"We do certify this English version to be true and accurate and have signed the same at Paris this 15th day of August 1893. "I approve declarations I. and III. "I approve declarations I. and III. The Result of the "ALPH DE COURCEL. "JOHN M. HARLAN. "HANNEN. "JNO S D THOMPSON. On the various questions of right submitted to the tribunal its decision was against the United States; but to anyone who has read the foregoing pages it must be evident that this result was not due to any lack of ability or of effort on the part of the Ameri can agent and counsel. It must be equally evident that it was due to certain historical and legal antecedents, among which we may mention the following: 1. That when the first seizures were reported in 1886 the Department of State not only possessed no information concerning them, but was unable to give any explanation of them; and that when the circumstances of the seizures were ascertained, even though the full judicial record had not then been received, the vessels were ordered to be released.' 2. That the court in Alaska, in condemning the vessels and punishing their masters and crews, proceeded on a doctrine of mare clausum, which the United States had never asserted and which the government afterwards disavowed." 3. That the treaty ceding Alaska to the United States did not purport to convey the waters of Behring Sea, but in terms conveyed only "the territory and dominion" of Russia "on the continent of America and in the adjacent islands," and drew a water boundary so as to effect a transfer of the islands, many of them nameless, which lay in the intervening seas.3 4. That the ukase of 1821, which contained the only distinctive claim of mare clausum ever put forward by Russia, did not assume to treat the whole of Behring Sea as a close sea, but only to exelude foreign vessels from coming within one 1 Supra, 772, 773. hundred Italian miles of the coast, from the fifty-first parallel of north latitude to Behring Straits, without discrimination as to localities.1 5. That against this ukase both the United States and Great Britain protested; and that by the treaties of 1824 and 1825 Russia agreed not to interfere with their citizens or subjects either in navigating or in fishing in "any part" of the Pacific Ocean, thus abandoning the exclusive jurisdictional claim announced in the ukase.2 6. That it was declared in the diplomatic correspondence that if the phrase "Pacific Ocean," as used in those treaties, included Behring Sea, the United States had "no well-grounded complaint" against Great Britain; and that it was unanimously found by the arbitrators that the phrase Pacific Ocean did include Behring Sea. 7. That while the tribunal, by six voices to one, found that there was no evidence to substantiate the supposition that Russia had asserted exceptional claims as to the fur seals, there was affirmative evidence that she had not done so in recent years.1 8. That it was admitted that no municipal law of the United States had treated the species, individually or collectively, as the subject of property and protection on the high seas." 9. That it was also admitted by the representatives of the United States that, for the claim of property and protection on the high seas, there was no precise precedent in international law, though it was strongly maintained that the claim was justified by analogies," 10. That the effort to support this claim was embarrassed by its relation to the subject of visitation and search on the high seas. The question of regulations stood on different grounds. It 7 Supra, 842, 843, 845, 898, 902. “They [the neutral arbitrators] were confronted with a question novel in its facts and with a claim on the part of the United States which to them seemed in conflict with the accepted doctrine of the freedom of the seas." (Final Report of the Agent of the United States, 10.) had, as we have seen, been agreed that if the determination should be against the United States on questions of exclusive jurisdiction the tribunal should "then determine what concur rent regulations outside the jurisdictional limits of the respective governments are necessary, and over what waters such regulations should extend." In regard to the regulations adopted by the tribunal, the agent of the United States said:1 2 "The regulations as finally framed and promulgated are the result of an honest and conscientious effort on the part of the neutral arbitrators to do all they conceived possible and necessary for the protection and preservation of the seal herd consistent with their decision on the fifth point. These regulations go further than the provisions which our government has proposed in the past, but it is to be observed that later investigations have revealed perils to which the seals are exposed not then known. It is to be hoped that the regulations when put in operation will realize the best expectations of the tribunal. Much depends on the manner in which they are enforced. It is not to be doubted that both governments, in deference to the expressed directions of the tribunal and to their own obligations, will adopt all necessary legislation and rules to give them full force and effect. If the recommendation made by the tribunal for a complete cessation of taking seals both on land and at sea for a few years be adopted, I shall look for satisfactory results from the operation of the regulations."3 By an act of February 21, 1893, it was provided that whenever the Government of the United States should conclude an effective international arrangement for the protection of the fur seals in the north Pacific Ocean, by agreement with any other power or as the result of the pending arbitration, the laws of the United States for the protection of the fur seals and other furbearing animals within the limits of Alaska and in the waters. thereof should by a proclamation of the President be extended over all that portion of the Pacific Ocean included in such international arrangement. The result of the arbitration having Final Report of the Agent of the United States, Fur Seal Arbitration, I. 11. 2 Supra, 801. 3The expenses of the United States in the arbitration amounted to $224,514.39. (H. Ex. Doc. 306, 53 Cong. 3 sess.) By an act of March 2, 1895, the Comptroller was directed to allow the disbursements made by the disbursing officers of the United States. (28 Stats. at L. 843.) For a review of the arbitration by Mr. Foster, the agent of the United States, see the North American Review for December, 1895 (CLXI.) 693. +27 Stats. at L. 472. rendered this act inappropriate, an act was approved April 6, 1894, for executing the regulations of the Paris tribunal, and a similar act was passed in Great Britain. No agreement for the temporary suspension of sealing was effected. Damages. The damages claimed by Great Britain as growing out of the controversy amounted to $542,169.26, without interest, which was demanded at the rate of 7 per cent. On August 21, 1894, Mr. Gresham, Secretary of State, offered, as the result of a somewhat extended negotiation, the sum of $425,000 in full and final settlement of all claims, "subject to the action of Con. gress on the question of appropriating the money." "The President," said Mr. Gresham, "can only undertake to submit the matter to Congress at the beginning of its session in December next, with a recommendation that the money be appropriated and made immediately available for the purpose above expressed, and if at any time before the appropriation is made your [the British] government shall desire, it is understood that the negotiations on which we have for some time been engaged for the establishment of a mixed commission will be renewed." The offer was accepted by Sir Julian Pauncefote on these terms. At the ensuing session Congress did not appropriate the money, and the negotiations for a mixed commission were renewed. On February 8, 1896, a convention was concluded at Washington by Mr. Olney, Secretary of State, and Sir Julian Pauncefote for the appointment of two commissioners, one by the United States and the other by Great Britain, to meet and sit at Victoria, and also, if either commissioner should formally so request, to sit at San Francisco for the purpose of determining the claims for damages. The convention includes by designation the cases of the Wanderer (1887-1889), Winifred (1891), Henrietta (1892), and Oscar and Hattie (1892), in addition to the cases mentioned in the findings of fact of the Paris tribunal. Any cases in which the commissioners may be unable to agree are to be referred to an umpire to be appointed by the two governments, or, if they disagree, by the President of Switzerland. 128 Stats. at L. 52; S. Ex. Doc. 67, 53 Cong. 3 sess; For. Rel. 1894, App. 1, pp. 107–233. H. Ex. Doc. 132, 53 Cong. 3 sess. The commissioners under this convention have been duly appointed, the commissioner on the part of the United States being the Hon. William L. Putnam, a judge of the United States Circuit Court of Appeals, and on the part of Great Britain the Hon. George Edwin King, a judge of the Supreme Court of the Dominion of Canada. Various sessions have been held. Counsel before the commission are: On the part of the United States, the Hon. Don M. Dickinson, senior counsel; Messrs. Robert Lansing, junior counsel, and Charles B. Warren, associate counsel; on the part of Great Britain, Messrs. Frederic Peters, Q. C., senior counsel; Frederic L. Beique, Q. C., associate counsel; Ernest V. Bodwell, junior counsel and agent, and Sir Charles Tupper, Q. C., associate counsel. The secretary of the commission is Mr. Chandler P. Anderson, of New York City. The clerks to the commission are Messrs. Reuel Small, Thomas R. E. McInnes, J. C. Clay, and Thomas P. Owens.1 It is proper to state that the form "Behring" instead of "Bering," in referring to the sea of that name, has been employed in this chapter merely for the sake of uniformity, the form "Behring" having been used in many official and historical documents which the present writer deemed it to be his duty to quote without any alteration whatever. 5627-61 |