66 On these grounds the British Case maintained that Russia's rights as to jurisdiction and as to the seal fisheries in Behring Sea," referred to in point 4 of Article VI. of the treaty of arbitration, "were such only as were hers according to international law, by reason of her right to the possession of the shores of Behring Sea and the islands therein;" that the treaty of cession, which drew a water line merely for the purpose of dividing the numerous islands, did "not purport either expressly or by implication to convey any dominion in the waters of Behring Sea, other than in the territorial waters which would pass according to international law and the practice of nations as appurtenant to any territory conveyed;" that "from the year 1867 down to the year 1886" the action of the United States and Russia was "consistent only with the view that the rights possessed by the United States and by Russia respectively in the waters of Behring Sea were only those ordinarily incident to the possession of the coasts of that sea and the islands situated therein." In support of these propositions the British Case said that when Russia released her sovereignty over the Pribilof Islands sealers at once landed there, those from the New England States finding competitors from the Hawaiian Islands. In 1868 240,000 seals were reported to have been taken, and 87,000 in the following year. With knowledge of this fact the Government of the United States confined its legislation and executive orders to the protection of the seals on the islands, though reports were frequently made as to pelagic killing. It was not till 1881 that the Treasury Department, in the letter to Mr. Ancona, took the ground that the United States had jurisdiction over the eastern part of Behring the Northwest Coast, etc.; The Geography of Oregon and California, etc., New York, 1845; History of Oregon and California; Report on the Seal Islands of Alaska, Washington, 1881, 6, 7, 110; Woolsey, Int. Law, 3d ed. 83; Davis, Outlines of Int. Law, 44; J. B. Angell, The Forum, November, 1889; Phillimore, Int. Law, 2d ed. I. 241; Hall, Int. Law, 147; Bancroft, History of the Northwest Coast, I. 341, 342; Dall, Alaska, 233, 234; Beecher's Voyage to the Pacific and Behring Strait, II. 335; H. Ex. Doc. 177, 40 Cong. 2 sess. 39. 85, 132, 183; Message of President Van Buren, December 3, 1838, Br. and For. State Papers, XXVI. 1330; Encyclopædia Britannica, XIX. 321; Fishery Industries of the United States, Sec. V., vol. 1, 209, 210; vol. 2, 8485,314; U. S. Stats. at L. 539-543; Congressional Globe, December 11, 1867, 40 Cong. 2 sess. part 1, 138; July 1, 1868, 40 Cong. 2 sess. part 4, 3667, 3668; July 9, 1868, 40 Cong. 2 sess. part 5, 490. Varions gazetteers, dictionaries, and geographical works were also cited to show that in 1824, as well as later, Behring Sea was understood to form an integral part of the Pacific Ocean. Sea; but no seizures were made, nor were any warnings given to any British vessel engaged in sealing beyond the ordinary territorial limits till 1886. By correspondence with Russia in 1882 the Department of State of the United States was informed that Russia claimed no jurisdiction along her coasts and islands beyond those limits. And in 1885 Mr. Bayard, as Secretary of State, writing to Mr. Lothrop, the minister of the United States at St. Petersburg, in relation to the seizure of the American schooner Henrietta, said that a right of redress "would arise, if it should appear that, while the seizure was made within the three-mile zone, the alleged offense was committed exterior to that zone, and on the high seas." The British vessels seized in Behring Sea in 1886 and 1887 were, said the British Case, condemned on the ground that that sea was a mare clausum, and that as such a part of it had been conveyed by Russia to the United States. This ground was subsequently abandoned by the United States, and a claim was set up to an exclusive jurisdiction of a hundred miles from the coast, and also to property in and a right of protection over fur seals in nonterritorial waters.1 As to the claim of property in and a right to protect the fur seals outside of the three-mile limit, the British Case maintained that the claim was "entirely without precedent," and "in contradiction of the position assumed by the United States in analogous cases on more than one occasion;" that outside of Behring Sea citizens of the United States had pursued seals for years without let or hindrance and with the full knowledge of their government, and that the proposition that on one side of the Aleutian Islands a seal was the property of the United States and on the other side the property of any man who could catch it could be supported only on the ground that 1 Elliott, Census Report, 25, H. Ex. Doc. 3883, 50 Cong. 2 sess. 58, 87, 88; U. S. Stats. at L. XV. 241; Ex. Doc. 109, 41 Cong. 2 sess.; H. Ex. Doc. 83, 44 Cong. 1 sess. 30, 32–34, 125; S. Ex. Doc. 106, 50 Cong. 2 sess. 139, 140, 134, 260, 261, 253, 255, 259, 258, 263, 269, 267, 270, 135, 185, 40, 84, 101, 89; H. Ex. Doc. 130, 44 Cong. 1 sess. 124; H. Ex. Doc. 40, 45 Cong. 3 sess. 65, 68; H. Ex. Doc. 35, 44 Cong. 1 sess.; H. Ex. Doc. 153, 49 Cong. 1 sess.; H. Misc. Doc. 602, 50 Cong. 1 sess. 28, 33; H. Report 623, 44 Cong. 1 sess.; H. Ex. Doc. 153, 49 Cong. 1 sess.; H. Report 3883, 50 Cong. 2 sess. 10, 23, 24; Wharton, Int. Law Digest, I. 106; Fishery Industries of the U. S., sec. 5, Vol. II. 20, 85; Vol. III. 313, et seq.; Papers relating to Behring Sea Fisheries, Washington, 1887, 121; Report of Governor of Alaska, 1886, 36; Blue Book "United States No. 2 (1890)," 7, 30, 45, 245, 243, 237, 234, 21, 112, 89; "United States No. 1 (1891)," 37, 38, 41, 52, 54, 56, 87; "United States No. 3 (1892)," 39, 2, 4. In this relation the British Behring Sea was mare clausum. Case referred to the case of the schooner Harriet and other American vessels, which were seized by the Argentine authorities in 1831 for killing seals on the Falkland or Malvinas Islands, and which were forcibly released by the American man-of-war Lexington, the United States defending this act on the ground, among others, that "the ocean fishery is a natural right which all nations may enjoy in common," and that it may be exercised not only in the water itself, but also on uninhabited coasts.1 After citing various authorities as to the extent of territorial jurisdiction and the freedom of the fisheries outside of it,2 and declaring that even if the Russian claim to hold a part of the Pacific as mare clausum had been well founded it would have been destroyed by the cession of a part of the inclosing territory to the United States,3 the British Case maintained that the right to protect the seals was limited to the right to prevent ships and persons from entering territorial waters for the purpose of capturing them. Upon analogous questions, it was said, a similar principle had been recognized and enforced. In 1804, during the war with France, Great Britain "claimed to search neutral vessels on the high seas, and to seize her own subjects when found serving under a neutral flag." The United States not only opposed the claim, but insisted "that in no case did the sovereignty of any nation extend beyond its own dominions and its own vessels on the high seas.”4 A similar 'Br. and For. State Papers, XX. 335, 349, 351; Hunt's Merchants' Magazine, February 1842, 137, 142, 143. 21 Kent's Comm., 9th ed. 29; Wheaton's Elements, Dana's ed. 269; Woolsey's Int. Law, 6th ed. sec. 59, p. 73; R. H. Dana, Documents and Proceedings of the Halifax Commission, 1653; Phillimore, Int. Law, 6th ed. I. sec. 174; Mr. Seward to Mr. Tassara, Wharton's Int. Law Digest, I. sec. 32, 103; Ortolan, Diplomatie de la Mer., éd. 1864, 145; 153; Case of the Washington, Documents and Proceedings of the Halifax Commission, 152, 153; Opinion of Mr. Fish, Secretary of State, Wharton's Int. Law Digest, I. sec. 32, p. 106; Bluntschli, Law of Nations, book 4, secs. 302, 309; Vattel, Law of Nations, book 1, Ch. XXIII, secs. 289, 291; Klüber, Droit des Gens Modernes de l'Europe, Paris, éd. 1831, I. 216. 3 Ortolan, Diplomatie de la Mer, 4th ed. I. 147; Twiss, Rights and Duties of Nations in Time of Peace, 1884, 293; Halleck, Int. Law, I. c. 6, 143–145; Mr. Hoffman to Mr. Frelinghuysen, March 14, 1882, S. Ex. Doc. 106, 52 Cong. 2 sess. 260, 261; American Rights in Behring Sea, by Prof. J. B. Angell, The Forum, November 1889. 4 Mr. Madison to Mr. Monroe, January 5, 1804, Am. Stat. Papers, For. Rel. II. 730. view had prevailed in respect of the slave trade, for the prevention of which, notwithstanding its immorality and injustice, nations refuse to allow the exercise of visitation and search on the high seas.1 Counter Case of In the Counter Case of the United States it was observed that the British Case was "devoted almost exclusively to showing that the Government of the United States is not entitled to exercise territorial jurisdiction over the waters of Behring Sea or to exclude therefrom the vessels of other nations," while, on the other hand, the Case of the United States made it "plain that the main object had in view by the latter Government is the protection and preservation of the seal herd which has its home on the Pribilof Islands." But as, in consequence of the Petroff falsifications, "some evidence which the United States Government had relied on, to prove that for many years prior to the cession of Alaska Russia had prohibited the killing of fur seals in the waters frequented by them in Behring Sea," has turned out "to be untrue," it became "necessary for the United States to restate, in part, their position in respect to some of the questions submitted to this tribunal." Proceeding, then, to state the position of the United States as to Behring Sea and the Northwest Coast, the Counter Case said that by the ukase of 1799, as well as by its subsequent action, the Russian Govern. ment manifested an intention to maintain "a strict colonial system" in those regions. The ukase of 1821, prohibiting foreign vessels from approaching within one hundred miles of the coasts, was a renewed declaration of the colonial system already referred to." The United States did not impute to Russia an intention to treat the one-hundred mile belt as territory belonging to her, with the right to exclude foreign vessels for all purposes, but merely the intention "to preserve for the use of its citizens its interests on land by the adoption of all necessary, even though they be somewhat unusual, measures, whether on land or at sea."2 While it did not appear from the documents after 1821" to what distance from the shores of Behring Sea Russia actually sought to protect her colonies against inroads from foreigners," yet, said the Counter Case, 66 Le Louis, 2 Dodson's Adm. 210; The Antelope, 10 Wheaton, 66; Wheaton's Elements, Dana's ed. 359–360; Br. and For. State Papers, XXXII. 575. Bancroft, History of Alaska, 583, 584, and various documents referred to in the Case of the United States. "there is nothing to show that she had in the meanwhile receded from the position taken in the ukase of 1821 and sanctioned, as the United States claim, by the resulting treaties. On the contrary, the broad language in which a patrol of the colonial seas is directed to be instituted, especially about the Pribilof and Commander Islands, strongly suggests that even at this late period Russia was still safeguarding her colonial interests by all necessary means. "It is true," the Counter Case of the United States continued, "no instance appears to have been recorded where a vessel was warned or seized for actually killing fur seals in the waters of Behring Sea. But in view of what we know of Russia's solicitude and care for her sealeries, especially in the years following 1836, it can not be doubted that such killing, had it occurred, would have been regarded as unlawful. In making this assertion the United States believe they are fully sus tained by Russia's action during the summer of 1892. In that year sealing vessels assembled in great numbers about the Commander Islands and killed fur seals in the extraterritorial waters surrounding this group. Russia, anticipating that her seal herd would be thus preyed upon, had dispatched to those waters in the early part of the season two cruisers, which seized six vessels, five of them British and one of them American, carrying them in from a distance greater than three miles from any land." By way of "final observation" upon this branch of the controversy the Counter Case of the United States pronounced "the whole subject of the character and extent of the Russian occupation and assertion of right in and over Behring Sea" a question "of secondary and very limited importance in the consideration of the case submitted to the Tribunal." The United States relied on the evidence submitted that Russia at a very early period in her occupancy of Alaska established "a fur-seal industry" on the Pribilof Islands "and annually killed a portion of the herd frequenting those islands for her own profit and for the purposes of commerce with the world; that she carried on, cherished, and protected this industry by all necessary means, whether on land or at sea, throughout the whole period of her occupancy and down to the cession to the United States in 1867;" that "by no act, consent, or acquiescence of Russia was the right renounced to carry on this industry without interference from other nations, much less was a right in other nations to destroy it in any manner admitted or recognized; and that no open or known persistent attempt had |