Illness of an Arbitrator. On the 25th of April, all the arbitrators being present except Lord Hannen, who was confined to his house by illness, Sir Richard Webster stated that any decision of the tribunal as to the suspension of its labors during the time necessary to insure his lordship's complete recovery would be agreeable to the wishes of the British Government. Mr. Phelps expressed the same disposition in behalf of counsel for the United States. The tribunal decided to adjourn till the 2d of May, when it reassembled, all the arbitrators being present. retary. On several days, during the temporary Absence of a Co-sec- absence of Mr. H. Cunynghame, one of the two co-secretaries, the tribunal authorized Mr. H. A. Hannen, secretary to Lord Hannen, to perform Mr. Cunynghame's duties. Sessions of the The regular hour of meeting of the tribunal was 11.30 a. m. At 1.30 p. m. a recess was usually taken, and after reassembling the tri bunal sat till 4 p. m. ments. The oral argument on the merits of the case Order of Oral Argu- was opened by Mr. Carter on the 12th of April and was continued by him on April 13, 14, 18, 19, 20, 21, and May 2. On the last day Mr. Carter discussed the subject of regulations. As he was proceeding to deal with it, Sir Charles Russell observed that counsel for Great Britain would in the discussion keep absolutely separate matters relating to right and those relating to regulations. The president" recalled the fact that the tribunal had decided, without prejudging the question of right, to give to counsel on each side, who had agreed upon this point, full liberty to ar range their arguments in such manner as they thought most convenient, but always, as far as possible, so as to keep the questions of right distinct from the regulations;" and he added "that the tribunal took note that both parties had decided to defer to this desire." On the 3d of May Mr. Coudert began his oral argument, which was continued on the 4th and 5th and concluded on the 9th. Sir Charles Russell began his argument for Great Britain on the 10th of May. He continued it on the 11th, 12th, 16th, 17th, 23d, 24th, 25th, 26th, and 30th, and concluded on the 31st. He was followed on the same day by Sir Richard Webster, who spoke also on June 1, 2, and 6, and concluded on the 7th. Sir Richard Webster was followed by Mr. Robinson, who opened his argument for Great Britain on the 7th of June and closed it on the 8th. On the same day Sir Charles Russell opened for Great Britain on the subject of regulations, continuing his argument on the following day and closing on June 13. He was immediately followed by Sir Richard Webster, who continued on June 14, 15, and 16, and concluded on the 20th. Mr. Robinson followed, concluding his argument on the following day. Mr. Phelps began the closing argument for the United States on the 22d of June. He continued it on the 23d, 27th, 28th, and 29th of June, and the 3d, 4th, 5th, 6th, and 7th of July, concluding on the 8th. ing. On the conclusion of Mr. Phelps's argument Conclusion of Hear- Sir Charles Russell, in the name of his colleagues, thanked the members of the tribunal for the kind attention with which they had followed the lengthy debates. He also thanked the secretary, co-secretaries, and assistant secretaries of the tribunal, as well as the private secretaries of the arbitrators for their obliging and useful assist ance. Mr. Phelps, concurring, in behalf of counsel for the United States, in what Sir Charles Russell had said, spoke of their appreciation of the ability and courtesy with which the president had directed the discussions, and renewed the expression of their gratitude for the hospitality of France. The president thereupon announced that the tribunal would take the case under consideration. Sir Charles Russell and Mr. Phelps expressed the desire that if the tribunal should, during its deliberations, find it necessary to obtain from counsel any further information, the request for such information and the answer thereto should be in writing. The president replied that the tribunal would take note of the request as far as possible, without, however, surrendering the right given it by the treaty to require all such information, whether oral, written, or printed, as it might deem useful. The agent of Her Britannic Majesty announced that the agent of the United States and himself would remain in Paris at the disposition of the tribunal. 5627-58 Deliberations Con On the 10th of July the tribunal assembled with closed doors, all the arbitrators being cerning the Award. present, to deliberate on the questions submitted to its decision. During these deliberations, which were continued at successive meetings till the 14th of August, Lord Hannen presented a form of an award, blank spaces being left in it for the insertion of the decisions of the tribunal on the various points at issue, which were specifically set out in the draft. This form the tribunal adopted, and, the preamble having been unanimously agreed to without modification, the arbitrators proceeded to consider the five points mentioned in Article VI. of the treaty. As to the first point, relating to "what exRussian Rights of clusive jurisdiction" in Behring Sea, and" what Jurisdiction and exclusive rights in the seal fisheries therein," Fishing in BehRussia asserted and exercised prior and up to ring Sea. the cession of Alaska to the United States, it was decided that a distinction must be made between different periods, and that what took place prior to the ukase of 1821 might be treated as immaterial. Baron de Courcel then presented the following project of a decision: "By the ukase of 1821 Russia claimed jurisdiction in the sea now known as the Behring's Sea to the extent of 100 Italian miles from the coasts and islands belonging to her, but in the course of the negotiations which led to the conclusion of the treaties of 1824 with the United States and of 1825 with Great Britain, Russia admitted that her jurisdiction in the said sea should be restricted to the reach of cannon shot from shore, and it appears that, from that time up to the time of the cession of Alaska to the United States, Russia never asserted in fact or exercised any exclusive jurisdiction in Behring's Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters." This was adopted by a majority composed of Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. The views of Mr. Justice Harlan on this question are fully set forth in an opinion subsequently drawn out by him, and printed. In this opinion he holds that "there is nothing in the record which even The tribunal at the close of its deliberations adopted a resolution, proposed by Mr. Justice Harlan, reserving to each arbitrator the right to file with the secretary, at any time between the adjournment and Jaunary 1, 1894, an opinion or opinions, which should be regarded as annexed to the final protocol. Both Mr. Justice Harlan and Senator Morgan filed opinions under this resolution. (Fur Seal Arbitration, I.) * remotely sustains the theory that Russia intended, by the ukase of 1799, to assert exclusive jurisdiction over, or any sovereign control of, the northeastern sea outside of territorial waters;" that there is no "document or fact in the public history of Russia, as disclosed in the record before us, which justifies the contention that that country asserted or exercised, prior to 1821, exclusive jurisdiction over the waters of Behring Sea or any exclusive rights in the seal fisheries in that sea, outside of territorial waters;" that the "evidence is overwhelming that the positions taken by the United States and Great Britain were substantially alike, namely, that its (Russia's) interdict of the approach of foreign vessels nearer to its coast than 100 Italian miles was contrary to the principles of international law and in violation of the rights of the citizens and subjects of other countries engaged in business on the waters covered by that regulation;" and that "by the treaty of 1824 with the United States, as well as by that of 1825 with Great Britain, the above ukase was withdrawn, and the claim of authority or the power to prohibit foreign vessels from approaching the coasts nearer than 100 Italian miles was abandoned by the greement embodied in those treaties to the effect that the respective citizens and subjects of the high contracting parties should not be troubled or molested, in any part of the Great Ocean commonly called the Pacific Ocean, either in navigating the same or in fishing therein, or in landing at such parts of the coasts as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in other a ticles of these treaties." Senator Morgan maintained that in the region in question Russia "directed the energy and capital of her people to the collection of furs," and created monopolies, all directed to the same end; that these privileges were retained and exclusively exercised by Russian subjects till 1867; that the claim of mare clausum "was carried into effect as to the control of the fur trade;" that the Russians "did not hunt whales at that period to any great extent, nor did they conduct fisheries for commercial purposes;" that the ukase of 17 9 "covered Behring Sea and all hunting and trading in those waters:" that the ukase of 1821, that of 1799 having been found insufficient, prohibited "navigation" within 100 Italian miles of the coast as well as "the pursuit of commerce, whaling, and fishing, and all other industries" in the waters covered by it; and that the right of Opinion of Mr. Justice Harlan, Fur Seal Arbitration, I. 65, 83, 110. "hunting in the northeastern seas and along the coasts of Amer. ica," which was "made the sole ground of the ukase of 1799, was not touched by the treaty of 1821 with the United States, or the treaty of 1825 with Great Britain." Senator Morgan voted against Baron de Courcel's project, reserving the right to propose an amendment when the second point should have been reached. Great Britain. As to this second point-"How far were Recognition of Rus- these [Russia's] claims of jurisdiction as to the sian Rights by seal fisheries recognized and conceded by Great Britain?"-a majority of the tribunal, composed of the same members as the majority on the first point, adopted the following decision: "Great Britain did not recognize or concede any claim upon the part of Russia to exclusive jurisdiction as to the seal fisheries in Behring Sea outside of ordinary territorial waters." Senator Morgan voted against this decision, and presented the following motion as a substitute for the decisions as to the first two points: "1. From the time that Russia first discovered and occupied Behring Sea and the coasts and islands thereof, until she ceded a portion thereof to the United States, she claimed the seal fisheries in Behring Sea, and exercised exclusively the right to the usufruct and to own the product of such seal fisheries, and to protect the same against being interfered with in those waters by the people of any other country; and also the exclusive jurisdiction that was found necessary for those purposes; and also the exclusive jurisdiction to regulate the hunting of fur-seals in those waters; and to grant the right of hunting them to her own subjects. "2. The attitude of Russia towards the fur-seal fisheries in Behring Sea, as described above, being known to Great Britain, she acquiesced in the same without objection." This motion was negatived by all the arbitrators except Senator Morgan.2 The Phrase "Pacific As to the third point, whether Behring Sea was included in the phrase "Pacific Ocean" Ocean" and Rusin the treaty between Great Britain and Russian Rights after sia of 1825, and what rights, if any, were ex1825. clusively exercised by Russia in Behring Sea after that treaty, the arbitrators agreed that the two questions thus connected should be considered separately. 2 Senator Morgan's opinion in support of his substitute is printed in the Fur Seal Arbitration, I. 31. |