Sea," east of the line in the treaty of 1867, were under discussion, Baron de Courcel, the president of the tribunal, adverting to the fact that those questions were expressed in almost the "very words" used by Mr. Blaine in his note to Sir Julian Pauncefote of December 17, 1890, said he supposed that, when Mr. Blaine formulated them, "he relied on some intrinsic arguments of value," and that he probably had before him the "interpolations" of Ivan Petroff. In this inference Lord Hannen and Sir Charles Russell concurred. Mr. Foster, the agent of the United States, then stated, as a matter of fact, that Mr. Blaine had no knowledge of the interpolations, the documents not having been translated nor their contents made known to the officials of the United States till after the conclusion of the treaty of arbitration. After this the following dialogue occurred:

"Sir CHARLES RUSSELL. I accept, of course, what Mr. Foster says, speaking from his own experience, that Mr. Blaine did not know of these documents at the time, and that therefore he was relying upon the view that he took of the treaties. There are references in his correspondence which I will not now refer to which I find a little difficulty in accounting for except by reference to some of these documents-I mean as to acts of assertion by Russia, which I do not find vouched for anywhere else except in these documents.

"Mr. CARTER. Can you point to anything in Mr. Blaine's letter indicating that he knew of the contents of these documents?

"Sir CHARLES RUSSELL. No; I do not say these docu. ments. I do not doubt Mr. Foster's statement in the least upon the subject; but Mr. Blaine must have had some idea that there were in existence documents which would support the statements that there were acts of assertion by Russia which could be relied upon.

"Mr. FOSTER. Why did he not produce them at the time?"

It seems that there was one seizure by Russia, or under Russian authority, of a foreign vessel for taking seals in Behring Sea prior to the cases in 1892. This was the case of the British Columbian schooner Araunah in 1888. The master of the schooner alleged that she was seized off Copper Island about six miles from the nearest land. The captors alleged that she was nearer. It appeared, however, that the crew of the schooner were carrying on their operations in canoes between the schooner and the land, and it was affirmed that two of the canoes were within half a mile of the shore. Lord Salisbury said Her Majesty's government were "of opinion that, even if

the Araunah at the time of the seizure was herself outside the three-mile territorial limit, the fact that she was, by means of her boats, carrying on fishing within Russian waters without the prescribed license warranted her seizure and confiscation according to the provisions of the municipal law regulating the use of those waters." The "provisions of the municipal law" referred to by Lord Salisbury were the regulations relating to "trading, hunting, and fishing" "on the Russian coast or islands in the Okhotsk and Behring seas, or on the northeastern coast of Asia, or within their sea boundary line," which were published in San Francisco and in Japanese ports in 1881 and 1882. These regulations were made the subject of inquiry by the Government of the United States at the time through its diplomatic representative at St. Petersburg, and the correspondence was published in the volume of Foreign Relations for 1882. M. de Giers, the Russian minister of foreign affairs, in a note of May 8 (20), 1882, stated that the regulations extended "strictly to the territorial waters of Russia only." The vessels seized by the Russian authorities in 1892 were six in number.3 In regard to four of them the evidence was conclusive that their canoes were taking seals within the three-mile limit. In regard to the other two, though it was said that the "moral evidence" of the same fact was equally conclusive, yet as the canoes were not actually seen within territorial waters the Russian Government undertook to make indemnity. On February 12 (24), 1893, however, the Russian minister of foreign affairs, in response to an inquiry made in behalf of Canadian sealers as to the limits within which they would be permitted to carry on their operations during that year, wrote to the British ambassador that "the insufficiency of the strict application of general rules of international law to this matter" was admitted in the negotiations between Russia, Great Britain, and the United States in 1888, and that the necessity for exceptional measures had been "more lately confirmed by the Anglo-American agreement of 1891," which had placed Russian interests in an "absolutely abnormal and

1 Blue Book "Russia No. 1 (1890)."

2 For. Rel. 1882, pp. 447-451, 452-454. The inquiry of the United States related to cod fishing; in the case of the Araunah M. de Giers stated that the regulations governed sealing also.

3 When these seizures of 1892 were referred to in the Counter Case of the United States, the precise facts were not known. The diplomatic correspondence was published in Great Britain while the tribunal of arbitration was in session. See, infra, 911.

Blue Book "Russia No. 3 (1893).”

exceptional position." "The prohibition of sealing within the limits agreed upon in the modus vivendi of 1891 has, in fact," said the Russian minister of foreign affairs, "caused such an increase in the destruction of seals on the Russian coast that the complete disappearance of these animals would be only a question of a short time unless efficacious measures for their protection were taken without delay." On these grounds he stated that for the ensuing season, and pending the adoption of international regulations, Russia would, as a measure of "legitimate self-defense," prohibit sealing within ten miles of all her coasts, and within thirty miles of the Commander Islands and Robben Island.' The British Government declined to admit that Russia had a right to extend her jurisdiction over British vessels outside the usual territorial limits, but in order "to afford all reasonable and legitimate assistance to Russia in the existing circumstances," expressed a readiness at once to enter into an agreement with the imperial government for the enforcement of the protective zones proposed in the note of the minister of foreign affairs. Such an agreement was concluded in May, 1893.2

The British Counter Case reviewed at length British Counter Case. the positions assumed in the Case of the United States. Referring to the period prior to 1821, it maintained that the only Russian settlement north of the Aleutian Islands was Nushagak, with five Russian inhabitants, founded in 1818; that any Russian title by discovery was open to doubt, and that there was none by occupation or colonization; that in all the evidence relating to the period there was no distinction as regarded the title of Rus-ia or its

1 In explanation of the grounds of these measures, the minister of foreign affairs said: "With regard to the ten-mile zone along the coast, these measures will be justified by the fact that vessels engaged in the seal fishery generally take up positions at a distance of from seven to nine miles from the coast, while their boats and crews engage in sealing both on the coast itself and in territorial waters. As soon as a cruiser is sighted, the ships take to the open sea and try to recall their boats from territorial waters. With regard to the thirty-mile zone around the islands, this measure is taken with a view to protect the banks, known by the sealers as 'sealing grounds,' which extend round the islands, and are not shown with sufficient accuracy on maps. These banks are frequented during certain seasons by the female seals, the killing of which is particularly destructive to the seal species at the time of year when the females are suckling their young, or go to seek food on the banks known as 'sealing grounds.'” 2 Blue Book "Russia No. 1 (1893)."

recognition by other nations between coasts north and south of 60° of north latitude; and that there was no evidence of the exclusion of foreign ships from Behring Sea, or from seal hunting therein, beyond the Petroff interpolations, which had been withdrawn. As to the claim of a right to protect the seals outside of the three-mile limit, the British Counter Case said, among other things, that if the identification of each seal and its annual return to the Pribilof Islands were assumed as facts, the United States could " show no title without proof that the seal was tame or reclaimed before its departure, and that it intended to return, not only to the islands, but to some spot where it would be under the care and control of its owner." The British Counter Case also reviewed the laws of the seven British colonies, of Scotland, Ireland, and ten other countries, including Russia, which had been cited in the Case of the United States in support of the claim of protection, and declared that while in some instances they extended only to waters that might properly be considered territorial, in no instance was it shown that extraterritorial jurisdiction over foreigners was asserted or exercised.' The British Counter Case concluded with a discussion of the subject of regulations. The Case of the United States was supported Printed Argument of by counsel in a written argument. In this Mr. Carter; the argument Mr. Carter discussed, first, the question, "What law is to govern the decision?” The determination of the tribunal must, he said, "be grounded upon principles of right." By the "rule or principle of right" was meant "a moral rule” dictated by "that general standard of justice upon which civilized nations are agreed." "Just as, in municipal societies," said Mr. Carter, "municipal law, aside from legislative enactments, is to be found in the general standard of justice which is acknowledged by the members of each particular state so, in the larger society of nations, international law is to be found in the general standard of justice acknowledged by the members of that society." This "international standard of justice" was "but another name for international law." "Municipal and international law flow equally from the same source." All law "is but a part of the great domain of ethics. It is founded, in each case, upon the nature of man and the environment in which he is placed." The "original and universal source of all law" might, continued Mr. Carter, some

Nature of Law.

Some of the laws in question relate to oyster, pearl, and coral beds.

times be designated as the law of nature, sometimes as natural justice, sometimes as the dictates of right reason; but, however described, "the same thing is intended." The principles and rules derived from this source were properly termed law, though there was no common superior which might be appealed to for their enforcement. "The public opinion of the civilized world is a power to which all nations are forced to submit."1

"That there is a measure of uncertainty concerning the precepts of the law of nature and, consequently, in international law, which is derived from it, is," said Mr. Carter, "indeed true." But this uncertainty was, he declared, found "in all the moral sciences." It was exhibited in municipal law, though not to so large an extent as in international law. "The loftiest precepts of justice taught by the most elevated and refined intelligence of the age may not be acquiesced in or appreciated by the majority of men." Thus the actual rules of municipal law "often fall short of the highest standard of natural justice," and "erroneous descriptions in municipal tribunals are of frequent occurrence." Such decisions must "necessarily be accepted as declarative of the rule of justice. They represent the national standard of justice accepted and adopted in the states where they are pronounced." "So, also, in international law, the actual practice of nations does not always conform to the elevated precepts of the law of nature. In such cases, however, the actual practice must be accepted as the rule," since it exhibits what may be called the international standard of justice, on which the nations of the world are agreed. "But, although the actual practice and usages of nations are the best evidence of what is agreed upon as the law of nations, it is not the only evidence. These prove what nations have in fact agreed to as binding law. But in the absence of evidence to the contrary, nations are to be presumed to agree upon what natural and universal justice dictates." It is thus, continued Mr. Carter, that international as well as municipal law is developed; and if a case arises for which the usages and practice of nations furnish no precedent, it is not

On the various propositions above quoted Mr. Carter cited Mackintosh's Dissertation on the Law of Nature and of Nations; Bacon's De Argumentis Scientiarum; Cicero, De Republica, Lib. III. Cap. XXII. sec. 33; Blackstone, Comm. Book I. *41; Cicero, De Legibus, Lib. I. Cap. VI. sec. 6; Just. Inst., I. 1, 3; Phillimore, Int. Law. 3 ed. 1879, vol. 1. Sec. LX.; Story, Conflict of Laws, Ch. II. sec. 35; La Jeune Eugénie, 2 Mason's Rep. 449.