solutely cease; (3) that the United States, if the award should be adverse to them on the question of legal right, should compensate British subjects for the losses which they might have sustained by reason of their compliance with the British proclamation.'

tions of Right.

While these negotiations were going on the Lord Salisbury's Ar- discussion of questions of legal right was also gument on Ques- proceeding. On the 5th of June 1890 Sir Julian Pauncefote left at the Department of State a copy of an instruction from the Marquis of Salisbury of May 22, 1890, in answer to Mr. Blaine's note of the 22d of the preceding January. With regard to the argument advanced in that note, Lord Salisbury said it was obvious that two questions were involved: First, whether the pursuit and killing of fur seals in certain parts of the open sea were, from the point of view of international morality, an offense contra bonos mores, and, secondly, whether, if such were the case, this fact justified the seizure on the high seas and subsequent confiscation in time of peace of the private vessels of a friendly nation. Referring to a special message of President Tyler to Congress of February 27, 1843, Lord Salisbury said it was an axiom of international maritime law that such action was admissible only in the case of piracy or in pursuance of special international agree ment. The pursuit of seals in the open sea had never been considered as piracy by any civilized state. Even in the case of the slave trade, a practice which the civilized world had agreed to look upon with abhorrence, the right of arresting the vessels of another country could be exercised only by special international agreement, and no one government had been allowed that general control of morals in this respect which Mr. Blaine claimed on behalf of the United States in regard to seal hunting. But Her Majesty's government, said Lord Salisbury, must also question whether the killing of seals could of itself be regarded as contra bonos mores, unless and until for special reasons it had been agreed by international arrangement to forbid it. Fur seals were indisputably animals feræ naturæ, and these had universally been regarded by jurists as res nullius until they were caught, and no person, therefore, could have property in them until he had actually reduced them to possession by capture. As to the argument that the fur seal fisheries had been exclusively controlled by Russia and

For. Rel. 1890, 436.

the United States successively down to 1886, Lord Salisbury quoted from the correspondence in relation to the ukase of 1821, and from certain subsequent correspondence, to show that Russia had enjoyed no monopoly of the fisheries. He also denied that from 1867 to 1886 the enjoyment of the seal fisheries by the United States was uninterrupted, and he quoted the reports of various officials of the United States from 1870 to 1884 in support of this denial. As to the argument that the taking of seals in the open sea rapidly led to their extinction, he declared that the statement would admit of reply, and that abundant evidence could be adduced on the other side, but that, as it had been proposed that this question should be examined by a commission of experts to be appointed by the two governments, it was not necessary to deal with it on the present occasion. The negotiations then in progress in Washington proved, he said, the readiness of Her Majesty's government to consider whether any special international agreement was necessary for the protection of the fur-seal industry, and in its absence they were unable to admit that the case put forward on behalf of the United States afforded any sufficient justification for the forcible action already taken against peaceable subjects of Her Britannic Majesty engaged in lawful operations on the high seas.1

Sea.

To this communication Mr. Blaine replied Mr. Blaine's Argu- on the 30th of June in a note to Sir Julian ment as to Russian Pauncefote. This note, which is of considerRights in Behring able length, is almost wholly devoted to an ar gument to show that the jurisdictional claim of Russia put forth in the ukase of 1821 was acquiesced in by Great Britain and the United States north of the sixtieth parallel of north latitude. Mr. Blaine contended that the protest of Mr. Adams was not against the Russian claim itself, but against its extension southward to the fifty-first degree of north latitude; that the term "Continent of America,” as used by Mr. Adams, was employed not in the geographical sense, but to distinguish the territory of "America" from the territory of the "Russian possessions;" that the phrase "Northwest coast" was used in two senses-one including the northwest coast of the Russian possessions, and the other merely the coast of America whose northern limit was the sixtieth parallel of north latitude, and that it was used by Mr. Adams,

For. Rel. 1890, 419-424.

as well as by British statesmen at the time, in the latter sense. Mr. Blaine also contended that in the treaties concluded by the United States and Great Britain with Russia in 1824 and 1825 there was no "attempt at regulating or controlling, or even asserting an interest in, the Russian possessions and the Behring Sea, which lie far to the north and west of the territory which formed the basis of the contention." He argued that the terms "Great Ocean," "Pacific Ocean," and "South Sea" did not include the Behring Sea. The treaties in question were, he contended, a practical renunciation both on the part of England and the United States of any rights in the waters of Behring Sea during the period of Russia's sovereignty. In regard to the waters of that sea, he declared that the ukase of 1821 stood unmodified, and that both the United States and Great Britain recognized, respected, and obeyed it. Whatever duty Great Britain owed to Alaska as a Russian province was not, he declared, changed by the mere fact of the transfer of sovereignty to the United States; and in conclusion he reasserted that no destructive intrusion by sealers into Behring Sea began until 1886.'

Arbitration.

The answer of Lord Salisbury to this note Lord Salisbury's An- bears date the 2d of August. In this answer swer and Offer of Lord Salisbury maintained that the protest of Mr. Adams covered the whole of the extraor dinary jurisdictional claim made in the ukase of 1821, and that in all the correspondence there was no reference to any distinctive name for Behring Sea, or any intimation that it could be considered otherwise than as forming an integral part of the Pacific Ocean. When Mr. Adams declared that the United States "could admit no part" of the claims set forth in the ukase, his clear object was to deny that the Russian settlements gave Russia any right to exclude the navigation or fishery of other nations over any part of the sea on the coast of America; and such, also, was the object of the treaties of 1824 and 1825. Lord Salisbury also quoted extracts from the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named as minister plenipotentiary to negotiate the treaty of 1825, by which it appeared, first, that England refused to admit any part of the claim asserted in the ukase of 1821 to an exclusive jurisdiction of one hundred Italian miles from the coast from Behring Straits to

I For. Rel. 1890, 437-448.

the fifty first parallel of north latitude; second, that the convention of 1825 was regarded on both sides as a renunciation by Russia of that claim in its entirety, and third, that, though Behring Straits was known and specifically provided for, Behring Sea was not known by that name, but was regarded as part of the Pacific Ocean. Lord Salisbury further contended that the public right to fish, catch seals, or pursue any other lawful occupation on the high seas could not be held to be abandoned by a nation from the mere fact that for a certain number of years it had not suited the subjects of that nation to exercise it; and in conclusion he proposed that if the Government of the United States, after an examination of the evidence and argument which he had produced, should still differ from Her Majesty's government as to the legality of the recent captures in Behring Sea, the question, together with the issues that depended upon it, should be referred to impartial arbitration.' To this communication Mr. Blaine replied Mr. Blaine's Reply; on the 17th of December; and at the outset the "Pacific he observed that legal and diplomatic quesfor Arbitration. tions, apparently complicated, were often found, after prolonged discussion, to depend upon the settlement of a single point. Such was, he said, the position of the United States and Great Britain. Great Britain contended that the phrase "Pacific Ocean," as used in the treaties of 1824 and 1825, included Behring Sea; the United States contended that it did not. If Great Britain could maintain her position on this point, the Government of the United States had, Mr. Blaine declared, "no well-grounded complaint against her." If, on the other hand, the United States could prove that Behring Sea at the date of the treaties was understood by the three signatory powers to be a separate body of water, and was not included in the phrase "Pacific Ocean," then the American case against Great Britain was "complete and undeniable." Mr. Blaine then renewed and amplified the arguments which he had previously advanced to show that the term "Pacific Ocean" was not intended to include Behring Sea.2

Ocean;" Questions

For. Rel. 1890, 456–465.

He also referred to an act of the British Parliament, passed after the transportation of Napoleon to the island of St. Helena, by which power was assumed to exclude ships of any nationality not only from landing on the island, but from hovering within eight leagues of its coast, and to the case of the pearl fisheries in the Indian Ocean, under the control of the British Government.

In answer to the offer of Lord Salisbury to arbitrate, Mr. Blaine proposed five questions on which, in the opinion of the President, a substantial arbitration might be had. The first four related to the jurisdictional rights of Russia and their transfer to the United States. The fifth related to the rights of the United States as to the fur-seal fishery in the waters of Behring Sea outside of the ordinary territorial limits, whether such rights grew out of the cession by Russia, or "of the ownership of the breeding islands and the habits of the seals in resorting thither and rearing their young thereon and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States." If the determination of the foregoing questions should leave the subject in such a position that the concurrence of Great Britain was necessary for the protection of the fur seal, it was further proposed that the tribunal of arbitration should determine what measures were necessary for that purpose. In conclusion, Mr. Blaine declared that the repeated assertions that the United States demanded that the Behring Sea be pronounced mare clausum, were without foundation. "The government," he said, "has never claimed it and never desired it. It expressly disavows it." He further stated that the views of the President were well expressed by Mr. Phelps in his dispatch of September 12, 1888, and from this dispatch he then cited the passage which has already been quoted.

Modus Vivendi.

On the 21st of February 1891 Lord SalisAgreement on a bury replied to this note, controverting the argument advanced in it as to the meaning of the treaties of 1824 and 1825, and proposing certain modifications of the questions to be submitted to arbitration.'

For. Rel. 1891, 542. In January 1891 a motion was made before the Supreme Court of the United States for leave to file an application for a writ of prohibition to the district court of the United States for the district of Alaska, to restrain the enforcement of the sentence of condemnation and forfeiture entered on September 19, 1887, in the case of the W. P. Sayward, one of the British Columbian sealers, on the ground that the court was without jurisdiction in the premises. Leave having been granted, the application was duly filed. The petitioner for the writ was one Cooper, the owner of the Sayward, but with his petition a suggestion was presented by Sir John Thompson, attorney-general of Canada, with the knowledge and approval of the imperial government, requesting the aid of the court for the claimant, a British subject. The case was argued on November 9 and 10, 1891, and was decided February 29, 1892, the day on which the treaty of arbitration was signed. The application was denied on technical grounds, relating to the law and practice governing the issuance of writs of prohibition. (In re Cooper, 143 U. S. 472.)