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It is submitted, therefore, that there is no warrant for the charge that the United States have failed in any duty up to this time; or that their honor or good faith can be impugned from any standpoint, when they have so far "failed to make any reparation to Great Britain" on account "of injuries sustained by persons in whose behalf Great Britain is entitled to claim compensation."

Up to this time neither Great Britain nor anyone has been able to ascertain what these claims are, or whether they arise from injuries sustained by such 'persons." Unliquidated and unascertained as they have been, the present convention itself recognizes that no liability accrued until the decision of the Paris Tribunal, for such claims are distinctly defined in Article I, as those "arising by virtue of the treaty aforesaid, the award, and the findings of the said Tribunal of Arbitration" (at Paris).

At page 20 of the British argument, folio 5, is the following:

(3) They (the acts of the United States in seizing vessels in Bering Sea) constituted an insult to the flag of Great Britain, repeated from time to time, accompanied by the seizure and confiscation of valuable property, in the face of continued protests, and even after the acts and declarations of the United States Government had given an implied assurance to the contrary.

In other places in the opposing argument compensation is claimed from the United States under the convention and before this Commission for Great Britain "in her own behalf," distinguishing this as a national claim in a different sense from those made by her in behalf of "persons" within her protection. (Fol. 10, p. 18; fol. 50, p. 13.)

The counsel of the United States have but two observations to make on the above-quoted paragraph in connection with the context:

(a) In all the history of that great nation the flag of Great Britain, respected throughout the world for the power behind it, and more respected by strong nations of all civilizations for what it represents besides the force of arms, has never been insulted with impunity; and never before in her history has it been suggested by her, much less to her, that the amends for such an insult could be arbitrated or referred, or that a money compensation for the act, assessed by referees of whatever dignity, would be received as satisfaction.

The irrelevancy of the statement in its bearing on the question of damages will be considered later on.

(b) The charge that the United States had been guilty of a breach of faith that is here made was never intimated in the diplomatic correspondence between the Governments. Promptly on learning that a misunderstanding was claimed on the part of Her Majesty's representative on the subject of seizures, Mr. Bayard, on August 13, 1887, corrected the misunderstanding, if there was one, and made this statement in that letter, which is fully justified by an examination of the correspondence (Rec., 81):

I can discover no ground whatever for the assumption by Her Majesty's Government that it (his letter of February 3, 1887) contained assurances (quoting from the letter of the British ambassador) "that pending the conclusion of discussions between the two Governments on general questions involved, no further seizures would be made by order of the United States Government."

On page 1, folio 5, appears this statement:

(4) Until the year 1886 the United States Government by no positive act sought to exercise any exclusive jurisdiction over the waters of Bering Sea beyond the usual territorial limit; nor did they by any active interference intimate to Great Britain or to other foreign powers their intention to claim special or exclusive authority to prevent the capture of fur seals in Bering Sea outside of such limit.

The reference to the record opposite this paragraph does not sustain it. The reference is to the statement of the British case before the Paris Tribunal, and is entitled, "Outline of Argument."

It appears by this record, on the evidence put in by Her Majesty's Government, that the first ship to engage in pelagic sealing was an American vessel that went into the sea in 1884. It was not claimed before the Paris Tribunal that any British ship was in the sea before that year.

It is not pretended by Great Britain that there was any assertion by that nation or her subjects of the right to take seals in Bering Sea, as contested by the United States, before 1885; and it appears that the assertion of the right by Great Britain, or by her subjects, was not brought to the attention of the United States Government or its officers until after the close of the season of 1885.

Sir Charles Russell, in his argument at Paris, quotes the statement of Secretary Blaine as follows, from his dispatch on the subject of British sealing, dated January 22, 1890, where he says:

Whence did the ships of Canada derive the right to do in 1886 that which they had refrained from doing for more than ninety years?

In all fairness to both nations, after all issues of fact have been investigated and resolved by the Paris Tribunal, it should be stated that from the date of acquirement of Alaska in 1867 until, by reason of what took place, in the year 1885 the question of pelagic sealing or the jurisdiction of the United States in the premises was not asserted against Great Britain, for the simple reason that the latter Government or its subjects had not challenged that jurisdiction or interfered with the exclusive control by the United States of seal fishing, as claimed in Bering Sea, at Paris. The jurisdiction was asserted as soon as substantially infringed.

Owing to the gravity and magnitude of what is called in the treaty the "Main Controversy" between the United States and Great Britain, the international question of jurisdiction, the claims involved for losses to British subjects have been given an importance out of all proportion to their significance. Lifted into view by the supreme feature of the controversy, a few small fishing boats have been the subject of prolonged negotiation between two great nations, resulting in the organization of a High Court, composed of jurists of distinguished position and learning, to make an assessment of values and pass upon questions, involving, in the case itself, only these as subjects.

With the great question taken from under them, disposed of at Paris, and out of view, it will seem to whomsoever this record comes, and who masters it, that the few claims and their subjects, which can be considered here at all, have been given a most incongruous dignity; and, too, from the outside standpoint, it has seemed that great fleets have been driven from the sea by the United States from year to year. This is true, but they have not been the fleets of Great Britain. They have been the vessels of citizens of the United States, in the proportion of loss to that of the subjects of Great Britain as a thousand to one.

Confusing this distinction, the public mind has assumed that all the results of the action of the United States in Bering Sea (action substantially in respect of its own shipping and its own citizens) fell upon British subjects. This also has given a factitious dignity to these claims. When from the claims presented here there are thrown out those urged unlawfully because of their actual ownership by American citizens, who can not be represented by Great Britain under this convention, the residuum of actual British losses will be found small indeed.

It is obvious, however, that the smallness of the amount involved in nowise detracts from the importance of the international questions.

A sense of their professional duty to the Commissioners, who have consented to add to the exacting responsibilities of the high places they hold in the judiciary of their respective countries, that of mastering and disposing of the international controversy embraced in this enormous record and its adjuncts, has impelled the counsel for the United States to endeavor to aid them with all that conscientious research and analysis on the law and the facts can afford.

If, in the result of this purpose, it should seem that any excuse is needed for the space taken in gathering and presenting the evidence under the several heads, with intelligible and orderly references, that excuse may be at once found by comparing with the record, in any one instance, the statements under any caption whatever, in the British argument, treating of the facts.

SUMMARY OF THE POSITIONS OF THE UNITED STATES IN REPLY.

At this place we submit brief synopses or headnotes of the leading positions taken in the argument of the United States, hereafter presented at length, in reply to the juridical positions of Great Britain on like subjects.

I.

International law furnishes the standard for the interpretation of treaties and conventions and is the law of this Commission.

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