contracting parties, "having found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, either may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation." In Article IX. of the treaty the provisions Joint Commission which were agreed upon on the 18th of the of Experts. preceding December, in relation to the appointment of a joint commission of experts, were incorporated. It has been seen that Article VII. provided that, in determining what concurrent regulations, if any, were necessary for the protection of the seals, the report of the joint commission. should be laid before the arbitrators, with such other evidence as either government might submit.

New Modus Vivendi.

On February 2, 1892, nearly a month before Discussion as to a the conclusion of the treaty of arbitration, Mr. Blaine proposed to Sir Julian Pauncefote the adoption of a new modus vivendi for the ensu ing fishery season. It appears that in the discussion leading up to the agreement for a joint commission of experts, as concluded on the 18th of December 1891, and subsequently embodied in Article IX. of the treaty of arbitration, it was sug gested that the subject of a modus vivendi might be considered by the commissioners. The joint commission held its first meeting, which was in the nature of a preliminary conference, on the 8th of February 1892. At the second preliminary conference, held on the 11th of February, the American commissioners, Messrs. Mendenhall and Merriam, under instructions from their government, proposed the discussion of a modus vivendi. The British commissioners, Messrs. Baden-Powell and Dawson, declined to enter into the subject, on the ground that it was not within their powers, but belonged to the two governments. When informed of this decision, Mr. Blaine addressed a note to Sir Julian Pauncefote, expressing his surprise and saying that an early assembling of the commissioners had been urged on the ground "that they could provide a modus vivendi that would be sufficient, while the arbitration should go on with plenty of time to consider the various points." Sir Julian, however, replied that the authority of the joint commission

was limited by the terms of the agreement under which it was organized; that, while he had certainly urged, as an additional reason for an early meeting of the joint commission, that its reports would furnish valuable materials for such discussion, the commissioners could not properly deal with the question of a modus vivendi without special authority from their governments; and that he had communicated to Lord Salisbury the proposal made by Mr. Blaine on the 2d of February that the two governments should agree on a modus vivendi, and was awaiting his lordship's reply. When Lord Salisbury's reply was received, it was found to be to the effect that Her Majesty's government could not express any opinion on the subject of a modus vivendi until they knew what the United States desired to propose. Mr. Blaine answered that the President desired to suggest "that the modus should be much the same as last year in terms, but that it should be better executed." Lord Salisbury, however, maintained that "so drastic a remedy” was unnecessary, and suggested as a temporary measure for the ensuing season the prohibition of all killing at sea within a zone of not more than thirty nautical miles around the Pribilof Islands, such prohibition being conditional on the restriction of the number of seals to be killed for any purpose on the islands to a maximum of 30,000. To this proposal the President strongly objected. Before the agreement for arbitration was reached, the prohibition of pelagic sealing was, he said, a matter of comity; from the moment the agreement was signed, it became, in his opinion, a matter of obligation; and he declared that, while the United States would abide by the judgment of the tribunal which had been agreed upon, it could not be expected to suspend pending the arbitration the defense of the property and jurisdictional rights which it claimed. On the same ground the President declined to entertain a proposal that the taking of seals in Behring Sea should continue on condition that the owner of every sealing vessel should give security for satisfying any damages which the arbitration might adjudge. As a result of this correspondence Lord Salisbury presented another proposition, out of which an agreement finally grew. Her Majesty's government, he said, concurred in thinking that when the treaty should have been ratified there would arise a new state of things, but that until it was ratified their conduct was governed by the language employed

For. Rei. 1891, 612-613.

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

New Modus Vivendi and the Question of Damages.

On the 18th of April 1892 a modus vivendi was concluded in the form of a convention. In its first, second, third, and fourth articles it embodied the provisions of the modus vivendi of 1891. By its fifth article it introduced the subject of damages, which had been postponed by the treaty of arbitration. This article read as follows:

"ARTICLE V.

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

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

For. Rel. 1891, 612-628.

Tribunal of Arbitration.

The treaty of arbitration was approved by Constitution of the the Senate of the United States on March 29, 1892, and the convention for the renewal of the modus vivendi on the 19th of April. Both instruments were ratified by the President on the 22d of April, and their ratifications were exchanged on the 7th of May. On the 9th of May they were duly proclaimed. The way for the arbitration having thus been cleared, the two governments proceeded to constitute the tribunal of arbitration, and agreed on an identic note to be addressed to the governments of France, Italy, and Sweden and Norway, with a view to the appointment of the neutral arbitrators. As American arbitrators the President of the United States named the Hon. John M. Harlan, a justice of the Supreme Court of the United States, and the Hon. John T. Morgan, a Senator of the United States. On the part of Great Britain the arbitrators named were the Right Hon. Lord Hannen, of the High Court of Appeal, and the Hon. Sir John Thompson, minister of justice and attorney-general for Canada. As neutral arbitrators the President of France named the Baron Alphonse de Courcel, a senator and ambassador of France; the King of Italy, the Marquis Emilio Visconti Venosta, a senator of the Kingdom and formerly minis ter of foreign affairs; and the King of Sweden and Norway, Mr. Gregers Gram, a minister of state. As agent the United States appointed the Hon. John W. Foster, who subsequently held the office of Secretary of State. The British Government designated as its agent the Hon. Charles H. Tupper, minister of marine and fisheries for the Dominion of Canada, while Mr. R. P. Maxwell, of the foreign office, acted as assistant agent and Mr. Charles Russell as solicitor.

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

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

1 For Rel. 1891, 642-643.

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

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

Order of Procedure.

On the 27th of September 1892 Mr. Foster, Question as to the as Secretary of State,' by direction of the British Case and the President addressed a note to the British minister in Washington protesting against this omission in the Case of Great Britain as a failure to comply with the requirements of the treaty. In this note it was maintained that it was manifestly contemplated that both parties to the treaty should simultaneously submit to the arbitrators and to each other their propositions, their claims, and their evidence upon all points in dispute, and that to reserve

1

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

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