of the helpless young thereby left to perish; that it is wholly destructive of the seal property and of the industries and commerce founded upon it, and that the only way in which these can be preserved to the world and to the governments to which they belong is by prohibiting pelagic sealing in the waters frequented by the herd.' "Ninth. That the investment of these adventurers in pelagic sealing is speculative, generally unprofitable, and, when compared with the seal-skin industry of Great Britain, France, and the United States, which is dependent upon this seal herd, very insignificant; and that the profits, if any, resulting from pelagic sealing are out of all proportion to the destruction that it produces. Upon the foregoing propositions, if they shall be found to be established, the material questions for the determination of this high Tribunal would appear to be: "First. Whether individuals, not subjects of the United States, have a right as against that Government and to which it must submit, to engage in the devastation complained of, which it forbids to its own citizens, and which must result in the speedy destruction of the entire property, industry, and interests involved in the preservation of this seal herd. "Second. If any such right can be discovered, which the United States confidently deny, whether the United States and Great Britain ought not in justice to each other, in sound policy, for the common interest of mankind, and in the exercise of the humanity which all civilized nations accord to wild creatures, harmless and valuable, to enter into such reasonable arrangement by concurrent regulations or convention, in which the participation of other Governments may be properly invited, to prevent the extermination of this seal herd, and to preserve it for themselves and for the benefit of the world. "Upon the first of the questions thus stated the United States Government will claim: "First. That, in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd as the natural product of its soil, made chiefly available by its protection and expenditure, highly valuable to its people and a considerable source of revenue, as entitles it to preserve the herd from destruction, in the manner complained of, by an employment of such reasonable force as may be necessary. "Second. That, irrespective of the distinct right of property in this seal herd, the United States Government has for The fourth, fifth, sixth, seventh, and eighth propositions in substance asserted that Russia down to 1867, and then the United States down to 1886, prohibited the killing of fur seals in the waters of Behring Sea, and that Great Britain acquiesced in the prohibition, which had "never been questioned until the excessive slaughter of these animals, now complained of, was commenced by individual adventurers about the year 1885." itself, and for its people, an interest, an industry, and a commerce derived from the legitimate and proper use of the produce of the seal herd on its territory, which it is entitled, upon all principles applicable to the case, to protect against wanton destruction by individuals for the sake of the small and casual profits in that way to be gained; and that no part of the high sea is, or ought to be, open to individuals for the purpose of accomplishing the destruction of national interests of such a character and importance. "Third. That the United States, possessing, as they alone possess, the power of preserving and cherishing this valuable interest, are in a most just sense the trustee thereof for the benefit of mankind and should be permitted to discharge their trust without hindrance. "In respect to the second question heretofore stated, it will be claimed by the United States, that the extermination of this seal herd can only be prevented by the practical prohibition of pelagic sealing in all the waters to which it resorts. "The United States Government defers argument in support of the propositions above announced until a later stage of these proceedings. "In respect to the jurisdiction conferred by the treaty, it conceives it to be within the province of this high Tribunal to sauction by its decision any course of executive conduct in respect to the subject in dispute, which either nation would, in the judgment of this Tribunal, be deemed justified in adopting, under the circumstances of the case; or to prescribe for the high contracting parties any agreement or regulations in respect to it, which in equity, justice, humanity, and enlightened policy the case appears to require." In conclusion, the Case invoked a judgment in favor of the claims of the United States. Falsification of In connection with the preparation of the Case of the United States there occurred a curious incident, which it is necessary here to mention. Reference has been made to documentary evidence obtained from the Alaskan archives, tending to show the assertion by Russia of exclusive jurisdiction and of exclusive rights as to the fur seals in Behring Sea. On the 2d of November 1892 Mr. Foster, the agent of the United States, informed Mr. Tupper, the British agent, that it had just been ascertained that some of the translations were incorrect, and that as soon as an examination of the matter was completed he would furnish revised and corrected translations, and indicate the pages in the Case of the United States where the erroneous translations had been quoted or referred to. Mr. Foster further stated that the nature of the errors that had been dis covered made it certain that the United States had been grossly imposed upon by the person employed in the work of translation. On the 19th of November he again communicated with Mr. Tupper on the subject, transmitting a list of upwards of fifteen documents, which, as the result of examination, he withdrew in their entirety, and inclosing revised translations of such documents as were retained. It appears that the original translator of the documents, a native Russian named Ivan Petroff, with a view to ingratiate himself with the Government of the United States and to impress upon it the importance of the Alaskan archives, in the hope that he might be employed to classify and translate them, made what Mr. Foster described as "an astounding series of false translations." The character and purport of these translations may be disclosed by a few examples. By one of them Count Nesselrode was made to declare on August 18, 1824, that it was the Emperor's firm determination to protect the Russian-American Company's interests "in the catch and preservation of all marine animals, and to secure to it all the advantages to which it is entitled under the charter and privileges." The correct translation shows that Count Nesselrode, referring to the com pany, said that "the government has never lost sight of its interests." Again, on the 21st of July 1824, a special committee, consisting of Count Nesselrode and other dignitaries of the empire, made a report in response to an application of the directors of the Russian-American Company for an interpretation of the treaty concluded between Russia and the United States in that year. By the Petroff translation the report was made to say that "the sovereignty of Russia over the shores of Siberia and America, as well as over the Aleutian Islands and the intervening sea, has long since been acknowledged by all the powers," and consequently that "these coasts, islands, and seas" could not have been referred to in the convention. By the correct translation it appears that the passage referred only to "the coasts of Siberia and the Aleutian Islands," and did not mention either the coasts of America or "the intervening sea." Without giving other illustrations of the effect of the false translations it may in a word be stated that their detection and withdrawal removed practically the only evidence from destinctively Russian sources, apart from the ukase of Case of the United States, 61. 1 2 Case of United States, 54; Counter Case of the United States, 157. 1821, of the assertion by Russia of any exceptional jurisdiction in Behring Sea.1 The British Case. The British Case, adverting to the fact that "Behring Sea is the common highway to the Arctic Ocean, with its valuable fisheries," and "Great Britain's highway to her possessions in the north via the Yukon River (of which the free navigation is guaranteed by treaty'), as well as the route for such communication as may be held or attempted with the northern parts of the coasts of North America to the east of Alaska, and with the estuary of the great Mackenzie River," maintained that Behring Sea "is an open sea in which all nations of the world have the right to navigate and fish;" and that "the rights of navigation and fishing can not be taken away or restricted by the mere declaration or claim of any one or more nations," since "they are natural rights, and exist to their full extent unless specifically modified, controlled, or limited by treaty." In support of these propositions the British Case maintained, in the first place, by a series of historical notes, that the discovery and exploration of the waters, coasts, and islands in the quarter of the globe in question were largely due to the navigation of various nations, and especially of Great Britain; that there was no evidence that before 1821 "Russia either asserted or exercised in the nonterritorial waters of the North Pacific any rights to the exclusion of other nations;" that "during the whole of that period the shores of America and Asia belonging to Russia as far north as Behring Straits, and the waters lying between those coasts, as well as the islands therein, were visited by the trading vessels of all nations, including those sailing under the flags of Great Britain, the United States, Spain, and France, with the knowledge of the Russian authorities;" and that "the only rights, in fact, exer "It is a singular incident that when the case of the United States came to be prepared and the Russian archives were examined, what had been assumed in the legal proceedings to be historical facts could scarcely be substantiated by a single official document."-The Hon. J. W. Foster, in the North American Review, CLXI. (December, 1895) 698. By Article XXVI. of the Treaty of Washington of May 8, 1871, Great Britain guarantees to the United States in perpetuity the free navigation of the river St. Lawrence, ascending and descending, from, to, and into the sea, the United States reciprocally guaranteeing to Great Britain in like manner the navigation of "the rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to, and into the sea." cised by Russia or on her behalf, were the ordinary territorial rights connected with settlements or annexations of territory consequent upon such settlements, and the only rights she purported to deal with or confer were rights and privileges given to the Russian-American Company, as Russian subjects, in preference over other Russian subjects."1 Taking up in its order the ukase of 1821, the British Case maintained that this edict, which was "the first and only attempt on the part of Russia to assert dominion over, and restrict the rights of other nations in, the non-territorial waters of the North Pacific, including those of Behring Sea, was made the subject of immediate and emphatic protest by Great Britain and the United States of America;" that "Russia thereupon unequivocally withdrew her claims to such exclusive dominion and right of control;" that "the conventions of 1824 and 1825 declared and recognized the rights of the subjects of Great Britain and the United States to navigate and fish in all parts of the non-territorial waters over which the ukase purported to extend;" and that "from the year 1821 to the year 1867 the rights of navigation and fishing in the waters of Behring Sea were freely exercised by the vessels of the United States, Great Britain, and other foreign nations, and were recognized as existing by Russia."2 Bancroft, History of Alaska, 37, 63–74, 141, 157, 174, 194-197, 217-221, 186, 191, 224, 243, 255, 243, 270-272, 267–270, 296, 273, 325, 285, 274, 275, 244, 296, 389, 384, 395, 398, 399, 305, 377-379, 338, 339, 321, 302, 391, 393, 301, 299, 308, 309, 379380, 389, 404-409, 477, 446, 451, 454, 478, 479, 461, 480, 467, 470, 429, 483, 472, 480, 503, 504, 505, 506, 501, 522, 525, 528, 531, 591; History of the Northwest Coast, I. 185, 204-212, 250-257, 297, 304-306, 307, 308, 311, 312-317, 318, 319, 320, 325, 326, 329, 335, 338, 340; Cook, Voyage to the Pacific Ocean, 1776-1780, London, 1874; Sauer's Account of Billing's Expedition, 279, 281; A Voyage Around the World, London, 1789; Meares's Voyages, 1790; Annual Register, 1790, XXXII. 287; Vancouver, III. 498; Voyage of Discovery to the Pacific Ocean, London, 1798; Am. State Papers, For. Rel. V. 461, 446, 449, 436; IV. 406; Greenhow, History of Oregon and California, 266, 267; North Am. Review, 1822, Vol. XV. Article XVIII.; Encyclopædia Britannica, 9th ed. XIX. 319; Quarterly Review, January, 1822; H. Ex. Doc. 177, 40 Cong. 2 sess. 149. 2 Krusenstern's Voyage, I. 14; Am. State Papers, For. Rel. V. 438-443, 448, 453-454, 452, 465-466, 436; various documents printed in the Appendix to British Case, Vols. I., II., III., IV.; Bancroft, History of Alaska, 532, 446, 534, 537-539, 540, 546, 536, 544, 582, 565, 547, 548-552, 555, 583, 553, 556, 557, 559, 568, 583, 558-560, 576, 584, 585, 572, 586, 574, 570, 668, 592, 578, 579, 580, 669, 593; S. Ex. Doc. 106, 50 Cong. 2 sess. 204, 205, 207, 208, 210, 259, 262, 268, 233, 234, 238, 251; Wharton, Int. Law Digest, II. 226; I.3; Letters and Writings of Madison, Philadelphia, 1865, 446; Greenhow, Memoir Hist. and Polit. of 5627-52 |