Deliberations Con

cerning the Award.

On the 10th of July the tribunal assembled with closed doors, all the arbitrators being present, to deliberate on the questions submitted to its decision. During these deliberations, which were continued at successive meetings till the 14th of August, Lord Hannen presented a form of an award, blank spaces being left in it for the insertion of the decisions of the tribunal on the various points at issue, which were specifically set out in the draft. This form the tribunal adopted, and, the preamble having been unanimously agreed to without modification, the arbitrators proceeded to consider the five points mentioned in Article VI. of the treaty.

As to the first point, relating to "what exRussian Rights of clusive jurisdiction" in Behring Sea, and" what Jurisdiction and exclusive rights in the seal fisheries therein," Fishing in BehRussia asserted and exercised prior and up to ring Sea. the cession of Alaska to the United States, it was decided that a distinction must be made between different periods, and that what took place prior to the ukase of 1821 might be treated as immaterial. Baron de Courcel then presented the following project of a decision:

"By the ukase of 1821 Russia claimed jurisdiction in the sea now known as the Behring's Sea to the extent of 100 Italian miles from the coasts and islands belonging to her, but in the course of the negotiations which led to the conclusion of the treaties of 1824 with the United States and of 1825 with Great Britain, Russia admitted that her jurisdiction in the said sea should be restricted to the reach of cannon shot from shore, and it appears that, from that time up to the time of the cession of Alaska to the United States, Russia never asserted in fact or exercised any exclusive jurisdiction in Behring's Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters."

This was adopted by a majority composed of Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. The views of Mr. Justice Harlan on this question are fully set forth in an opinion subsequently drawn out by him, and printed. In this opinion he holds that "there is nothing in the record which even

The tribunal at the close of its deliberations adopted a resolution, proposed by Mr. Justice Harlan, reserving to each arbitrator the right to file with the secretary, at any time between the adjournment and Jauuary 1, 1894, an opinion or opinions, which should be regarded as annexed to the final protocol. Both Mr. Justice Harlan and Senator Morgan filed opinions under this resolution. (Fur Seal Arbitration, I.)

remotely sustains the theory that Russia intended, by the ukase of 1799, to assert exclusive jurisdiction over, or any sovereign control of, the northeastern sea outside of territorial waters;" that there is no "document or fact in the public history of Russia, as disclosed in the record before us, which justifies the contention that that country asserted or exercised, prior to 1821, exclusive jurisdiction over the waters of Behring Sea or any exclusive rights in the seal fisheries in that sea, outside of territorial waters;" that the "evidence is overwhelming that the positions taken by the United States and Great Britain were substantially alike, namely, that its (Russia's) interdict of the approach of foreign vessels nearer to its coast than 100 Italian miles was contrary to the principles of international law and in violation of the rights of the citizens and subjects of other countries engaged in business on the waters covered by that regulation;" and that "by the treaty of 1824 with the United States, as well as by that of 1825 with Great Britain, the above ukase was withdrawn, and the claim of authority or the power to prohibit foreign vessels from approaching the coasts nearer than 100 Italian miles was abandoned by the agreement embodied in those treaties to the effect that the respective citizens and subjects of the high contracting parties should not be troubled or molested, in any part of the Great Ocean commonly called the Pacific Ocean, either in navigating the same or in fishing therein, or in landing at such parts of the coasts as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in other articles of these treaties."1

Senator Morgan maintained that in the region in question Russia "directed the energy and capital of her people to the collection of furs," and created monopolies, all directed to the same end; that these privileges were retained and exclusively exercised by Russian subjects till 1867; that the claim of mare clausum "was carried into effect as to the control of the fur trade;" that the Russians "did not hunt whales at that period to any great extent, nor did they conduct fisheries for commercial purposes;" that the ukase of 17:9 "covered Behring Sea and all hunting and trading in those waters;" that the ukase of 1821, that of 1799 having been found insufficient, prohibited "navigation" within 100 Italian miles of the coast as well as "the pursuit of commerce, whaling, and fishing, and all other industries" in the waters covered by it; and that the right of

Opinion of Mr. Justice Harlan, Fur Seal Arbitration, I. 65, 83, 110.

"hunting in the northeastern seas and along the coasts of Amer. ica," which was "made the sole ground of the ukase of 1799, was not touched by the treaty of 1824 with the United States, or the treaty of 1825 with Great Britain."

Senator Morgan voted against Baron de Courcel's project, reserving the right to propose an amendment when the second point should have been reached.

Great Britain.

As to this second point-"How far were Recognition of Rus- these [Russia's] claims of jurisdiction as to the sian Rights by seal fisheries recognized and conceded by Great Britain?"-a majority of the tribunal, composed of the same members as the majority on the first point, adopted the following decision:

"Great Britain did not recognize or concede any claim upon the part of Russia to exclusive jurisdiction as to the seal fisheries in Behring Sea outside of ordinary territorial waters."

Senator Morgan voted against this decision, and presented the following motion as a substitute for the decisions as to the first two points:

"1. From the time that Russia first discovered and occupied Behring Sea and the coasts and islands thereof, until she ceded a portion thereof to the United States, she claimed the seal fisheries in Behring Sea, and exercised exclusively the right to the usufruct and to own the product of such seal fisheries, and to protect the same against being interfered with in those waters by the people of any other country; and also the exclusive jurisdiction that was found necessary for those purposes; and also the exclusive jurisdiction to regulate the hunting of fur-seals in those waters; and to grant the right of hunting them to her own subjects.

"2. The attitude of Russia towards the fur-seal fisheries in Behring Sea, as described above, being known to Great Britain, she acquiesced in the same without objection.”

This motion was negatived by all the arbitrators except Senator Morgan.2

Ocean" and Russian Rights after 1825.

As to the third point, whether Behring Sea The Phrase "Pacific was included in the phrase "Pacific Ocean” in the treaty between Great Britain and Russia of 1825, and what rights, if any, were exclusively exercised by Russia in Behring Sea after that treaty, the arbitrators agreed that the two questions thus connected should be considered separately.

2 Senator Morgan's opinion in support of his substitute is printed in the Fur Seal Arbitration, I. 31.

On the first question the following decision was unanimously made:

"The body of water now known as the Behring Sea was included in the phrase 'Pacific Ocean' as used in the treaty of 1825 between Great Britain and Russia."

On the second question the following decision was adopted by a majority composed of Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, Senator Morgan voting in the negative:

"No exclusive rights of jurisdiction in Behring Sea and no exclusive rights as to seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the treaty of 1825.”

Baron de Courcel remarked that, in concurring in this decision, it was his intention to state the position held by Russia in the Behring Sea only in so far as it had been presented for consideration by the two governments which had constituted the tribunal, and that he by no means intended to prejudge the appreciation of the facts held by Russia herself, as that power had not been heard by the tribunal, nor placed in such a situation as to make her views known to it.

The first three points having been deterTransfer of Russian mined in the manner which has been disclosed, Rights to the the tribunal took up the fourth point, "Did United States. not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring Sea east of the water boundary, in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty?"

This question the arbitrators unanimously answered in the affirmative.

Seals.

The arbitrators next took up the fifth and The Rights of Pro- last point in Article VI., "Has the United tection as to Fur States any right, and if so, what right of protection or property in the fur seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit?”

In answer to this question, Lord Hannen proposed the following decision:

"The United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Behring Sea, when such seals are found outside the ordinary three-mile limit."

This proposition was adopted by a majority, composed of Baron De Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan and Senator Morgan voted in the negative, and stated that, in their opinion, the United States owned the herd of seals which frequented the islands of the United States in Behring Sea, and were entitled to employ for their protection, when found outside the ordinary three-mile limit, the same means that an individual might legally employ for the protection of his property. They also stated that in their opinion, independently of any right of property in the fur seals themselves, the United States, as the owner and proprietor of the industry conducted on the Pribilof Islands, which industry consisted in taking fur seals on those islands for commercial purposes, had the right to protect these animals against being taken in the open waters of Behring Sea and the north Pacific Ocean outside of territorial waters, by any method, such as pelagic sealing, which would necessarily exterminate the race.'

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1 Mr. Justice Harlan, in the opinion subsequently filed by him, maintains that while, in a sense, all property has its root in municipal law, the question of property in seals in the open sea must be determined ultimately by the public law of nations;" and that while the question whether "any precedent precisely in point was recorded in the writings of publicists, or in the judgments of the courts, or in the statutes and ordinances of maritime nations," that supported "the claim of the United States to own these seals and protect them when they are in the seas beyond territorial jurisdiction," "must, of course, be answered in the negative, because, so far as is known, the case has never before arisen," yet the tribunal, in ascertaining whether the law of nations sanctioned and supported the claim of property, might, the question "not being concluded by treaties or precedents," consider "what is demanded in respect to the subject of controversy by the law of nature; that is, by the principles of justice, sound reason, morality, and equity, as recognized and approved by civilized peoples." From "the principles announced by courts and jurists," he said that "this rule, at least, may be fairly deduced as resting in sound reason, in natural justice, and in a wise public policy: That although animals feræ naturæ, however valuable to the world, are not the subjects of property, while in their original condition of wildness, beyond the control of man for any purpose whatever, the law will yet recognize a right of property in them in favor of one who, by acting upon their natural instincts, and by care, watchfulness, self-denial, and industry, induces or causes them to abide, for stated periods in each year, upon his premises, so that he, and he only, is in a position to deal with the race as a whole, taking its increase regularly for commercial purposes without impairing the stock." In applying this rule to seals, he said: "Would the seals continue to come to Pribilof Islands, from year to year, if, by the direction or with the assent of the United States, they