catches of seals at sea can
be drawn up.

The third proposition formulated by the United States
for rebuttal is:

Page 04.

100 ARGUMENT OF GREAT BRITAIN.

"3. That the waste of seal life resulting from pelagic sealing
is insignijicant.^'

Pages 94, 95. Statements collected by the British Commissioners, and
here referred to, which assert the enormous loss of seals by
pela<;ic hunters, form ])art of a general discAission of losses.
British Com-Tj^e British Commissioners explain that they have been at
port, pp. 82, 614. paius to coIIcct and examine all the statements npon which
a theory of great losses at sea have been based up to the
date at which their Report was written. They have sum-
marized these in para. 014 of their Report, thinking it bet-
ter to trace such assertions back to their sources, rather than
to depend on the rhetorical expressions of newspapers, &g.,
which afforded at the time the only other basis for the alle-
gations of extraordinary losses at sea.
Page 95. 122 In proceeding to set out the testimony of persons

who have actually engaged in pelagic sealing, the
British ^Com- Commissioncrs point ont that tlie interest of such persons
port, paras. 615- is a factor to be allowed for; but they also point out that
^2^- the statements are given over the signatures of those mak-

ing them, in a formal way, and are to be considered of " a
much higher order of accuracy" than those before referred
to. Advantage is, however, taken, in the Counter-Case
presented by the United iStates, of this critical remark on
the part of the British Commissioners, to designate the
evidence as that of " interested parties."

The assertion is next made in the United States Counter-
Case that —

the Commissioners then present [on the subject of losses of seals at
sea] a number of statements collected from inexperienced individuals.

A reference to the paragraphs of the Commissioners'
Report thus alluded to by the United States will show how
entirely incorrect the assertion as to "inexperience" is.
Page 96, It is scarccly nccessary to pursue in detail the discussion

of the facts respecting losses at sea, on this page of the
United States Counter-Case. A few observations may,
however, be made upon it.

In introducing their Table, showing the actual numerical
losses of seals by a number of sealers, the British Commis-
sioners do not say —
an endeavour was then made to "elucidate the question," &c.

The statement made is as follows :

British Com- It has been endeavoured, however, still further to elucidate the ques-
missioiiers' Re tion here considered by tabulating all the vrell-authenticated state-
port, para. 627. tnents referring to the actual number of fur-seals sliot, and the
proportion lost.

Again, the white hunters do not —

afiSriu that they lose but 4 per cent, of the seals they kill.

This percentage is a calculation based on the numbers of
seals shot and lost, or shot and recovered, as stated by the
hunters.

The affirmations as to the proportion lost are contained in

the preceding statements, with respect to the value of which

a remark made in the opening lines of para. 627 refers.

Tiie numerical statements here combined and tabu-

123 lated represent nearly 10,000 seals, and no criterion

AEGUMENT OF GREAT BRITAIN. 101

of similar accuracy had heretofore been offered on the sub-
ject under discussion. If any doubt remained, in view of
this Table, as to the small percentage of seals actually lost,
it is entirely removed by the still more extended Table of
the same kind printed in the Appendix of the British teJ^Case^'Appen-
Counter-Case. fs'e^"^' "' ^^'

It is here further stated in the United States Counter- ' '
Case that —

the Table entitled "White Hunters" is averaged, while the Table
entitled "Indian Hunters" is not, for the obvious reason that these
Indians appear to have lost twice as many seals as the tvhifes, which is
in direct contradiction of the statements quoted in the Report, &c.

The suggestion as to the reason why the Table entitled
" Indian Hunters " is not averaged is wholly incorrect. In
the first place, it includes but 380 seals in all, being a num-
ber too small to afford an average of much value; wliile, of
this number, 184 (taken by three witnesses) are stated to
have been secured without any loss. But as a matter of
fact, if a correct percentage be struck from this small
Table, it will be found that in taking 389 seals not more
than 14, or 3.6 per cent., were lost by sinking. The state-
ment made in the United States Counter-Case that these
Indians lost 8 out of every 100 has evidently been arrived
at by adding together the few percentages that are given
and dividing the total by the number of hunters, a method
clearly erroneous.

Building upon this error, it is next attempted to show,
that if Indians lose 8 (3.6) per cent, of the seals they kill,
the white hunters lose five limes as majiy, or 40 per cent,
of the seals they kill. In support of this Captains Warren,
Petit, and others, who say that Indians lose less than 1 per
cent, while white hunters lose about 5 per cent., are quoted;
but on referring to the affidavits made l)y these gentlemen, British Case,
it will be seen that the loss by Indians mentioned by them, [^''^'Tu^,-, j j"'" |i
refers to seals killed with the spear, and such losses are not states No. 2
properly comparable with those resulting from the use of Brf,i^'h (?„\„^^3:
the gun. The Table of losses by Indians presented by the signers' Keport,
British Commissioners shows their loss when using gjiQ^. ^pp*'^*1'^-p-22i.
guns.

Attention is then called by the United States, on the I'ageaz.
next p;)g'e of their Counter-Case, to the circumstance
that it is not definitely stated in each case by the British
Commissioners whether the seals lost are those lost
124 by sinking betbre recovery, when killed, or whether
such as may have escaped after having been wounded
are included. The available data were unfortunately not
sufficient to determine this with accuracy in all cases, but
in view of the statement advanced in the Case of the united states
United States, to the eflect that (i6 per cent, of all seals Case, p. loe.
killed are lost by sinking before recovery, the element of
uncertainty thus introduced it too minute to be of impor-
tance. As it stands, the Table is sufficient to show that
the statement made on this subject in the case of the
United States is wholly incorrect.

In later statements of sealers care has, however, been Bntiah coua-
taken to separate the two sonrces of loss above allnded to, tUx, vof. ii.'p'e!
and in eliminating the loss due to the esca^je of wounded

102 ARGUMENT OF GREAT BRITAIN.

seals, that resulting from sinking alone becomes reduced
(on a much larger number of seals) to about 3.1 per cent.
See remarks iu A further reference is then made by the United States
Caiefp. m'"^*^'^^'^ ^^^ omission by the British Commissioners of any sta-
tistics respecting tlie loss of wounded seals which may
escape capture. This is a subject upon which it is evi-
dently imi)ossible to obtain precise figures. The Commis-
sioners' reference in this connection to the number of shots
found in seals killed upon the Pribyloft' Islands is next
criticized. It is said :

Page 98. The notion that the carcass of every seal killed on the islands is

searched for encysted bullets is sufficiently absurd, but it seems to be
assumed in the reasoning of the Commissioners.

British Com- It will, howevcr, be found, on referring to this allusion
port, parr628^^ by the Commissioners, that allowance was made for the
causes referred to by the United States.
British Conn- III later Statements published in connection with the
tercaso, pp.192, j^^.j^j^l^ Couutcr Casc, carc has been taken to obtain all
information possible on the subject of seals shot and
wounded, and which escape; and though, as above noted,
dix^'voi fi^^pp'^^ ^'^ ^ subject not susceptible of accurate numerical treat-
ii-i:;. ' nient, the number so lost is found to be exceedingly small.
tefc'ise'^ coun- Still further, as stated'in the British Counter-Case, it is
ase.p. . ^^^ known that the loss of a certain proportion of wounded
wild animals has ever previously been advanced as a reason
lor the disuse of the gun as a means of taking such
animals.
United states 125 Mr. Towuscud, who was attached to the steamer

Ap^Hmiix^'^pp' " Corwin " during the summer of 1892, volunteered

39i,2io. ' " to act as seal-hunter, and is quoted in supi)ort of the asser-
tion made by the United States, that the number of seals
lost by wounding is great. His expeiiments as a " pelagic
sealer " are too few and too unskilled to afltbrd any useful
evidence on the subject.
Ibid., p. 395. j^ part, at least, of Mr. Townsend's loss by wounding is
accounted for when he says, referring to the wounded seals
which escaped :

At first I blamed the ineffectual firing of the cartridges, but the
cartridges proved all right as soon as I learned to aim at the head,
and not at the animal as a whole.

^^ihid., p. 208 et ^j^ analysis of Captain Hooper's Keport, and the Table

accom])anying it, shows that between the 27th July and

the loth August, when one of the seal-hunters carried by

Cmffl to^r'^cVs^e'' ^^^ " t^orwiu " was iu Unalaska, and the other was unwell.

Appendix, vol. i] Mr. Townscud and a quartermaster acted as hunters and

^■^''^' took eighteen seals, losing four by sinking. These four

were killed from the dingy, a small, clumsy ship's boat, in

no way adapted for seal hunting, in charge of a man with

t^.'"^)'','!.!! v^?.?,"?" one day's exi)erience as a seal hunter. Between the 10th

ter Cii.se, Appen- .71

dix, voLii.p. 134. August and the 21st August eighteen seals were captured
by Hodgson the seal-hunter; in taking these he h)st but
one by sinking, of which he says: "That one I shot at a
long distance, from 45 to 50 yards." Five other seals were
taken during this time, but by whom is not stated, i)resum-
ably by Mr. Townsend or the " quartermaster," and one

ARGUMENT OF GREAT BRITAIN. 103

was lost by sinking. Captain Hooper then says: "Oar

total loss by sinking and wonnding was 36 per cent." But

in what way a knowledge was gained that any seals were

seriously wounded, or wounded at all, and so lost, is not

stated. No reference is made in the United States' Conn- c|^"ut^,.^*^*s^e

ter-Case to the sealing operations carried on by the United Appendix, p.'234.

States ship "Kush" during the month of Angust, wliich

resulted in the taking of seven seals, with none lost by

sinking, thongh Ave were reported to have been wounded;

how this was known is not stated.

In view of such statements as those above noticed, the ^^s^^^'
United States here sum u]) by denying — (1) that the per-
centage of female seals in the pelagic catch is not large;

(2) that pelagic sealing in Behring Sea is not as
126 destructive to seal life as in the North Pacific; and

(3) that the waste of life resulting from pelagic seal-
ing is iusiguificaut.

" Second."

"Matters upon which the Eeport relies to estab-
lish Conclusions advanced therein, and to for-
mulate the Kegulations recommended, which
matters have not been dealt with in the case
OF THE United States."

"Habits of the Fur seals."
"1. That the Alaskan Seal-herd has a definite winter habitat.''^

The title above quoted, given to this section of the Pageioo,
United States Counter-Case, which is stated to be in dis-
cussion of a proposition conveyed in the Report of the
British Commissioners, contains the ex])ression "Alas-
kan seal-herd," which it has been pointed out in the British British Conn-
Counter Case is in its terms wholly misleading, and is notter^ase, p.ii9.
admitted as an appropriate name for the fur-seals of the
eastern part of the North Pacific.

It is to be noted that the migration chart (No. 3) origi-
nally i)resented with the United States Case is incorrect,
as is shown by the changes introduced in the new chart
now substituted for the first in the Counter-Case of the
United States. This latter chart approximates more nearly
to that originally presented by the British Commis<ioners,
but in the light of evidence obtained by these Commission-
ers and that afforded by additional facts set forth in the
British Counter-Case, it still requires further correction.

It is i)articularly to be noted, that neither the migration
charts produced by the United States is vouched for by
any scientific or ex])ert authority. They are said merely
to be "compilations based on evidence," &c. Though both
charts (with other maps contained in the United States
Case and Counter-Case) bear the signature of T. C. Men-

104 ARGUMENT OF GREAT BRITAIN.

denhall, Superintendent of the United States' Coast and

Geodetic Survey, this is purely formal and is attached

Pa-'eioo. 12^ ^® ^ matter of routine to maps issued from the

Department in question, and not as in any way

vouching the accuracy of the data from which the maps

are compiled.

In this respect, the map prepared and presented by the
British Commissoners differs widely. It is explained and
adopted by them in their Report as correct to the best of
their knowledge and belief. As the British Commissioners
make themselves thus personally responsible for their
map, the remarks made in the United States Counter-Case
as to the absence of detailed evidence upon which the map
is based are not justified.
Page 101. The iDCculiar method of argument employed in the United

States Counter-Case, by which any deduction arrived at
by the British Commissioners is characterized as a " theo-
retical proposition" or "position," and is discussed before
the facts obtained are noticed, is again well exemplified on
this page.

It is thus under this head, in the first place, asserted by
the United States that —

the theoretical proposition of an auimal possessing two homes is contrary
to what has been observed in respect to the habits of animals in
general.

British coun- As to this propositiou, it is only necessary to refer to the
er- 'ase, p. 152. interesting statement on this subject made by Dr. Merriam,
one of the United States Commissioners, writing as a natu-
ralist; and it is confidently affirmed that no unprejudiced
naturalist w^ll be found to deny the existence of two
"homes" in the case of a regularly migratory animal.

Dr. Merriam's remarks, here particularly referred to,
relate to migratory birds, the analogy between which and
the fur-seal has been clearly pointed out by Professor
Yomber^i^s'g.''^" Augell. If the " home" of any animal be merely its breed-
ing resort, any rights which may be supposed to flow from
the possession of su(;h "home" would rest in the case of
many of the migratory birds, (and particularly of the
economically important water-fowl) of North America,
exclusively in Canada.

If, again, the term " home" be considered as equivalent

to that of "habitat," as technically employed by naturalists,

it will be found that the most trustworthy and eminent

authorities are united in defining the habitat of a

128 migratory animal as including the whole of the area

over which it normally ranges.

The statement made by the British Commissioners, as

the result of their investigations, in respect to the summer

and winter "homes" of the fur-seal, is next found fault

with because the names of their informants are not spe-

British Com-ciflcally detailed. A reference to the British Commis-

pJrt,"'pa*ral n5- sioucrs' Rcport will show that they have given, in what is

187. believed to be sufficiently great detail, an account of the

evidence upon which the "winter home" of the fur seals

has been defined by them. It is not true that the names

of their informants are not given. A number of these

ARGUMENT OF GREAT BRITAIN. 105

informants are named, and the detailed statements of some
of them are iiiehided in the Appendix to the Heport. The
facts, ascertained in interviews with natives along the
coast, are given in abstract.

On the part of Great Britain, no such impntations are
made respecting the basis of the migration-maps offered
in the Case and Counter-Case of the United States. It is
in fact believed that the errors occurring in the first, and
those which still remain in the second, editions of this
map are due merely to imperfect information, and a refer-
ence to the data upon which these maps are constructed
fully bears out this belief.

How the statement can be made on this page of the
United States Counter-Case, that the British Commis-
sioners "entirely overlooked" the important fact that full-
grown bull seals are not found to the south of the 5Uth
parallel, is inexplicable. This fact was ascertained as the
result of their own investigations. It is clearly set forth
in para. 193 of tlieir Keport, and characterized there as a
" noteworthy and interesting fact."

The further statement that the Commissioners do not
anywhere state —

that they ever heard of a full-grown male below the 56th parallel,
the assumed northern limit of the winter habitat which they have
created,

is broadly incorrect, as a reference to the Report will show. British com
As the line drawn on the new migration-chart now offered po^tT panil r72-
by the United States to represent the southern limit of tbe isi^- '
range of full-grown males is not supported by any evidence, ^^^ ^^^'
it aj)pears unnecessary to follow the argument based on

this, and on the erroneous statement just referred
129 to; but it may be pointed out, that even on the incor- page 102.

rect assumption made, *. e., that full-grown bulls are
seldom seen south of Baranott' Island, and that the "win-
ter home," referred to by the British Commissioners, is
therefore not that of the full-grown males:

1. That this does not assist the further assertion made
to depend on it that such males have no "home" but the
Pribyh)ff' Islands; and

2. That whatever rights may flow from position, prox-
imity of territory, or food consumed by the fur-seals, may
be held equally on animals of either sex or any age, the
number being the principal consideration, particularly in
respect to the consumption of food fishes.

Stress is laid in the United States Counter-Case on the Pages 102,103.
fact that sealing is conducted to a certain extent south-
ward along the isTorth American coast, as far as California,
and it appears to be considered that this fact invalidates
the migration-map printed in the British Commissioners'
Report. An examination of this map and of the Report British com-
will, however, show that it has been fully recognized, and n'i««i""erH' Re-
was considered and particularly mentioned by the Commis- am/ 'pMa8T''582^
sioners. It was very clearly not the purpose of the Com- 596.
missioners in this map to indicate the whole vast region of
ocean which might at any time be resorted to by any fur-
seals, but to distinguish and make plain, as the facts

106 ARGUMENT OF GREAT BRITAIN.

obtained by tliem enabled them to do, tlie principal resorts

of the fur-seal at various seasons, and the main routes cov-

Bntish Coun- ei ed during its migration. Further evidence since obtained

^er<jase, Appen- i^ginjg fully to confiim these main facts as represented in

43-i;i9° ' "' ^^' the migTation-maj) of the British Commissioners.

United states It will further be remembered, that in the Case of the
Case, p. 129. United States, evidence is brought forward to show that
the Californian fur-seal is an animal wholly different from
the northern fur-seal proper; while the British Commis-
sioners, though not aware of the conclusions at which Pro-
dix! ^^ol i, p?406°' f'L'Ssor Allen was about to arrive on this subject, have
British Com - themselvcs independently recordcd their belief that thefur-
"ort'^paras ^'oo ^^'^^^^ uotcd as breeding on the Californian coast could not
191. ' ' ' well have taken part in the main migration.
Page 104. The statement made on this page of the United States

Counter-Case, and based on evidence quoted by the British
Commissioners, that Captains Kelly and Petit have followed
the seals "along" the British Columbian coast, has
Page 104. ijQ nothing to do with the subject under discussion, for it
is fully understood and explained in the British Com-
missioners' Report that a northward movement sets in
among the seals in the spring.
The further statement that —

the distribution of tlie Alaskan seal-herd is mnch more scattered dur-
ing the wiuter months than is implied by the Keport, and tlie range
of position of the herd is much further south and west than appears
on the Commissioners' chart of migration,

shows merely a misconception of the nature of these state-
ments and of that chart. No chart, map, or diagram si 'ow-
ing the result of observations of natural phenomena, such
as those df migration, winds, rainfall, &c., in a general
way, is so framed as to include all exceptional cases.

It is of interest to note, by the statements made on this
page of the Counter-Case, that the United States — twenty-
live years after having come into possession of Alaska —
have in 1892 for the liist time taken some measures to
ascertain the migration routes of the fur-seal; and though
the investigations thus carried out by Captain Hooper, in
a single vessel, do not afford evidence of a character com-
parable with that obtained by the British Comuussioners
from the numerous pelagic sealers and the native peoples
inhabiting the coasts, they, nevertheless, i)ossess some
l)oints of interest.

These investigations are referred to in afoot-note to tliis
page of the United States Counter Case, and it will be
found on consulting Captain Hooper's Keport, in the Ap-
pendix, th it wherever he speaks of actual observations,
his statements are in accord with those of the British Com-
missioners. He thus writes:

United States But a small part of the entire herd goes to the coasts of California

Coiinter-Ca.so, and Oregon. Mann seals reach the coast further north, some of them

^2^370 ^^ coming out throngli the passes, but going no doubt direct to the coast

' ' of Washington, and eren further north. In 18S(5, during a passage in the

United States revenue-steamer "Rush," Irom Puget Sound to i na-

laska, where we arrived on the 19th Jaunai-y, I saw fur-seals nearhj

enery day, the ve.ssel having passed through the herd tlieii on its

migration from the passes to the coast, and extending entirely across

the J'acific Ocean,

ARGUMENT OF GREAT BRITAIN. 107

Captain Hooper does not state whether the voyage
referred to was made outside or inside Vancouver

131 and the Queen Charlotte Ishmds, but in either case ^^s® i"*-
his observations accord perfectly with those depended

on by the British Commissioners.

He further states, in two places, that the arrival (or co^"'/^®^.^^'*^**^
appearance) of seals upon the coast is directly related to, a i;p<i"iix, pp!
that of the coming of the smelts, herring, and ulachan. "^^liHilih com-
This statement may be compared with those made in tlie™'*^'""®''^' f<e-
British Commissioners' Report, and in the British Counter- 22I 223!''^*^'
Case, with which it fully accords. teSf paX"

As the statements made by Captain Hooper appear to
be relied upon by the United States in connection with
that part of tlie migration route of the fur-seal which lies
to tbe south of the Aleutian Islands, and to have been
employed in the construction of the revised migration-map
presented with their Counter-Case, it may be interesting united states
to note that Captain Hooper in 1892 left Unalaska on the'i°;|;;,[,^i^^''y^:
10th November, and arrived in San Francisco some time 2-«, ^^3.
before the 21st November, when his Keport was made. On
the passage he saw but two seals.

Captain Ferguson is, however, also quoted to express his ^^s^ ^o'-
belief that there must be an "immense feeding-ground" of
fur-seals between latitude 40° and 42° north and longitude
172° and 135° west. He saw no fur-seals there himself,
but quotes the reports of vessels (not named) which are
stated to have seen seals in this region. From the evidence
printed in the British Counter-Case, it is very probable that , Bntisii conn-

t6r-(_/isfi 1)1) 13T

Captain Ferguson may be correct in his conjecture that a 138. ' '*^' '
certain or even a considerable number of fur seals may
often be found in the region specified, but this in no way
aflects the general facts as to the migration of the main
bodies of the seals of the North Pacific. So far as it goes,
it assists to bear out the evidence relating to the inter-
mingling of the seals of both sides of that ocean during
the winter months, and also the statements as to the essen-
tially pelagic habits of the seals.

The "data collected and mentioned above" are those
just referred to, and their extremely scanty character fully
justifies the doubts expressed as to the trustworthiness of
some of the indications of the new version of a migration-
map presented with the Counter Case of the United States.
It must be explained, tliat the criticism thus made

132 is not directed to all the indications of tlie map; but
it is confidently maintained that no substantial evi-
dence has been adduced to verify that i)art of these indi-
cations which shows the fur-seals, after having h*ft the
territory of the United Stales on the Pribylolf Islands,
navigating in a body directly to that part of the west coast
of North America wliicli is coini)rised in the territory of
the same Power to the south of the Canadian coast.

It may also be noted, that no atteni|>t is made on the map
in question to show the general distribution of the seals in
Behring Sea and along the Aleutian chain during the sum-
mer months.

In this connection it is further important to observe, that
on another maj), which purports to give details respecting

108 ARGUMENT OF GREAT BRITAIN.

seals observed by crnizers in Beliring Sea in 1802, an im-
portant error has occurred, in consequence of wliicli seals
seen in three i)laces west of the 180th meridian have been
placed at corresi)onding distances east of that meridian (or
in west instead of east longitude). The error is more
important having regard to the small number o£ cruises
made to the west of this meridian. The observations re-
ferred to are those of the " Yorktown." No notes are given
respecting cruises made to the west of the 180th meridian
in the same year by two other United States' vessels, the
"Ranger" and the "Mohican."

The logs given in the Appendix (])p. 400-408) cover but a
small part of the cruises shown on Chart IV of the United
States Counter-Case.
United states The eighty affidavits of natives collected by Captain
Appendix, p! 228'. Hooper iu the Aleutian Islands, while engaged in. investi-
gating the range of the fur-seal, though these would be of
material interest, have not been produced by the United
States.

"2. That the Alaslmn Seal-herd has changed its habits as a
result of disturbance on the breeding-islands and of pelagic
sealing.''^

p.^ge 106. As in previous cases, the discussion of the evidence and

conclusions of the British Commissioners given under this
head is introduced by imputing a motive to the Commis-
sioners. They are represented as assuming a position, and
thereafter endeavouring to support it. The evidence and
facts adduced by them are, however, fortunately, not thus

affected.
133 In dealing with the subject described in the head-

ing above quoted, which nearly corresponds with
that discussed by the British Commissioners under their
chapter, "(O.) Changes in Habits of the Fur-seal in recent
years,^^ a selection is made of some of the points taken up
in that chapter, for reply, while others are passed over
without notice.

The subject is further subdivided in the United States
Counter-Case into two subordinate sections, denoted (a)
and (b) respectively. The first of these includes mention
of the Table of catches per man and boat given on p. 74 of
the Commissioners' lieport, of the degree of connection of
seals found in Behring Sea with the breeding-islands, of
the increased pelagic nature of the seals owing to disturb-
ance, and, singularly enough, of the question of the taking

British Com- of "stagcy" scals at sea, which is referred to in another
port, para. 281. part of the British Commissioners' Report.

The Table just referred to, constitutes only a part of the
evidence showing that no decrease in seals has been
observed at sea in late years. In paras. 403-405 of the
British Commissioners' Report, abstracts of statements
covering much experience, and a considerable number of
years, are given. Neither is any mention made by the
United States of the relative effects of tlie increasing wari-
ness of the seals and growing experience of the hunters.

ARGUMENT OF GREAT BRITAIN. 109

On both these snbiects mncli additional evidence is now, ^ritisii conn-
available, and tins is entirely oonhrniatory or the g'eneral niKi Appendix,
statements made by the Commissioners. la-iou^^" ^^"^'"'

In respect to the Table, the complaint is made that it
inclndes but five years — 1887-91. But, for all practical
purposes, these later years are the most important, and
offer the best test of the matter under discussion. A]>art
from the changes introduced by increasing wariness of seals
and growing skill of hunters, other important changes in
methods have occurred concurrently with the growth of
pelagic sealing. The number of vessels in these years was
also larger: and for tliis reason, and those above alluded
to, the years in question appear to afford data of a more
nearly comparable character. Neither could it be known
to the Commissioners that the United States would in their
Case fix on the year 1885 as being that of the beginning
of a decrease in the number of seals. As the data,
134 so far as they exist, for the whole period of pelagic P"geio6.

sealing, are given in the Appendix to the Eeport, the
suggestion of a wish to conceal the facts for 1885 and J 886
Las no validity.

As the number of boats engaged in the fishing in 1885 is Pageio?.
not knoAvn, it was naturally impossible to present the aver- British Com-
age number of seals per boat taken in that year, while in Jlort'' Tppendi^
188G several of the sealing- vessels were seized in Behringi'- 2o9-
Sea, and as there was no record of the number of seals
taken by such vessels there, and any averages based on
the total catch of the fleet must be inaccurate, they were
omitted.

A singular train of reasoning is next entered into in the Pageios.
United States Counter-Case to justify the production of
new Tables, based on the British Commissioners' figures;
but in which these figures are separated and so manipulated
as to show a decreasing -'coast catch," with an increasing
catch in Behring Sea. If the statements urged in the
above argument — to the effect that the sealers only in later
years became conversant with all the resorts of the seals —
are correct, they aftbrd an excellent reason for the restric-
tion of the Commissioners' Table to these later years.

In the Table printed on p. 411 of the United States
Connter-Case, 3,565 is given as the number of skins taken
on the "coast" in 1891, and this is made to correspond with
the "si)ring" catch of earlier years. The fact that fourteen
vessels are shown in the British Commissioners' Table to,n,^"|;',^)^i.gPii";
have transhipped their skins at Sand Point, but to havepon, p.205.
made no return for the coast catch, is ignored in the prep-
aration of the Table in the United States Counter-Case.
These vessels had taken 6,364 skins before they reached
Sand Point, a great many of which were taken on the
"lower" or soutbern coast, and if this number were deter-
minable it should be added to the number, 3,565, used in
the Table appended to the United States Counter-Case.
The fact is that many sealing-vessels, after a short cruize
to the southward of Cape Flattery, return to Victoria to
refit, and there discharge their skins. These vessels con-
tinue sealing along the British Columbia coast, and that

110

ARGUMENT OF GREAT BRITAIN.

part of tlieir catch taken on this portion of tlie coast should
also be included under theheadiiig " si)riiig catch " or ''lower

coast" catch in the Table refeired to. It is thusevi-
I'ageioa. 135 dent that no proximately accurate separation can bo

made of the "coast" and "spriiio" catches, and that
any Table prepared for the puri)()se of shoAving the average
catch per vessel or per boat, should include all the seals
known to have been taken south of the Aleutian Islands.
This has been done in the Table given below. Accuracy is
cl;)imed for the years 1889, 1890, and 1891 only, but in order
to show how misleading the Tal)le printed in the United
States Case is, the years 1886, 1887, and 1888 have also
been included in the Table.

The explauation offered for the inclusion of but one part
of the "coast catch" in the Table presented in the United
States Counter-Case (p. 411) is that "prior to 1889 the
so called 'coast catch' did not im-lude skins taken north of
Vancouver Island, and it therefore corresponds to the
'spring catch' in the Table for 1889, and following years."
The British Commissioners are quoted as the authority for
this statement; but on turning to their Eeport (p. 211), it
will be found that what they really say is very ditVereut
from what is attributed to them :

The Behriiioj Sea catch for tliis [1888] and previous yeai's inchidea
a certain number of skins tal<en on the coast of British Columbia, to
the north of Vanc(mver Island, the schooners having no opportunity
of landing the skins before entering Behring Sea.

It is thus evident that the exact number of skins taken
on the "coast" i)rior to 1889 cannot be determined, but an
a|)j)roximate estimate may be obtained by adding together
the total of the catches made on the coast in 1889, 1890,
and 1891, and ascertaining what proi)ortion they represent
of the total catch for these years. It is by this means
found that the number of seals taken on the "coast" rep-
resents 40.0 of the total number taken in 1889, 1890, and
1891.

In the Table given below 46.6 per cent, of the total catch
for each of the years preceding 1889 is assumed to have
been taken on the coast, this being the best avaihible means
of forming an estimate for these years:

136 Tcir.

Number

of
Vessels.

Total
Catch.

Coast
Catch.

Average

per
Vessel.

Numb, r
of Boats
and Ca-
noes.

Average
per Boat
or Canoe.

1880

16

17
20
22
30
43

24, 344
20, 266
24, :i29
27, 868
39, .'347
49, 615

11,344
9, 444
11, 3:i8
12,371
21,390
20, 727

709
555

567
562
713
482

101
123
165
179
246
327

113.3

1887

76.8

18S8

68.7

1889

1890

18'J1

69.1
86. 9
63,4

Page 109. The statement is made on this page of the United States

Counter-Case, that the British Commissioners —

assert that the seals found in Behring Sea are not seals which have
teni])orarily left the rookeries to feed, but are practically independent
pelagic herds.

ARGUMENT OF GREAT BRITAIN. Ill

Ou reading tlie paragraph of the British Coniinissioners'
Eeport referred to (para. 219), it will be found tliat the
Couimissioueis' statement is not intended to apply to all
the seals in Behring Sea, and fuither that the concluding
expression is not that employed above, but — para"2rr^ ^ ^'^

practically independent pelagic schools of a diffuse kind,

an expression conveying a different meaning.

Moreover, the mention made in this particular ])aragraph
of the Commissioners' Keport, is one oidy incidental to a
discussion of the possible bearings of the direction and
force of the wind on the direction of travel of the seals in
the eastern part of Behring Sea.

Neither is it true, as is next asserted, that the results of
these observations are the only evidence offered on the
independence of a large number of the seals in Behring
Sea of the breeding-islands, as a perusal of paras. 209-2:i2
of the Commissioners' lieport will show.* Additional facts,
with the same meaning, have subsequently been observed British Conn-
by JMr. Macoun. dix, vol. i, p. u5.

It is further stated in the United States Counter Case,
that the "alleged observations" of the direction of the wind
"are not givtn, and, even if true, are quite too slender to
furnish a foundation for any conclusion." It is true that
the detailed logs transmitted to the Meteorological
137 Department of Canada for analysis are not printed Page 109.

in full in the Eeport, but synopses of the results British com-
obtained by such analysis are given on the face of the maps pl,'rt"'Maps m
towhich they refer. If the UnitedStates seriously entertain andiv.
doubts as to the existence of the observations, they can be
submitted for their inspection.

The assertion nexi nuide, that the British Commissioners
advance no proof of the increased pelagic natnre of the
seal, is incorrect, as will be found on examining paras. 397,
412, 421, 1 83-185, 205-207 of their Report. The lact, stated
by them (para. 402), that no decrease has been noted in the
number of seals at sea, though the number frequenting tlie
islands has decreased, is of itself sufticient proof of the
increased i)elagic nature of the seal.

As to the nonoccurrence of "stagey" or "shedding" rages loe, 107.
seals at sea, the Commissioners may be assunied to have
based their statement on the best evidence available to
them. Its nature is exjdained in paras. 281, 031, 032 of BriHsh coiin-
their Report. More complete evidence will be found on dfx,^\^L ii/p?4B
this point in the statements appended to the British «'*«9'-
Counter-Case.

It is a fact generally recognized, that fur bearing animals
living much in the water, such for instance as the otter and
beaver, shed their pelage by degrees, and not so markedly
at any one time as to seriously affect the value of tiieir
skins. The same fact is believed to explain the ahsonce of
"stagey" fur-seals at sea, while the creation of a markedly

*See also Captain Bryant, in "Mouograph of North American Pin-
nipeds," p. 411, quoted in British Counter-Case, Appendix, vol. i, p. 126;
and Veniaminov in Elliott, Census Keport, p. 141.

112 ARGUMENT OF GREAT BRITAIN.

British Com- "stagey" coiulitioii is supposed by tlje British Connnission-
port,"i)a'rL^ 134. ci's to occui' duiiiig, tiiid ill coiisequeiice of, tlie continued
resort of a portion of the seals to the land. It is gratify-
ing to observe that in this one instance the explanation
olfered by the British Commissioners is acce])ted as correct;
but the ensuing deduction, that "a seal must, therefore, of
necessity be on the islands each year at some period," is a
lion sequitur of the most apparent kind. The proof is, in
fact, exactly to the opposite effect, for if all the seals must
resort to the islands, and must remain there during the
Britisii Com- '"stagcy" scasou, then no seals should be found at seadur-
pon,'para''28f.'' in? that scason. The "stagey" season begins about the
Elliott c n'i'l<ile of August and lasts for some six weeks. Thus,
Report, p. 46^"^ according to the argument advanced by the United States,
"Mom)frra*ii ^o" ^'^ scals sliould bc fouud at sea from the middle of

North American 138 August up to and after the 15th September. Tliis
410."^^'^*^^'^' is, however, wholly negatived by the known facts

Pages 106, 107. relating to i)elagic sealing.

But not content with the clearly cut position just out-
lined, the United States further endeavour (and in opposi-
tion to it), to prove that "stagey" skins in large quantity
states c°nn*er^- ^^^ takcu ut sca. Affidavits on this subject are produced
Case, Appendix, froiu Mcssrs. C. Behlow, W. Preiss, and W. E, Martin.
pp. 357, 376, 384. ]yjgggj.s. Bchlow and Preiss say that all skins taken in
Behring Sea after about the 10th August are "stagey"
and "almost unmerchantable." The statement thus made
is so sweeping and so entirely in opposition to other evi-
dence as to defeat its object. Sealers would not remain
in Behring Sea after the 10th August for the purpose of
obtaining, at much cost and labour, skins "almost unmer-
chantable." Mr. Martin is more judicious; he speaks only
of a certain percentage of "stagey" skins, without stating
any amount.

Page 109. The second section (b) of this part of the argument in

the United States Counter-Case is devoted to the denun-
ciation of a heresy expressed as follows in that Counter-
Case, and attributed to the British Commissioners:

That the location of the breeding rookeries is rlependent solely upon
the fact that the seals while there are not disturbed by man.

It will be found, however, on referring to the British

Commissioners' lieport, that the statement here made is

not theirs, but one embodied for the purposes of attack in

the United States Counter-Case itself.

mi^sioners^ '\il' ^^^ Commissioucrs believe the freedom from disturbance

port, paras. 31^ aiid attack to be tl^e principal or ruling cause, but not

^^rltisr^coun- *^'^ ^^^^ causc, of the resort of seals to any parti cnilar i)lace

ter-case, p. 146. at the breeding season. The subject is, moreover, further

treated in the British Counter-Case.
c?unte c**^*'^ ^^ ^^ ^^^^' ^if>wever, in the Counter-Case of the United
pp°i4s-u8! ^^^' States attempted directly to controvert the above state-
ment, even in the form in which it is presented in tliat
document; but in discussing it, attention is turned to the
records which exist of former breeding-places of the fur-
seals in the vicinity of the North American coast
139 to the south of the Aleutian Islands. Keference is
made to some of the statements on this subject con

ARGUMENT OF GREAT BRITAIN. 113

tained iu the Report of tlie British Commissioners, and British c om-
it is then stated that the Commissioners have failed to pJrt par^. 447-
authenticate these. This alleged "failure" must of course ^^^^'^2;^,^^24.^^^'^^
remain a matter for decision on the evidence produced, * ^^ ^^^'^'
but the additional information obtained in 1892 respecting
Haycock and other islands and rocks, with that relating to . .
the taking of female seals in milk ofi" various parts of theter-case.^Appeu-
British Columbian and Alaskan coasts to the south of the ^'|^^oi- J- pp- i35,
Aleutian Islands, go for to reinforce the already strong
body of evidence on this point adduced by the British
Commissioners.

Attention is then, in the United States Counter-Case, g^fL^^^xj^x
directed to the statement made by the British Commis- couliter-case^
sioners, on the basis of information gained by them on the ^pp*^"*^^' p- ^'^'^■
Commander Islands and at Petropavlovsky, as to the for-
mation or attempted formation of new rookeries at various
places on the Asiatic coast. Mr. Malonavonski is quoted
as having visited one such reported rookery on the Kamts-
chatka coast, and as having found the animals there to be
sea-lions and not fur seals. Upon this single inconclusive
statement the following remark is made:

If all the iucipient breeding rookeries alleged to exist on the Asiatic
coast were examined, doubtless they would be found to be similar to
the one above noted.

Mr. Grebnitzky is cited to the effect that he thinks it to
be wholly improbable that the Commander Island seals
visit any other land, but it will be observed that though
the United States took i^ains to obtain a written statement ibid., p. 303.
from this gentleman, for the purpose of counteracting his
statements as quoted in the British Commissioners' Eeport, iwd., p. 362.
he has not iu this document contradicted his specific refer- m^"oners'^ii™i
ence to the formation of a new fur seal rookery on the p^rt, para. 519.
Kamtschatka coast.

Tiie great importance evidently attached by the United
States to the denial of the evidence showing that tha fur-
seal on the Asiatic coasts has sought and found new
breeding-places, evidently depends on the circumstauce
that this evidence tends to substantiate the less com-
140 plete details respecting the existence of such breed-
ing-places (other than the Pribyloff Islands) on the
coast of I^orth America.

On the strength of the above imperfect discussion, and
the inconclusive negations above outlined, it is then denied
on the part of the United States that the —

Alaskan seals have any other home than the Pribyloff Islands, and
that, even if constantly disturbed by man while on the rookeries they
would seek a new habitation.

The denial above summarized is not only contrary to all
natural facts, but bristles with ambiguities. If the term
"Alaskan seals" means only the seals breeding on the
Pribyloff Islands, it may readily be admitted that they have
no other breeding-place. If the breeding-place is the only
"home " of such seals, it of course follows that this " home " x
must be on the Pribyloff Islands. But the use made of the
term "home" is a purely conventional one, and thus, if the
territorial possession of the "home" is supposed to imply
B s, PT X 8

114 ARGUMENT OF GREAT BRITAIN.

some proprietan'riA'bt in tlie seals tbeinselves,it is a wholly
misleading one. " What ''habitation," as distinguished from
'■'■ home," may imply is not explained.
Page 111. The reference next made on this page of the United

te?^caifApi"n- States Counter-Case to Kobben Island audits rookeries,
rtix,voi.'ii,i'i>-^9, i-eiiders it appropriate to point out that in the very years
^^^' in which this i.sland was being continnously harassed by

raids, the seals began to form new rookeries in other suit-
able places. It is of course impossible to state that they
were actually the same far seals which had formerly resorted
to Kobben Island, but the presumption is in favour of that
belief.
Ibid., pp. 34. 35. In 1892, evidence of the most conclusive kind possible has
been obtained on this ]iarticular subject, relating to the
formation or attempted formation of new rookeries on Moo-
shir Eocks, Eaikoke Island, and Shed-noi Island of the
Kurile group. Bittern Hocks oif the north-west coast of
Nipon Island, and on the Island of St. Zona in Okhotsk Sea.
It is thus no longer necessary to deal with the discussion
of abstract propositions on this subject of the change of
breeding-places, to which we are invited in the Counter-
Case of tlie United States.
141 Occasion is next taken on this page of the United

States Counter-Case, to contradict or modify the
evidence of one witness out of three quoted in para. 422
of the British Commissioners' Report, in which it is stated
that, concurrently with the beginning of the United States
control of the Pribyloft' Islands (and presumably because
of the excessive slaughter occurring at that time), fur-
seals were found in more than usual abundance on the
coast of British Columbia; the evidence adduced being
such as to show the injurious effect of disturbance on the
breeding-islands.
United stales The matter has been considered to be of so great impor-
App^endixpp'lliV.tauce by the United States, that Professor J. A. Allen has
written a special letter to the United States Secretary of
State, to say that the year should have been 1870, and not
1869 (as stated in his Monograph), in which seals were spe-
cially abundant on this coast. Instead of weakening the
force of the Commissioners' statement on this point, the
correction given strengthens it, and fully accords with the
evidence obtained by the Commissioners from other sources.
There is no reason to suppose that the excessive disturb-
ance on the breeding islands, which reached its maximum
British Com- in 1808, was couliued in its effect to the next year. The

missioners' Re-,. ' . , ,, ^ .. -^^.i j.ij.

port, Diagram diagram givcii by the Commissioners, m lact shows that
parai^44 809.'^^'^"^^'^ greatly increased Indian catches along the British
Columbian coast actually occurred in 1870 and 1871.

U3

APPENDIX TO ARGUMENT.

No. 3.

BemarJcs on the United States Evidence.

Any detailed criticism on tlie United States evidence must, of neces-
sity, Jbe reserved for oral argument, but there are some observations
bearing- upon the character and reliability of sucli evidence which it is
deemed j)roper here to put before the Arbitrators.

In the first place, it must be pointed out tliat the assertions made in
respect to seal life and other connected subjects in the United States
Case, are entirely based on very recent affidavits, or on papers which
have been specially obtained or j)repared in connection with the present
discussion, and which are now jiroduced for the first time. Further,
that many of these are derived from persons who formerly occupied
official i^ositions in connection with the management or supervision of
the Pribyloff Islands under the United States Government control,
and who were the authors of official Keports and other writings on the
condition of the islands; but that such earlier and public official
Keports are not now^ referred to in the United States Case. The fol-
lowing Table shows the names of the Agents and Officials whose sworn
evidence appears in the United States Appendices, and which also
shows their previous Keports and writings:

144 Ifames of Wit-
nesses.

Ch. Bryant .

Stephen N. Buynitsky

William H. Dall

Captain M. A. Healy
John A. Henriqucz; . .

Ahial P. Loud

H. H. Mclntyre

Keports, Evidence, or pnhlished "Writings, for-
merly made by Witnesses.

John M. Morton

Jacob H. Moulton. - - .

Jost'ph Murray

S. K. I^ettleton

H.G.Otis

Benjamin F. Scribner
William H. "William.s

Milton Barnes

Henry A. (Jlidden

Ch.J.Goff-

Sen.. 41st Cong.. 2nd Sess., Ex. Doc. No. 32; H.E.,
41st Cong., 3rd Sess., Ex. Doc. No. 122; H. R.,
42nd Cong., 2nd Sess., Ex. Doc. No. 20; H. R.,
44th Cong., Ist Sess., Ex. Doc. No. 83; "Mouo-
giapli of North American Pinnipeds," p. 381 et
seq.; "On Eared Seal.s," p. 381.

H.K. ,41st Cong., 3rd Sess., Ex. Doc. No. 122, p. 5;
H. E., Ex. Doc, 44th Cong., 1st Sess., No. 83:
H. R., 50th Cong., 2nd Sess . Rep. No. 3SS3, p. 1.

"Alaska ana its Kesonrces," Chap. VI

Where Reports

relened to in

United States

Case.

Sen.,4l8t Cong., 2nd Sess., Ex. Doc. No. 36; H. R.,
50th Cong., 2ud Sess., Rep. No. 3883, p. 116.

11. R., i)Oth Cong., 2nd Sess., Rep. No. 3883, p. 250.

Sen.,5Ist Cong.,2ud Sess., Ex. Doc. No. 49

Sen., 51st Cong., 2nd Sess., Ex. Doc. No. 49

S. Falconer

Louis Kimmel . . . .

T.F.Rvan

W.B.Taylor

George Wardmaa.

H. R., 50th Cong., 2ud Sess., Rep, No. 3883, p. 17. . .
Sen., 5l8t C(mg., 2nd Sess., Ex. Doc. No. 49 ; letter

to Mr. Windom, British Counter-Caso. App.,

vol. i, pp. 84, 85.
H. R., 42nd Cong., 2nd Sess., Ex. Doc. No. 20, p. 2;

H.R. ,44th Cong., 1st Sess., Ex. Doc. No. 83.
H. i;., 50th Cong., 2nd Sess., Rep. No. 3883, p. 267

Ibid., p. 211

Ibid., p. 41

Ibid., p. 20

Fnitfd States
Ci.se, p. 153.

1877

1872

1880
1891
1869
1889
1889

1878
1884
1«91
1891
1881
1880
1891

1885
1890

1876

1883
1886
1881

1885

115

116

ARGUMENT OF GREAT BRITAIN.

It is also to be remarked that altlioiigii the above named gentlemen
had not since the dates above mentioned (in some cases fifteen to
twenty years ago) visited the Pribyloft" Islands, and had not, therefore,
any further personal information on the subject, yet the opinions
expressed in the testimony now put forward in many instances differ
materially from that formerly expressed by them in their official

Reports, as the following few examples will show:
145 Stephen N. Buynitsky. — As to the existence of lish near the

Priby lofts :

They (the natives) subsist mostly on
cod and halibut, and every description
of fish they can find. They dry and pre-
serve it for winter. — (H. E., .50th Congress,
2nd Session, Report No. 3883, p. 12.)

At the time I was on the islands I do
not think there were any iish at all with-
in 3 luiles of the islands, and that the
seals to feed had to go farther than that
from land. The belief is founded on state-
ments made me by natives on the islands,
and also from the fact that fresh fish were
seldom eaten upon the islands. — (United
States Case, Appendix II, p. 21.)

H. H. Mclntyre. — As to the movements of seals while on the islands :

The fact is that the bachelor seals may
be found to-day upon a certain rookery,
and at another time upon another place.
The result is the same animals, in many
instances, have been counted two or three
times. — (H. R., 50th Congress, 2nd Ses-
sion, Report No. 3883, p. 116.)

As to the scarcity of bnlls :

There are at present (1888), in my opin-
ion, too few bull seals to keep the rook-
eries up to their best condition. — (H. R.,
50th Congress, 2nd Session, Report No.
3883, p. 117.)

When we are left only exactly the num-
ber of bulls we need, and a few even of
these are killed, it completely upsets our
calculations, with the result of leaving
too few of this class of animals to secure
the full productiveness of the rookeries. —
(H. R., 50th Congress, 2ud Session, Report
No. 3883, p. 130.)

Yet their (the seals') habits are so well
defined and unvarying that it is an easy
matter to determine whether they increase
or decrease from year to year, because
they always occupy the same portions of
certain beaches, and simply expand or
contract the boundaries of the rookeries
as they become more or less numerous. —
(United States Case, vol. ii, p. 48.)

While I was located upon the said
islands there waS' at all times a greater
number of adult male seals than was nec-
essary to fertilize thefenuiles who hauled
up on said rookeries, and there was no
time when there were not vigorous bulls
on the rookeries wlio were uiuible to
obtain female consorts. — (United States
Case, vol. ii, p. 45.)

Henry A. Glidden. — As to raids and sales of skins ;

Raids on the rookeries by marauders
did not, while I was on the islands,
amount to anything, and certainly seal
life here was not affected to any extent
by such incursions. I only knew of one
raid upon St. Paul Island while I was
there.— (United States Case, Appendix,
vol. ii, p. 111.)

J. H. Moulton. — As to the increase of seals on islands:

Q. I would ask whether there are not
trading- vessels which buy skins? — A.
Yes, Sir, and steal skins; that is the
great trouble we had, to watch maraud-
ers. That was more trouble than anj'^-
thing else.— (H. R., 50th Congress, 2nd
Session, Report No. 3883, p. 26.)

I think during the first five years (1877-
82) I was there there was an increase,
and during the last three years (1883-85)
there was no increase.— (H. R., 50th Con-
gress, 2nd Session, Report No. 3883, p. 255.)

Charles A. Goff. — As to driving :

We closed the season by turning away
86 per cent, [of the seals driven], a fact
which proves to every impartial mind

While on St. Paul Island (1881-84) I do
not think the number of seals increased,
and in the last year (1884) I think there
was a slight decrease. — (United States
Case, Appendix, vol, ii, p. 71. )

A few seals are injured by redriving
(often conflicted with over-driving, and
sometimes so called), but the number so

ARGUMENT OF GREAT BRITAIN.

117

that we were redriviug tlio yearlings,
and, considering the mimlier of skins
obtained, that it was impossible to secure
the number allowed by the lease; that
we were merely torturing the young
seals, injuring the future life and vitality
of the breeding rookeries, to the detri-
ment of the lessees, natives, and the Gov-
ernment. — (Senate, 50th Congress, 2nd
Session, Ex. Doc. No. 90, p. 5.)

146

As to causes of decrease ;

injured is inconsiderable, and could have
no appreciable effect upon seal life
through destroying the virility of the
male. — (United States Case, Appendix,
vol. ii,p. 113.)

It is evident that the many preying
evils upon seal life, the killing of the
seals in the Pacific Ocean along the Aleu-
tian Islands, and as they come through
the passes to the Behring Sea, by pirates
in these waters, and the indiscriminate
slaughter upon the islands, regardless of
the future life of the breeding rookeries,
have at last, with their combined destruc-
tive power, reduced these rookeries to
their present imjioverished condition. —
(Senate, 50th Congress, 2nd Session, Ex.
Doc. No. 90, p. 5.)

The prosperity of these world-renowned
rookeries is fast fading away under the
present annual catch allowed by law, and
this indiscreet slaughter now being waged
in these waters will only hasten the end
of the fur-seals of the Pribyloft' Islands. —
(Letter from Mr. Goff to Mr. Wiudom,
dated St. Paul Island, Alaska, 31st July,
1889.)

W.B.Taylor. — As to raids:

These vessels will take occasion to hang
around the islands, and when there is a
heavy fog to go to the rookeries very

often As it is to-day, these

vessels come and kill 5,000, 10,000, and
15,000 seals every year. — (H. R., 50th Con-
gress, 2nd Session, Report No. 3883, p. 54.)

I believe that the sole cause of the
decrease is pelagic sealing, which, from
reliable information, I understand to have
increased greatly since 1884 or 1885. —
(United States Case, Appendix, vol. it,
p. 112.)

There was but one raid on the rookeries
while I was there, and that took place on
Otter Island. — (United States Case, vol.
ii,p.l77.)

George Wardman. — As to increase in number of seals :

I made careful examination of the rook-
eries each year, and after the first year I
compared my yearly observations, so that
I might arrive at some conclusion as to
whether it was possible and expedient to
increase our portion of the quota of skins
to be taken on St. George Island without
injuriously aifecting seal life there. I am
satisfied, from my observations, that the
breeding-grounds on St. George covered
greater areas in 1884 than in 1881, and
that seal lifematerially increased between
those dates. — (United States Case, Ap-
pendix, vol. ii. p. 178.)

Charles Bryant. — As to the date of cows leaving their pups:

After having told the Committee in
1888 that he had measured all the rook-
eries carefully, Wardman was asked —

Q. Do you put it [the number of seals]
atthe same numbers annually? — A. About.
I think the breeding seals on the rook-
eries come in about the same numbers. —
(H. R., 50th Congress, 2nd Session, Report
No. 3883, p. 39.)

The females go into the water to feed
when the pups are some six weeks old. —
(Senate, 4l8t Congress, 2nd Session, Ex.
Doc. No. 32, p. 5.)

The pup is nursed by its mother from
its birth as long as it remains on the
islands, the mother leaving the islands at
ditfc'ent intervals of time after the pup is
three or four days old. — (United States
Case, Appendix, vol, ii, p. 5.)

118

ARGUMENT OP GREAT BRITAIN.

As to time speut by pup on land :

\^Tien once in the water the young
seals soon appear to delight in it, spending
most of their time there in play, tumbling
over each other like shoals offish. — (" Mono-
graph of North American Pinnipeds," p.
387.)

By the 1st September nearly all the pups
have learned to swim, and until the time
of their departure from the islands spend
their time both on land and in the water,
but by far the greater portion of their time
is spent on land. — (United States Case,
Appendix, vol. ii, p. 5.)

147 As to slaugliter of pups in 1 870 ;

Again, during the season of 1870 the
u.atives, to purchase supplies and for
their own food, killed 85,000, mostly 1-
and 2-year-old seals. — ("Monograph of
North American Pinnipeds," p. 398.)

In 1869 about 85,000 seals were taken
by the natives. I never stated that any
such number were taken in 1870. The
full number taken in 1870 was less than
25,000. — (United States Counter-Case,
Apiiendix, p. 414.)

As to relation of fur-seals to the breeding islands:

The fur-seals resort to the Pribyloff
Islands during the summer months for
the sole purpose of reproduction. Those
sharing in these duties necessarily remain
on or near the shore until the young are
able to take to the water. During this
considerable period the old seals are not
known to take any food. — ("On Eared
Seals," p. 95.)

Providing the conditions wore the same
on the islands the year round as they are
in the summer, and jirovidiug the food
supply was sufficient in the immediate
vicinity of tlie islands, I think the seals
would remain on or about the islands
during the entire year. The seals evi-
dently consider these islands their home,
and only leave them by reason of lack of
food and inclement weather. — (United
States Case, Appendix, vol. ii, p. 5.)

As to date of fertilization of cows :

At this stage they [the female pups]
leave the island for the winter, and very
few appear to return to the island until
they are 3 years old, at which age they
seek the males for sexual intercourse. —
("Monograph of North American Pinni-
peds," p. 401.)

As to supply of breeding bulls:

A residence of seven successive seasons
on the island in charge of these animals
has furnished me with the desired oppor-
tunity for determining this surplus
product by actual study of their habits
and requirements, and the result is, the
killing of 100,000 per annum does not
leave a sufficient number of males to
mature for the wants of the increase in
the number of females.— (H. R., 44th
Congress, 1st Session, Ex. Doc. No. 83, p.
175.)

The stock of breeding bulls has de-
creased by loss from age and other causes
80 much faster than there has been young
seals grown to replace them, that its
present condition is only equal to the
present demand, and the stock of half-
bulls, or those to mature in the next two
years, is not sufficient to meet the wants
of the increase in the females. Under
these circumstances I feel it my duty to
recommend that for the next two years
the number of seals to be taken for their
skins be limited to 85,000 per annum. —
(H. R., 44th Congress, Ist Session, Ex.
Doc. No, 83, p. 178.)

It is probable that the females of this
age (2 years) are fertilized by the bulls,
and leave the islands in the fall preg-
nant. — (United States Case, Appendix,
vol. ii, p. 6.)

The whole time I was there there was
an ample supi^ly of full-grown vigorous
males sufflcieut for serving all the fe-
males on the islands, and every year a
surplus of vigorous bulls could always
be found about the rookeries awaiting
an opportunity to usurp the place of
some old or wounded bull unable longer
to maintain his place on the breeding-
grounds. — (United States Case, Appen-
dix, vol. ii, p. 7.)

ARGUMENT OF GREAT BRITAIN. 119

Besides the above, there are a considerable number of
United States officials who having: occupied posts aftbid-
ing special opportunities for studying seal life, have from
time to time frequently reported and written on the sub-
ject to their Governments, but neither their testimony nor
previous Reports are in any way referred to in the United
States Case. Of these, Mr. H.'W. Elliott, Mr. Wash I. urn
Maynard, Mr. W. J. Mclntyre, and Mr. George K. Tingle
are the ,more imi^ortant.

The absence of all reference to the writings or opinions of Mr. u. w. ei-
Mr. H. W. Elliott forms a particularly noticeable omission. '*"^*-

From a date not long subsequent to the acquisition of
Alaska by the United States, Mr. Elliott has been known
as the principal exponent and official and unofticial writer
on the subject of the Pribyloft' Islands and the seals resort-
ing to them.

Who Mr. Elliott is, is best told in the words of his testi-
mony given before the Congressional Committee:

A. My experience covers three seasons on the Seal Islands. In the 44th Cong., ]st
winter of 1872-73 a Bill was pending before Congress, framed by Mr. ^«^s.' H. K. 623,
Boutwell, providing for the establishment of lour Treasury Agents on
the Seal Islands. Professor Baird, of the Smithsonian Institute,
148 was very desirous that some one should be sent from the Smith-
sonian to study the life and habits of the seals. He saw Mr.
Boutwell, and obtained from him jiermission to nominate a man whom
he should appoint as one of the Assistant Agents. Professor Baird
selected me. I receiveil the appointment from Mr. Boutwell, and
landed on the Island of St. George, 28th April, 1872. I went up there
with the special charge of studying the life and habits of tlie seals.
The question was an exceedingly interesting one, about which scien-
tific men had no special data, and therefore Professor Baird's interest
in it. I immediately went to work on the grounds from the date of
my landing, and I soon found that the subject was one which could
not be settled, as I thought it could, satisfactorily to myself, in one
season. I accordingly remained over, and spent the season of 1873 on
the sealing-grouuds on the Island of St. George in order to compare
my observations of that season with those of the season previous. I
at once saw that whatever I stated in regard to this matter would be
subject to criticism, and I thought it necessary to be very thorough
in my examination of the subject before I made a report upon it.
. . . In the winter of 1873 I expressed to Mr. Richardson and my
friends here a great desire to go to the coast of Asia to visit the
Russian Seal Islands in order to complete and extend my work begun
on our own islands. Mr. Richardson said that he had no authority to
send me ; that I could go only by authority of Congress. Accordingly
I drew up a Bill authorizing the Secretary of the Treasury to gather
authentic information on that subject, and it was introduced by my
friends, was referred to this Committee, before which I appeared (Mr.
Dawes being the Chairman at the time), and referred also to the Com-
mittee on Commerce, belore which also I appeared, was reported
favourably to the House, and approved on the 22nd April, 1874. I
immediately received my commission, and set out in May with an
associate, provided for by an amendment in the Bill, the Secretary of
the Treasury putting the revenue-cutter "Reliance" at our joint dis-
posal. We, in visiting other places, paid special attention to tlie
Seal Islands again this year. I especially wanted to visit them at the
height of the breeding season. We were there twenty-eight days,
until. Lieutenant Maynard having expressed himself thoroughly satis-
tied with his investigation on the subject, we set sail for St. Matthew's
Island, and, after exploring that and St. Lawrence Island, we returned
by way of Ounalaska to San Francisco, and submitted our Reports to
Secretary Bristow. A few days after mine was submitted. Lieutenant
Maynarcl submitted his Report, the contents of which I knew nothing
of until lately, when it was sent to Congress, in obedience to an order
of the House. ...

120 ARGUMENT OF GREAT BRITAIN.

5i8t Cong., 211(1 It should be added that as late as 1890 this gentleman
Seas., H.K. 7903. gg^iju visitcd and investigated the breeding resorts on the
Pribyloff Islands as the trusted Agent of the United
States, and again under the mandate of a special Act of
Congress, but that the Report known lo have been made
on the results of that examination has not been published
or produced to Great Britain, although the British Agent
made a special demand for its jn'oduction, and is not any-
where found among the documents cited in or appended to
the Case of the United States.

The following is a list of some of Mr. Elliott's Reports
and writnigs on the subject of seal life:

1. Report on the Pribyloff group or Seal Islands of Alaska. — (Wash-
ington Government Printing Office, 1873.)

2. Report to Secretary of the Treasury concerning the waste of seal
oil, and the " natives " of the Pribyloff Islands, aud the brewing of
quass. — (H, R., 44th Congress, 1st Session, Ex. Doc. No. 83, pp. 103
and 104.;

3. Report Tipon the condition of affairs in the Territory of Alaska. —
(Washington Government Printing Office, 1875.)

4. "Ten years' acquaintance with Alaska, 1867-77." — (New York.
Harpers Brothers, 1877; vol. iv. No. 330.)

5. "Tlie Seal Islands of Alaska." — (Washington Government Print-
nig Office, 1881.)

6. Report on the Seal Islands of Alaska. — (Washington Government
Printing Office, 1884.)

7. "Our Arctic Province."

It is to be noted that five out of the above seven publi-
cations were printed and circulated by the United States
Government, and that besides thi' above works Mr. Elliott
has contributed to newspapers and magazines many arti-
cles and papers too numerous to give a list of.

Mr. Elliott has, without doubt, always been considered
the leading authority on the fur-seal question.

While it is conceivable that some of the Reports of
Agents api^ointed by the United States to control the
Pribyloff Islands may, for many reasons, have been con-
sidered by the advisers of the United States as undesira-
ble subjects for publication, it is difficult to understand on
what grounds all of the Reports have been ignored, and
particularly why th<^ principal official investigator of the
natural history of the fur-seal should not be even referred
to, aud his Report, made in pursuance to a special Act of
Congress, should be suppressed.
Mr.A.w.Lav- Auothcr uotcworthy circumstance connected with the
®^ ®^" evidence put forward by the United States is as to the decla-

rations which imrport to have been made before one ''A.W.
Lavender." These are very numerous, some being
149 taken at Sitka, others at Washington, others at
Kadiak, Nicholas Bay, Dixon Entrance, Victoria,
San Francisco, and Lynn Canal.
UDited states Ou reference to the declarations it will be found that this
vor'ii^pp!°24^ gentleman i:»urports to have attested de(;laratious at these
247. ' ■ ' various places all on the same day. Thus, on the 14th
Ibid! ^pp.^ 406, April he attests the declaration of three Indians in or near
^'"■^- Lynn Canal or Chatham Sound, and also the evidence of J.

Johnson at Victoria, British Columbia; while on the very
same date he purports to attest the declaration of Martin
Benson aud James Griffin at San Francisco.

ARGUMENT OF GREAT BRITAIN. 121

Otiier examples may be found, as to the 26th April, at
pp. 257, 357, and 306; as to tlie SOth April at pp. 256 and
485; as to the 3rd May at pp. 323, 349, .308, and 445; and as
to the 12th May at pp. 269 and 283 of the same Appendix.

Mr. Joseph Murray, another United States Agent, ap- ^jMr- Joseph
pears to have been able to attest affidavits in two places at ' ""'^^'
once. For instance, on the 13th April he attested the dec-
laration of Isaac Leonard at Kadiak, and on the same day
the declaration of E. W. Littlejohn at San Francisco, the
distance between the two places being not less than 1,680
miles by sea. (See pp. 217 and 457, United States Appen-
dix, vol. ii.)

No less than twenty-three affidavits from various Makah ^ The Makah
Indians who inhabit Beah Bay and district appear in the
United States Appendix. None of these witnesses have
been seen on behalf of Great Britain, nor has their evi-
dence been subject to the test of local inquiry, for the
reasons stated in the declaration of Arthur Belyea (see
British Counter-Case, Appendix, vol.ii, p. 176), from which
it will be seen that in November 1892 he visited Neah Bay,
with a view to making the necessary inquiries, but although
the Indians were perfectly willing to talk to him and give
evidence to him, the United States Government Agent, one
John P. McGlinn (who it will be noticed has witnessed
nearly every single deposition taken amongst these people),
refused to allow him to examine any of the witnesses,
although he oflered to do so in the presence of the said
John P. McGhnn.

Mr. Belyea, however, saw the natives, and tried to get
them to give evidence in spite of Mr. McGlinn, but he was
told by them that they dare not disobey this Agent, and
that he had forbidden them to talk about seals to any
stranger who came there without his permission. Whilst
he was making these inquiries he was followed by a police-
man under the orders of McGlinn, and, as he believed, for
the purpose of preventing the Indians from talking to him.

The policeman actually followed him into the house of
one of the Indians, and used threatening language to the
Indian, which caused him to cease speaking to Mr. Belyea.
He, however, got hold of one Indian named Jackson, who
made a statement to him, which apx)ears in the British
Counter-Case, Appendix, vol. ii, p. 178. The witness,
amongst other things, told him that Mr. McGlinn would
issue an order that would send any one to gaol who gave
evidence to Mr. Belyea.

The United States evidence comprises some eight decla- ^^i^r- cbaries
rations by one Charles J. Behlow as to accurate examina-
tions purporting to be made by him of certain cargoes of
seal-skins taken from pelagic sealers.

In these depositions he professes to give the result of
the examinations, reporting in each case an extremely
small number of male skins, and also reporting that the
female skins showed that almost all of them were in pup
when taken. Inquiries lead to the discovery, however,
that Mr. Behlow's inspection of the cargoes in question
was so slight as practically to amount to no inspection at

122 AKGUMENT OF GREAT BRITAIN.

all. Oue example will suffice to show Mr. Belilow's method.
In the case of the " Emma Louise," Mr. Behlow reports
(United States Case, Appendix, vol. ii, p. 402) that he
examined 1,342 skins from this ship, and he purports to
give an accurate result of his investigation, showing 4
bulls, 123 males, 98 pups, and 1,112 cows. It will be seen
from the aflidavits of Charles B. J. Barber, Charles D.
Ladd, and J. A. Belodo (British Counter-Case, vol. ii, p.
173 et seq.) that the examination of this large number of
skins, whicli in ordinary course would take a great many
hours to examine, did not occupy Mr. Behlow more than
five minutes, and that he stated to them that it did not
pay to inspect them, as he was only paid 5 dollars a-day
for doing it.

The skins were snbsequently forwarded to London — to
Messrs. Lampson — and their Beport on them wall be found
on p. 112, vol. ii, British Counter-Case, Api)endix. This
Eeport shows that no less than 563 skins were too light
to be those of bearing females, and 306 of them are too
heavy to be females at all, leaving a balance only of 469
which could have been bearing females.
Tjrited states Thevarious statistical Tables used throughout the United
States Case and Counter-X3ase contain many regrettable
errors, which will at the j)roper time be pointed out. It is
sufficient here, as an example of these errors, to
cfnnter-cnsi!!^^ draw attention to the now admitted serious inaccu-
Ai.peiuUx,voi.ii', racics in Messrs. Lampson's Tables (United States

^'^^'^' Case, Appendix, vol. ii, p. 582), and to the extraordinary

Tables appearing at p. 369 of the United States Counter-
Case Appendix. This latter Table has been examined by
an actuary, with the result that he reports that every sin-
gle calculation of averages shown thereon is erroneous.
This Table is jiarticularly relied upon in the United States
Counter-Case (p. 77), on the question of the average weight
of seal-skins in various years.
confradictory In a great number of cases deponents giving evidence
declarations, f^p ^j^g United Statcs have been seen with reference to
their affidavits, and almost invariably it has been found
that the statements made in the original deposition were
capable of considerable modification and explanation not
contained in the original affidavit. Fresh affidavits have
been obtained from some of these deponents. In many
cases the witnesses directly contradict their former state-
ments, and others even deny that they made them. The
following few examples will show with what caution the
evidence put forward by the United States should be
received:

ARGUMENT OF GREAT BRITAIN.

123

Sfafemenfs in Depoftitions tal-cn on
behalf of the United states.

Statements of same Witnesses in
Depositions taken on behalf of
Great Britain.

Thorwal Matliason. — As to number of females in coast catch:

We caught over 1,000 seals oif the
coast; most all females, aud a great miiii-
ber of them had youug pups in them. —
(United States Case, Appendix, vol. ii,
p. 3o9.)

As to number of seals lost:

It talvcs anywhere from one to twenty
shots on the average to secure a seal, and
I think we got about three out of five
that we kilicd. — (United States Case,
Appendix, vol. ii, p. 339.)

Henry Brown :

A long de|)o.sition on sealing matters
piu'itorting to be made by this witness
a])pears in the United States Case, Appen-
dix, vol. ii, p. 317, in which he states he
was emploved on the schooner " Minnie,"
ISriO, the " Mascottc," 1891, aud the "May
Belle," 1892.

I told him [the United .States Agent]
about three out of five were females. —
(British Counter-Case, Appendix, vol. ii,
p. 167.)

He [the United States Agent] did not
ask me how many seals were lost by sink-
ing, but if he had I wonld have told him
very few were lost. Last year, out of
243 seals taken by the boat' I was in, 5
were lost by sinking; this, 142 were
taken, and 3 were lost by sinking. This
isabont the usual percentage lost. . . .
Tbe first shot kills the sleeping seal if
the hunter is any good. — (British Counter-
Case, Appendix, vol. ii, p. 167.)

In 1890 1 was a seaman on the " Minnie."
In 1891 a seaman on the "Mascotte." In
1892 I was a seaman on the "May Belle"
until the 18th April.

I have never given any statement to
any person on sealing matters either at
Victoria or any other place. I am posi-
tive that I was not in Victoria in the
month of April last, and did not then or
at any other time or place make any state-
ment to any person about sealing.— (Brit-
ish Counter-Case, Appendix, a^oI. ii, p.
171.)

Alfred Dardeau. — As to proportion of females:

Of the seals that were caught off the
coast, fully 90 out of every 100 had
young pups in them. . . . [InBehriug
Sea] most all of them were females that
liad given birth to their yonng on the
islands. — (United States Case, Appendix,
vol. ii, p. 322.)

I consider half the seals caught by the
schooner "E. B. Marvin" [the only
sealing-vessel he was ever on] during the
time I was aboard of her were females,
aud a large proportion of these female
seals were barren. — (British Counter-
Case, Appendix, vol. ii, p. 181.)

William Short. — As to proportion of females :

When cruizing along the coast our
principal catch was female seals in pup.
. . . Fully 90 per cent, of seals obtained
by us in Behring Sea were cows in milk. —
(United States Case, Appendix, vol. ii,
p. 348.)

I told him that in some places we got
most males, and in others most females. —
(British Counter-Case, Appendix, vol. ii,
p. 182.)

151 George Dishow. — As to number of females:

A large proportion of all the seals taken
are females in pup. — (United States Case,
Appendix, vol. ii, p. 323.)

Sometimes I got more males than fe-
males, and sometimes more females than
males. Taking the years together, I
think the catch was about half and
half. — (British Counter-Case, Appendix,
vol. ii, p. 57.)

124

ARGUMENT OF GREAT BRITAIN.

As to nursing cows in Bebring Sea:

Most of the seals taken in Beliring Sea
are females. Have taken them 70 miles
from the islands, that were fnll of milk. —
(United States Case, Appendix, vol. ii,
p. 323.)

As to cloge season :

I think a closed season should he es-
tahlished for breeding seals from the 1st

A few cows there [in Behring Sea]
would be in milk.— (British C<mnter-
Case, Appendix, vol. ii, p. 57.)

I told him [United States Agent] I
thought the Sea ought to be closed till

Janu;iry to the 15th August, in the North about end of July, and then let us go
Pacilic Ocean and Behring Sea.— (United in.— (British Counter-Case, vol. ii, p. 57. )
States Case, Appendix, vol. ii, p. 323.)

Mels Bonde. — As to proportion of females:

The seals caught along the coast after
the Ist A|)ril are mostly pregnant fe-
males, and those caught in Behring Sea
were females that hail given birth to
their young. — (United States Case, Ap-
pendix, vol. ii, p. 316.)

As to number of seals lost:

A green hunter will not get more than
one out of five; and I have known one
hunter on our vessel who shot eighty
shots and got only four seals. — (United
States Case, Appendix, vol. ii, p. 316.)

I would say that about 60 per cent, on
the coast were females, and about 50 per
cent, females in Behring Sea. — (British
Counter-Case, Appendix, vol. ii, p. 94.)

The poor hunter missed half of those
he tired at ; he wounded a few, which
escaped; he sunk a few. — (British Coun-
ter-Case, Apjiendix, vol. ii, p. 94.)

John Morris. — As to scarcity of seals:

Seals are scarcer now than in former
years. . . , The seal herd will soon
become exterminated. — (United States
Case, Appendix, vol. ii, p. 340.)

As to the jjroportion of females:

We began sealing off Cape Flattery,
. . . . and captured about 800 seals
along the coast. There were not over 10
males in the whole lot. . . . Abont
the last of April 1883 I sailed from
Victoria, on a sealing voyage, on the
"Onward," Morris, master, ....
and captured about 400 seals while I was
on her. They were all females with pup,
excepting the yearlings, -which were
about one-half male and one-half female.
In February 1885 I sailed from Victoria,
British Columbia, in the schooner "76,"
Potts, master, .... and caught
about 20 seals, all of which were pregnant
females. — (United States Case, Appendix,
vol. ii, p. 240.)

James Eobert Jamieson. — As to number of seals lost:

Each year I liave found the seals on the
coast about in the same numbers;
. . . . taking it one year with another
they don't change mucli. if at all. — (Brit-
ish Counter-Case, AjipendiXjVol. ii, p. 170. )

There is no getting out of the fact that
there are more males taken than females.
If any one says that I ever told him that
more females were taken than males he
says what is not true.— (British Counter-
Case, Appendix, vol. ii, p. 170.)

The ordinary white hunter will, on an
average, lose over half that he kills and
wounds.— (United States Case, Appen-
dix, vol. ii. p. 331.)

I think the average hunter would miss
one-third the seals shot at. . . . Not
over one seal in twenty cscajies after
being shot by the hunter. — (British Coun-
ter-Case, Appendix, vol. ii, p. 180.)

352 As to proportion of females and pregnancy:

In hunting along the coast, I think
al)out 80 per cent, of those we caught
were females, and most of them were
carrying their young.- (United States
Case, Appendix, vol. ii, p. 330.)

Not over one in forty of the female
caught on the coast en rouie to Behring
Sea were with pup inside.— (British Coun-
ter-Case, Appendix, vol. ii, p. 180.)

ARGUMENT OF GEEAT BRITAIN.

125

Herbert Shelley Beviugton. — As to prohibition of pelagic sealing;

The deponent further said that . . .
the continual supply of fur-seal sl\in,
which it is imjiortant should be constant
and regular iu supply, is absolutely
necessary to the niaiutcnance of this in-
dustry

He has no hesitation in saying that the
best way to accomplish that object would
be to prohibit absolutely the killing of
all seals except upon the islands, and
furthermore to limit the killing of seals
in the islands to the male specie* at
particular times, and to limit the num-
ber of the males to be so killed. If, how-
ever, the rights of individuals are to be
considered, and sealing' in the open seals
to be allowed, then deponent thinks that
the number of vessels to be sent out by
each country onght to be limited, and
the number of seals which may be caught
by each vessel should be specihed. —
(United States Case, Appendix, vol. ii,
p. 553.)

Herbert Shelley Bevington. — As to intermin£>ling:

I am not in favour of its [North-west
catch] total su})pression.

I am of opinion that the North-west
catch is a useful element in the market,
and I think the trade would object to its
disapjjearance. Its total suppression, in
my opinion, would tend to create a mo-
nopoly, and would place the whole busi-
ness in the hands of the persons for the
time being owning the islands, and this
I should object to. - (British Counter-
Case, Appendix, vol. ii, p. 249. )

That the ditil'erences between the three
several sorts of skins last mentioned
[Alaska, Copper, and North-west] are so
marked as to enable any person skilled in
the luisiness, or accustomed to handle the
f^ame, to readily' distinguish the skins of
one catch from those of another, espe-
cially in bulk, and it is a fact that when
they reach the market the skins of each
class come separately and are not found
mingled with those belonging to the
other classes. — (United States Case, Ap-

lu my opinion, at least 2,5 per cent, of
the skins found amongst Copper Island
skins are undistinguishable from Alas-
kas, and in the same way at least 25 per
cent, of the skins found amongst Alaskas
are undistinguishable from Coppers. In
both consignments I have noticed also a
considerable (luantity of skins which in a
less marked manner resembled the other
class, but I consider the bulk can be dis-
tinguished. — (British Counter-Case, Ap-
pendix, vol. ii, p. 249.)

pendix, vol. ii, p. 551.)

Leon Revillon, member of the firm of Kievillon Freres, of Paris. — As
to prohibition of pelagic sealing:

We firmly believe that if the slaughter
of the Norlh-west coast fur-seals is not
stopped or regulated, the Alaska fur-seals
will disappear entirely.

[The marginal note to this paragraph is :
" If pelagic sealing is not stopped, xMaska
fur-seals will disappear."] ^ ( United
States Case, Apx^endix, vol. ii, p. 590.)

5. Q. The next point, M. Revillon, is as
to the last paragraph of your deposition,
of which the marginal note reads: ''If
l^elagic sealing is not stopped, Alaska fur-
seals will disappear." Does that mar-
ginal note fairly represent what you
meant to convey? — A. No; I do not think
it does. I did not intend to convey that
I was in favour of any partictilar way
of regulating the question. All that I
meant was that if what 1 heard was true,
I thought some sort of Regulation was
necessary for the ])rotection of the seals.

6. Q. Would not the total suppression
of all pelagic sealing have the effect of
giving the Company leasing the islands
an absolute monopoly of the business in
this class of seals? — A. This might be so;
I do not know.

7. Q. Well, assuming that it would be
so, do you think it would be a result that
Vt'ould be beneficial to the fur-seal busi-
ness? — A. It depends upon how the mo-
nopoly is managed, but, speaking gen-
erally, I am against monopolies, and in
favour of a free market. I think monopo-
lies injure the progress of business. —
(British Counter-Case, Apipendix, vol. ii,
p. 230.)

126

ARGUMENT OF GREAT BRITAIN.

H. Poland. — As to intermiiigliug:

That the three classes of skius above
iiieutioned [Alaska, Copper, aud North-
west] are easily distinguishable
153 from each other by any person
skilled in the bnsiuess or accus-
tomed to handling skins in the raw state.

That the deponent has personally han-
dled samples of the skins dealt in by this
firm, and would himself have no diiificulty
in distinguishing the skin of the Copper
Island catch from tlie skin of the Alaska
and North-Avest catch. — ^(United States
Case, Appendix, vol. ii, ii. 571.)

I admit that amongst the Copper Island
catch there is a certain percentage of
skins which are for tiie most part uudis-
tinguisliable from the Alaska (or Priby-
loff Island) catch, although that percent-
age would be difficult to ascertain. At a
guess I should say that it Avas not more
than 30 per cent., but of course the fur of
some of these would be less dense. I have
also noticed in the Alaska catch that
there are in some particular years skins
which are undistingnishable Irom Cox>-
per Island skins. — (British Counter-Case,
Appendix, vol. ii, p. 250.)

William Charles Blatspiel Stamp. — As to intermingling:

That skins of these several catches
[Alaska, Copper, aud North-west] are
readily distinguished from each other.

Tiie dift'erences between Copper and
Alaska seals are difficult to describe so
that they cau be understood by any per-
son who has no j)ractical knowledge of
furs, but to any one skilled in the busi-
ness there are apparent differences in
colour between the Copper aud Alaska
skins, and a difference in the length aud
quality of the hairs Avhich compose the
fnr, aud there are also apparent slight
differences in the shape of the skin. The
difference between the skins of the three
catches are so marked, that they have
always been expressed in the different
prices obtained for the skins. — (United
States Case, Appendix, vol. ii, p. 575.)

William Charles Blatspiel Stamp. — As to prohibition of pelagic
sealing:

In my opinion, there is no absolute line
of demarcation between the Copper
Island skins and Alaskas, and in inspect-
ing the consignments made each year
from the Pribylofl' Islands, through
Messrs. Lampson and Co., I h;ne found
a certain percentage of skins which were
facsimiles of Copper Island skius, and in
tlie same way, inspecting consignments
of Copper Island skins, I have seen skius
which had I seen them elsewhere, I should
have clnssed as Alaskas, and also a cer-
tain nnniber of the intermediate degrees
of similarity. — (British Counter-Case,
Appendix, vol. ii, p. 245.)

That the continued existence of the fur-
seal business is dependent, in deponent's
judgment, iipon the i^reservation of the
seal herds frequenting the North Pacific
region, and is also a most important ele-
ment in the industry, that the supply of
seal-skins coming into the market each
year should be regular aud constant.

* .V n n

That some Regulations are necessary
for the preservation of the seal herds fre-
quenting the Northern Pacilic region. —
(United States Case, Appeudix, vol. ii,
p. 571.)

I am not in favour of the suppression of
the North-Avest catch. In my opinion it
would be neither just nor practicable. It
would not be just, because I consider that
the Caujidians have a right to catch the
seals frequenting the sea adjoining their
own shores, and which feed to a large
extent on the food there found, provided
they do so in a proper manner.

I think it would be impracticable, be-
cause the only effect of entire prohibition
would probably be to cause the Canadian
schooners to register under the flags of
other nations. 1 am of opinion also that
theNorth-Avest catch is a very important
element in the market in keeping the
price of the articles within the reach of the
ordinary consumer. — (British Counter-
CasB; Appendix, vol. ii, p. 245. ">

ARGUMENT OF GREAT BRITAIN.

127

Emile Hertz, member of the firm of Emile'Hertz aud Co., Paris.— As
to iiitermingliug:

That the said tirm can distinf>iiish very I have from time to time seen among
readily the source of production of the the consignments of Alaska seals offered
sliins when the latter are in their un- for public sale by Messrs. Lanipson and
dressed state. —(United States Appendix, Co., of London, skins resembling Copper
vol. ii, p. 58S.) Island skins, and among theconsignments

of this latter sort skins resembling the
Alaska kind, btit I believe it to be impos-
eible to afSi'm absolutely that these doubt-
ful skins belong to one or other of these
two localities. — (British Counter-Case,
Appendix, vol. ii, p. 242.)

Norman Hodgson. — As to sorting

I have handled a great many seal-skins,
and can, upon examination of the pelt,
distinguish the sex of the animal, except
in the case of animals under 2 years of
age ; these cannot always be distin-
guished. I examined carefully this day
420 seal-skins on board the British seal-
ing-schooner " Henrietta," which skins,

according to log and sealing-book of
154 said vessel, were taken in Bering Sea

during the month of August 1892,
and find, to the best of my knowledge
and belief, the proportion of the sexes to
be as follows: — Females, 361; males, 33;
young, the sex of Avhich could not be dis-
tinguished, 26.

(Signed) N. Hodgson.

Subscribed and sworn to before me at
Sitkai, Alaska, this 2l8t day of September,
1892.

(Signed) C. L. Hooper,

Xoiary Fublic, District of Jlaslca.

— (United States Counter-Case, p. 369.)

As to seals sinking:

The white hunter secures on an average
about 60 or 65 per cent, of all fur-seals
shot in the season. — (United States Case,
Appendix ii, p. 367.)

Charles Campbell :

Experienced hunters lose very few seals
that are shot, but beginners lose a great
number. — (United States Case, Appen-
dix, vol. ii, p. 256.)

Majority of seals taken are females,
with young. — (United States Case, Ap-
pendix, vol. ii, p. 256.)

male from female skins :

At Unalaska I was placed on board the
seized vessel "Henrietta" with Lieuten-
ant Johnson, of the "Corwin,"' to proceed
with her to Sitka. She had at the time
of seizure about 400 skins, aud on our
arrival at Sitka I was asked to inspect
these to determine the sex of the seals
from which they had been taken. Cap-
tain C. H. Hooper, of the "Corwiu," asked
me to do this. I told him it was impossi-
ble to ascertain this with any degree of
accuracy, but he said to go on anyway
and do my best, and I did so. I gave him
a statement of what I thought they were ;
he wished me to swear to it, but I told him
I could not do so, but the statement I hud
given him was to the best of my knowl-
edge. After the skins are salted, I con-
sider it impossible to defiue the sex of
the smaller skins np to 3 years. AVith
the old cows and old bulls, of course, an
expert can tell, but I consider it quite
impossible for any one to say, after skins
have been salted, that any particular skin
was that of one that had been carrying
young and from which the pup had been
cut. — (British Counter-Case, Appendix,
voLii,p.l34.)

Lose very few seals by sinking; from 5
to 10 per cent, will cover my total loss in
that respect. — (British Counter-Case, Ap-
pendix, vol. ii, p. 134.)

I am no hunter, but this year I killed
15 seals, and lost 1 only. — (British Coun-
ter-Case, Appendix, vol. ii, p. 77.)

The principal part of my catch was
young males; there were more of them
than fenjales. — (British Counter-Case,
Appendix, vol. ii, p. 77.)

Clat-ka-koi. — As to hunting on coast:

He does not hunt seal in schooners.

This season this village got 86 seals,
and four canoes were manned from this
village.

I have hunted both from shore and
from schooner.

I told him [United States Agent] that
this year our tiibe had got 750 seals with
nineteen canoes lishing from the shore,
and that Ave had got more last year. I
told him that one canoe owned by a man
named Kennedy, of the same tribe as I
am, had got 86 seals from the shore [in
1891] last year.

128

ARGUMENT OF GREAT BRITAIN.

Sometimes a few seals follow schools of
herring into [Barclay] Sound and go out
hurriedly. On such occasions a few are
killed. — (United States Case, p. 305.)

I told him [United States Agent] Ibad
seen seals inside of Barclay Sound, and
had killed them as far uj) as "Turn
Point," and even farther up the canal. I
told him that when the bait would come
in sometimes I would go out and get
three seals in a little while, and have
gone a mile and a-half outside of Village
Island, when the herring have been
plenty, and seen lots, and that I have
seen a canoe get from 15 to 20 a day
there Seals come into Bar-
clay Sound every year, sometimes more
than others; the more iish that come in
the more seals come. — (British Counter-
Case, Appendix, vol. ii, p. 150.)

Other questions referring to numbers of seals lost by sinking, composition of
catch, &c., were asked Olat-ka-koi by the United States Agent, but bis replies do
uot appear in the United States Case. — (Sec British Counter-Case.)

"Dick " or Ehenchesut. — As to liuutinsf on coast:

I told him [United States Agent] we
got skins, every season inside of Village
Island, in liarclay Sound; I could not
have told him anything else, for I told
him I had got them as far up as Ecool.

I told him [United States Agent] that
our tribe and the Opichissets manned
thirty canoes to bunt seals from the shore
this last season. He never asked me how
many skins the whole tribe had got, but
how many one canoe would get from
the shore in a season, and I told him 30.
He then asked bow many one canoe would
get from a schooner in a season, and I
said about 40 bunting otf the coast in a

schooner I did not tell him

I have been bunting oft" Cape Flattery
this year, lor I have not been sealing
there for three years or more. — (British
Counter-Case, Apiiendix, vol. ii, p. 155.)

Ehenchesut further testifies as to no decrease in the number of seals, composition
of catch, &c., and that questions were asked him on these points by the United
States Agents, but no reference to them appears in the United States Case. He is
stated in the United States Case to be a Chief, but testifies that be never was one,
and never said he was. He was paid 5 dollars for his evidence by the United States
Agent, and each of the men with him 1 dollar.

To his knowledge, no seals ever came
inside Barclay Sound, and that he never
caught any inside, and, moreover, he and
his friends never heard of any entering

these waters.
155 He states that during the last

live months twenty-live canoes
belonging to the village, manned by fifty
men, have been engaged in sealing oft' the
coast of Vancouver Island. They ob-
tained in this time 10 skins per capita, in

all, 500 skins The fifty men

who went out from this village joined
schooners, two in number, and the seals
were caught about 20 miles to southward
and westward of Cape Flattery. Of the
number caught, 300 were caught and
killed by the natives of this village. —
(United States Case, pp. 306, 307.)

Imihap. — As to hunting on coast ;

Certifies as to evidence given by Ehen-
chesut to United States being true. —
(United States Case, p, 308.)

Ohileta. — As to hunting on coast.

Certifies as to evidence given by Ehen-
chesut being true. — (United States Case,
p. 308.)

[See testimony of Ehenchesut above.]

Certifies to evidence given by Ehen-
chesut to Great Britain being true. —
(British Counter-Case, Appendix, vol. ii,
p. 156.)

Told the United States Agent that in a
season a canoe would get about 100 seals.
He told him that about 300 seals had
been taken by sealing oft" shore. "I
never told the old man that seals did not
come in to Barclay Sound, for we kill
them every year away up, as far as Bird
Rocks." — (British Counter-Case, Appen-
dix, vol. ii, J). 145.)

ARGUMENT OF GREAT BRITAIN.

129

John Margathe (Margotich). — As to seals in Barclay Sound:

States that fur-seals are rarely seen in
Barclay Sound, and are usually found off
the coast at a distance of from 5 to 15
miles. They are found in clear water,
and never close to the land.

He is also agent for five sealing-vessels
owned in Victoria. — (United States Case,
pp. 308, 309.)

I told him [United States Agent] that
the seals came in every year amongst the
islands, and were also found off the coast
every year. I said youug pups were
caught about the Sound and coast every
year; some years more and some years

less I could not have

told the captain that seals never came
into the Sound, for I have been twenty-
five years on this coast, and have always
seen the seals come into the Sound every
year.

Never said I was agent for five sealing-
vessels, because I am not agent for any. —
(British Counter-Case, Appendix, vol. ii,
p. 154.)

Wackeuunescb. — As to seals in Barclay Sound:

States that seals do not come in close
to shore in this locality [Barclay Sound].
Seals are caught oft' the coast at from 5
to 20 miles. Formerly Indians hunted
them for food, but nowadays white men
and Indians hunt them for their fur, and
they are rapidly diminishing in number.
Last year there were fewer than ever
before. This year the natives caught
about one-half as many as last. In his
opinion the seals will soon be extermi-
nated, and in three years there will be no
more sealing. — (United States Case, p.
311.)

I was asked [by United States Agent]
many questions, and said there were not
many seals in the Sound and along the
coast this year, but last year (1891) there
were plenty. Said the reason was that
this year white men had come in and
hunted them away with guns and made

them wild Ee told me that

the Indians formerly hunted the seals for
their food, but now they hunted them for
their skins. White man asked me how
long I thought it would be before there
would be no skins, and I said that would
be impossible; there would always be
lots of skins, but they would be harder
to get, because the seals were wilder. —
(British Counter-Case, Appendix, vol. ii,
p. 158.)

156

Charlie Hayuks. — As to hunting on coast:

Certifies to truth of what Wackenu-
nesch said. — (United States Case, p. 312.)

A year ago last spring .... we
took over 1,000 seals at Barclay Sound
from the shore. None of us Indians
think the seals are any fewer. — (British
Counter-Case, Appendix, vol. ii, p. 146.)

William Bendt. — ^As to decrease, protection, &c. :

In Appendix to United States Case,
vol. ii, pp. 404, 405, testifies as to decrease
in number of seals, protection necessary,

&.C.

Have never been out seal-hunting
myself, and personally know nothiug
whatever about the loss through sinkage
of seals that are shot, nor have I any
knowledge personally as to whether the
seals are decreasing or where th(^y are
caught. — (British Counter-Case, vol. ii, p.
186.)

William Hermann. — As to loss hunting;

One seal secured to two lost. — (United
States Case, Appendix, vol. ii, p. 445.)

B S, PT X 9

I would not lo^e more than 6 seals in
100 that I would hit. — (British Counter-
Case, Api^endix, vol. ii, p. 118.)

130

ARGUMENT OF GREAT BRITAIN.

G. Miner. — As to loss hunting:

33 per cent, of the seals shot witli the
shot-gnn are lost. — (United States Case,
Appendix, vol. ii, p. 46G.)

As to proportion of females:

A large majority of the seals killed in
the North Pacific are cows with pups,
and in Behring Sea cows with milk. —
(United States Case, Appendix, vol. ii, p.
466.)

He asked me the average number of
seals destroyed. I replied, " Not more
than 10 per cent." In this I included
those that I know were killed and would
sink, and those that were badly wounded
and I thought would die afterwards.

The actual number I see sink is much
smaller than that. Last year not more
than one of nine sank. Tliis year I got
384 skins, and 10 seals sank and were
lost. — (British Counter-Case, Appendix,
vol. ii, p. 97.)

There is a majority of females as a rule,
both on the coast and in Behring Sea,
but this year our catch did not contain
more than 10 percent, of females, I think.
I took about 10 per cent, of females. —
(British Counter-Case, Appendix, vol. ii,
p. 97.)

Charles Lutjens. — As to loss hunting:

We get 80 per cent, of those we shoot. —
(United States Appendix, vol. ii, p. 458.)

In my opinion, 5 per cent, will cover
the lost seals by sinking after being

shot Of course a poor hunter

will not do so well. — British Counter-
Case, Appendix, vol. ii, p. 122.)

Frank Moreau. — As to loss hunting :

We lose about 25 per cent, of those we
shoot. — (United States Case, Appendix,
vol. ii, p. 467.)

As to proportion of females:

90 per cent, of skins taken were cows,
and 75 per cent, of cows taken were with
pup. — (United States Case, Appendix,
vol. ii, p. 467.)

The loss from sinkage through being
killed or mortally wounded would not be
greater than 8 per cent., which would
cover the whole loss. — (British Counter-
Case, Appendix, vol. ii, p. 135.)

States that 80 per cent, are females, of
which 75 per cent, are in pup, and in
Behring Sea about the same percentage
in milk. — (British Counter-Case, Appen-
dix, vol. ii, p. 135.)

James Carthcut. — As to loss hunting:

I think on the average I got one out of
every three killed, but some of my hunt-
ers did not do as well. — (United States
Case, Appendix, vol. ii, p. 409.)

157

As to decrease of seals :

Seals were not nearly so numerous in
1887 as they were in 1877. ... I do
not think it possible for seals to exist for
any length of time if the present slaughter
continues. — (United States Case, Appen-
dix, vol. ii, p. 409.)

I never was out in a boat with a seal-
hunter, but have seen hunters killing
near the vessel, and know that hunters
do not lose many by sinking and a really
good hunter loses very few, not over 5 in
100. — (British Counter-Case, Appendix,
vol. ii, p. 138.)

Always sealed along the coast and in
Behring Sea, and noticed no difference in
the number of seals from the first to the
last year. — (British Counter-Case, Appen-
dix, vol. ii, p. 138.)

States that he first went sealing in
1883. — (British Counter-Case, Appendix,
vol. ii, p. 138.)

ARGUMENT OF GREAT BRITAIN. 131

As to proportion of females :

85 per cent, of my catch of seals along About 60 per cent. I think -would be
the coast of the North Pacific Ocean were about the average run of females, and it
females. — (United States Case, Appendix, would run about the same in Behring
Tol. ii, p. 409.) Sea. — (British Counter-Case, Appendix,

vol. ii, p. 139.)

It is unnecessary to give any further examples, although if this should
be required the above could be easily multiplied.

Sufficient examples have been given to show the unreliable character
of a great proportion of the evidence produced by the United States,
and with what caution it ought to be received.

SEA ARBITRATION.

INDEX TO BRITISH ARGUMENT.

Part

Alaska —

Cession of

United States Statutes dealing -with

Aleutian Islands. Passes through

Algerian coral fisheries

Argentine Republic. Seal Fishery Regulations

Aignnient —

First 4 points of Article VI

Point 5 of Article VI

Regulations

Damages and compensation

Propositions maintained by Her Majesty's Governmeut in

Scheme of -•

Article VI—

Conclusions established by arguments on

Propositions maintained by Her Majesty's Government on Point 5.

Q aestions for decision under

Article VII of Treaty-
Origin of

Regulations contemplated under

Australian Pearl Fisheries Legislation ..

I.

II.

III.

IV.

Bed of the sea sometimes regarded as territory

Behring Sea —

Area of.

Cannot be made a close sea

Frequented by foreigners in early years

Not land-locked

Open to all nations prior to 1799

Part of the Pacific

Regulations limited to eastern part of

Behring Strait. Width of

British Columbia. Winter home of the fur-seal

" Commissioners. Regulations proposed by

British- ^ F F J-

Fishery legislation

Vessels were seized outside territorial waters

Budington, J. Deposition of, on Falkland Island. Seal Fishery Regulations.

Canada. Fishery Act of 1886

Cape of Good Hope. Seal fishery legislation

Cases cited —

Reg. V. Keyn

Le Louis

Coi)e». Dolierty

Jeffreys t). Boosey

Blain re Sawers

llacleod v. Agent General for New South Wales

" Carolena." Seizure of

Cas)iian Sea. Seal fisheries in

Cession of Alaska —

Rights acquired by United States

United States Statutes dealing with

Ceylon pearl fisheries legislation

Chile, seal fishery legislation

Claim of United States—

Diflerent forms in which it is presented

To protection apart, from property

Colombian pearl fisheries.

Compensation —

British claim for

United States claim for

160 Contentions of —

Great Britain

United States Government

Conventions. Legislation by ,, ,[

Coral fisheries

133

134

ARGUMENT OF GREAT BRITAIN.

Index to British argument — Continued.

Damages —

British claim for

Cases quoted in reference to

Question of i)rospeclive earnings

United States claim for

Dawson, Judge. Decision of, in cases of "Thornton" and " Dolpliiu"

Distinction alleged between skins of seals on two sides of Pacilic

Domestic. Pur- seals cannot be classified as

" Dolphin." Case of

Exceptions to law of nation s

Exclusive rights of United States are lost when seals are on high sea

Falkland Islands. Seal fishery legislation

FercB iiaturce —

E ur-seals are

Laws of Great Britain and United States as to, identical

Fishery Conventions. Arguments to be deduced from

Fish-
Common right of all men to take on high sea

Food of fur-seal

Food of fur-seal derived from the sea

Forei<;n seal fishery legislation. Conclusions from

Freedom of the sea defined

French fishery laws

Fur-seal —

Cannot be classified as domestic

Duration of stay on shore

Food of, derivecl from high seas

Is pelagic in habit

Not provided with food by man ,

Undoubtedly /ercc naturm

Great Britain. Contentions of.

Greenhow includes Behring Sea in Pacilic

Greenland —

Fisheries. Protection of.

Seal fisheries. Legislation for...

Handford, Judge. Decision of, in case of "J. G. Swan"

"Herd." Term only applicable to seals when on islands

High sea. Claim to protect seals in

Home of fur-seal as applied to Pribyloflf Islands inadmissible

Hovering Acts —

United States Argument based on

Do not extend limit of territorial waters

Intermingling of seals —

Between St. Paul and St. George Islands

In North Pacific

International law —

Cannot create new principles

Derived from practice of nations

Sources of

Irish oyster fisheries legislation

Italian coral fisheries

"James G. Swan." Case of the

Japan seal fisheries legislation

Jurisdictional questions^

Cannot be lightly dismissed

Fully discussed in British Case and Counter-Case

Stated by United States to be of secondary importance

Kent. On sonrcesof international law

Laws of other nations. Ob.jects of United States Argument derived from, di.scusscd

Legal principles. Examination of

"Le Louis." Case of

"Lisi^re" as distinguished from north-west coast

161 Lobos Islands. Seal fishery

Low -water mark. Limit of territory

Malice not alleged against pelagic sealers

Management doe.s not constitute possession

Mexican pearl fisheries

Modus Vivendi for 1892. Agreement for

Nations can only legislate for their own nationals on high seas

Naturalists admit no distinction between seals on two sides of North Pacific

Newfoundland seal fishery legislation

ARGUMENT OF GREAT BRITAIN.

Index to British argument — Continued.

135

Kew Zealand —

Seal tisher V legislation

Misstatement in United States Case as to

Nonh-west coast —

Extended to Behring Strait

Inchules whole northwest coast of North America

Limited meaning placed on, by United States inconect

Kor wegian whale fisheries

Notice issued by United States in 1845

" Onward." Seizure of

Pacific Ocean —

Commonly used to Include Behring Sea

Included Behring Sea in Treaty oi' 1825

" Pearl." Case of the

Pearl fisheries legislation —

Australian

Ceylon

Colombian

Mexican

Pelagic sealing —

United States have no legal right to impose regulations on

" " maintain, must be prevented every where

Phelps, Mr. On rights of property

Pollock and "Wright. On animals /eree naturcB

Possession —

Conditions of, do not exist except at moment of capture

Examples of

Right of, ceases when seals leave the islands

Preface

Pribyloif Islands. Description of

Property and possession of wild animals applied to seals

Proiierty, claim of, by United States

Not. connected with Regulations

Summary of

Unfounded

Protection —

Abstract right of, cannot exist

Apart from property, claim to

Claim admitted to be novel

Right of, does not exist in Behring Sea

Rights of a Government as to

Quarantine Act, 1825

Questions at issue between Her Majesty's Government and the United States
" raised by Article VI stated

Raids are a violation of possession rights of United States

Regulations —

Argument addressed to question of.

For seal fisheries-
Argentine Republic

Canada

Cape of Good Hope

Chile

Falkland Islands

Greenland (J an Mey an)

Japan

Newfoundland

New Zealand

Russia

Uruguay

Her Majesty's Government willing to join in

Involve curtailment of rights

162 Limited to eastern half of Behring Sea

Must apply to breeding islands as well as pelagic sealing

Mr. Wharton's proposal for

Must be just to all concerned

Position of United States Government as to

Should be binding on all nations

Waters to be aflTected by

Revised Statutes of United' States. Powers of

Riglits claimed by United States have no analogy to other fishing rights

Rigli ts of United States not violated by taking seals in high sea

Russia —

Alleged claims of

Did not claim rights asserted by United States

Did not exercise jurisdiction over Behring Sea

Seal fishery legislation

St. Helen a A ct, 1815

13G

ARGUMENT OF GREAT BRITAIN.
Index to British argument — Continued.

Scotch herring fisheries legislation

Sealing schooners. Alleged interest of United States citizens in

Seals-
Animals ferce natures

Laws for protection of, cited by Unitfd States

Partly controllable on land, but quite uncontrollablo at sea

Said to be a product of the soil

Seizures of British vessels —

In 188(5

Not analogous with vessels seized under Hovering Acts

Sitka. Trial of British crews at

Skins. Those from Pribyloff Islands often classed as from Commander Islands and vice versd

Swimming animals. Claim to property in, not analogous with that in pearl or oyster beds .

Territorial "Waters Jurisdiction Acts, 1878 '.

" Th oruton." Case of the

Treaty—

Of 1824. Discussed

" Included Belirinc; Sea

Of 1825. Analysis of .".

' ' Discussed

" Proves Behring Sea is a part of the Pacific

Treaties of 1841, 184:5, ana 1859 prove tliat North-west coast included shores of BehringSea.

Treaties show Russia never claimed rights asserted by United States

Treaty of 1867—

Uii i ted States Arguments based on

Di<l not acquire riglits over non-territorial waters

Translation of, incorrect

Tribunal, decision of, must follow laws of both parties

Ukase of 1799. Character of

Ukaso of 1821—

Ciiaracter of

Not i fication of, to Great Britain

Protests against, by Great Britain and the United States

Withdrawal of Russian claims

United States —

Argument derived from laws of other nations

Claims, general view of ."■

Claims, varying contentions in

Contentions as to fishery laws of othernations

Contentions, varying nature of

Position as to Regulations

Statutes dealing with Ala-^ba

Uruguay seal fisheries legislation

"Water boundary-line. Meaning of

"West, Sir L. S., protest by, against seizures

"Wharton, Mr., on Regulations

"White Sea seal fishery legislation

"Winter home of fur-seals

Zone. Proposals for, by Mr. Blaine....

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