« PreviousContinue »
means of living. The flesh of the animals being their principal article of food, and seal skins being the only commodity of commercial value obtainable by their industry. Previous to the acquisition of Alaska by our Government the preservation of these animals from indiscriminate slaughter and extermination was by the Russian Goverpinent deemed necessary for the subsistence of said inhabitants and accordingly authority over all of Bering Sea for the protection of fur-seals therein from destruction by persons other than said inhabitants was assumed. The Emperor of Russia also asserted authority over Bering Sea by assuming to transfer to the United States certain territory and dominion with definite boundaries including a large part thereof; and the United States by the ratification of the treaty and consummation of the purchase of said territory acquired a claim of right to exercise the authority and sovereignty over that portion of the sea which had been theretofore exercised by Russia. Our Government asserted its authority to restrict the killing of seals in all the waters included within the boundaries described in the treaty very promptly after the formal trausfer of the territory. At the first session of Congress thereafter a statute was passed, entitled, “ An act to extend the laws of the United States relating to customs, commerce, and navigation over the territory ceded to the United States by Russia, to establish a collection dis. trict therein, and for other purposes." The first section of said act (now section 1956 Rev. Stat.), declares that, “The laws of the United States relating to customs, commerce, and navigation are extended to and over the mainland, islands, and waters of the territory ceded to the United States by the Emperor of Russia by a treaty concluded at Washington on the thirtieth day of March, Anno Domini eighteen hun. dred and sixty-seven, so far as the same inay be applicable thereto." (15 U.S. Statutes 240.) The sixtli section in terms prohibits the killing of fur-seals within the limits of said territory or in the waters thereof, and further provides that all vessels found engaged in violatien of the said act shall be forfeited. The first section above quoted is without change of phraseology incorporated into the Revised Statutes, but the sixth section, which is section 1956 of the Revised Statutes, is therein changed so as to refer to Alaska Territory and the waters thereof by substitution of the name “ Alaska” for the word “said” preceding the word “ territory.”
For about one century preceding the year 1885 the validity of the laws of Russia and of the United States respectively, for the preservation of fur-seals in Bering Sea, remained unchallenged. And it is a matter of common knowledge that since the year 1885 instances of poaching by sealing vessels in Bering Sea have been greatly multiplied, and that there has been on the part of officers of the United States charged with the duty of enforcing the above statutes a corresponding increase of efforts to prevent such depredations. A large number of arrests and seizures were made between 1885 and 1889 on the assumption that said laws were effective and applicable throughout the entire extent of the territory and waters including the portion of Bering Sea within the boundaries of the territory and dominion ceded by the Emperor of Russia. From said arrests and seizures and the consequent prosecutions questions arose as to the proper construction or interpretation of section 1956, and as to the extent of our national jurisdiction over Bering Sea. Thereupon, on March 2, 1889, Congress passed an act giving a legislative construction to said section, declaring it to include and be applicable to all the dominion of the United States in the waters of Bering Sea (25 U, S. Statutes, p. 1009, Sec. 3). Effect must be
given to these statutes according to the intention of Congress, which is to be ascertained from the words used and consideration of the course of legislation on the subject, and the facts and circumstances known to have been operative in inducing such legislation. Now, considering the several statutory provisions and the historical facts above recited, and keeping in mind section 1954, which must govern the interpretation of other statutes, referring to the dominion of the United States in Bering Sea, I am constrained to hold that the killing of fur-seals anywhere within the boundaries defined by the treaty referred to in said section is unlawful; and that vessels found within said boundaries engaged in that business are subject to seizure and condemnation as forfeited to the United States.
There is a question, however, as to the validity of these statutes. On the part of the defense it is contended that the criminal laws of the United States can have no force upon the sea beyond the limits of national jurisdiction, which by the law of nations can not extend be. yond the range of cannon shot from the shore; and, therefore, the Government has no power to prohibit tishing or the taking of animals which are ferra naturæ in the open sea, which is common and free to the inhabitants of all nations.
National dominion and sovereignty may be extended over the sea as well as over land. Should circumstances render it necessary, a nation having the power to do so, may ussert its dominion over the sea beyond the limits heretofore admitted by the powers of the earth to be lawful. “It is probably safe to say that a State has the right to extend its territorial waters from time to time at its will with the now increased range of its guns, though it would undoubtedly be more satisfactory that an arrangement on the subject should be arrived at by common consent.” (1 Wharton's Digest of International Law, p. 114, from Hall's International Law, 127.)
As our Government is constituted the President and Congress are vested with all the responsibility and powers of the Government for determination of questions as to the maintenance and extension of our national dominion. It is not the province of the courts to participate in the discussion or decision of these questions, for they are of a political nature and not judicial. Congress and the President having assumed jurisdiction and sovereignty, and having made the declarations and assertions as to the extent of our national authority and dominion above indicated, and having by a treaty with Russia established an international boundary line including a portion of Bering Sea, all the people and the courts of the country are bound by such governmental acts, declarations, and assertions, and by the treaty; and the responsibility of maintaining the national authority within the boundaries so fixed, and to the extent asserted by executive and legislative authority, against foreign governments rests with the executive and legislatiye branches of the Government. In the opinion of the Supreme Court in the case of Janes rs. The United States (137 U. S., 202), written by Mr. Justice Gray, the law is thus stated: “Who is the sovereign de jure or de facto, of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens, and subjects of that Government. This principle has always been upheld by this court and has been affirmed under a great variety of circumstances (Gelston vs. Hoyt, 3 Wheat., 246, 324; United States vs. Palmer, 3 Wheat., 610; The Divina Pastora, 4 Wheat., 52; Foster vs. Neilson, 2 Pet., 253, 307; Keane vs. McDonaugh, 8 Pet.,
308; Garcia rs. Lee, 12 Pet., 511, 520; Williams rs. Suffolk Ins. Co., 13 Pet., 415; United States rs. Yorba, 1 Wall., 412, 423; United States r's. Lyndé, 11 Wall., 632, 638). It is equally well settled in England. (The Pelican, Edw. Adm. a px. D.; Taylor rs. Barclay, 2 Sim., 213; Emperor of Austria rs. Day, 3 DeG., F. & J., 217, 221, 233; Republic of Peru rs. Peruvian Guano Co., 30 Ch. D., 489, 497; Republic of Peru rs. Drayfus, 33 Ch. D., 356, 359). All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercise by the Government whose laws they adininister, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence nor in accord with the pleadings. (United States vs. Reynes, 9 How., 127; Kennett rs. Chambers, 14 How., 38; Hoyt rs. Russel, 117 U. S., 401, 404; Coffee rs. Grover, 123 U. S., 1; State rs. Dunwell, 3 R. I., 127; State is. Wagner, 61 Maine, 178; Taylor rs. Barclay, aud Emperor of Russia rs. Day, above cited, 1 Green 1, Ev., 6.)
It has been further contended on the part of the defense that this vessel was especially privileged to engage in the sealing business in Bering Sea by reason of the fact that her owner and crew of Indians are of the Makah tribe, and by virtue of the treaty made with said tribe of Indians, whereby “the rights of taking tish and of whaling and seal. ing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Cuited States and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed land.” (12 U. S. Statutes, 940.) It is obvious, however, from the language above quoted, that the treaty secures to the Indians only an equality of rights and privileges in the matter of fishing, whaling, and sealing. The guaranty is of rights in common with all citizens of the l'uited States, and certainly such treaty stipulations give no support to a claim for peculiar or superior rights or privileges denied to citizens of the country in general.
A decree of forfeiture as prayed for in the libel of information will be entered.
C. H. HANFORD,
NOTES ON THE FUR INDUSTRY OF BERING SEA AND
THE ADJOINING REGIONS.
From the discovery of the Aleutian Islands in 1741 until the year 1783 the operations of the Russian fur hunters and traders were confined exclusively to the islands, coasts, and waters of Bering Sea. It was not until after the establishment of the first permanent settlement on the islauds of Kadiak in 1783 that the initiatory steps were taken toward extending the business to the maiuland of North America. On the extent and value of the operations on the Aleutian Islands and in Bering Sea during these first forty years but few figures can now be had. Reliable data are, however, found in the work of Lieut. Vassili Berg, of the Russian navy, who commanded several vessels belonging to the Russian American Company in the course of the first two decades of the present century. Berg had access to the custom-house records at, Petropavlovsk, Okhotsk, and other ports, at which incoming furs were counted and a royalty paid to the Government. This system was in vogue until the establishment of the Russian American Company in 1799. According to Berg the catch of sea-otters between the years 1745 and 1796 is placed at 58,618,' and that of fur-seals from the date of the discovery of the islands to the year 1796 at 417,758, which latter figure represents probably not more than one-quarter of the number killed, as, owing to the crude processes of treating the skins, fully three-quarters were spoiled before they could be brought to market.
The following extract from Berg's Chronological History? throws much light upon the early state of the fur trade in and about Bering Sea: “In regard to the furs imported by the various companies from 1745 to 1823 the reader should be informed that the valuation of the cargoes was not always equal to the real value of the furs. This was due to the devices resorted to by some shipowners to lessen the amount of royalty.
“In looking over the list of furs imported by any vessel we can determine how far its voyage extended. Blue foxes indicate that the hunting was done on the Bering Islands; black foxes that the vessel reached Unalaska, Umnak, and Unimak. Land-otters and beavers were obtained from the Aliaska Peninsula.
"A large shipment of fur-seals indicated that the ship had been to the islands of St. Paul and St. George. These islands, discovered in 1785, yielded in a short time more than a million fur-seal skins, and they still abound in the animals. There were cases, however, where during heavy northerly gales as many as 50,000 fur-seals and 5,000 walrus were driven to the nearest Aleutian islands. In 1776 a multitude of fur-seals were driven to the islands of Atka and Amlia. The ship Prokopy, which was hunting there, brought about 40,000 skins to Okhotsk.
1 See Table 1, Berg's appendix. *Pages 165–167.
“From an examination of the tables of furs imported by the various companies from 1743 to 1823 it appears that within a period of eighty years their numbers, including Government tribute, were as follows:
“ The tables of the importations of private companies show that the cargoes of their various vessels were valued at 7,000,000 rubles, but to this we must add at least 2,000,000 rubles, because the value of cargoes of seven vessels which made long voyages is not given for want of record, and it may be safely assumed that at least ten more made voyages of which no record exists. The furs imported by the Shelikof Company were appraised at 1,500,000 rubles. The cargoes brought by the ressels of the Russian American Company were worth 35,500,000 rubles. Thus there were obtained by Russian hunters and traders in eighty years from the Aleutian Islands, and the coast immediately adjoining, furs to the value of 46,000,000 rubles.' Of all this quantity of furs more than half was traded off with the Chinese at Kiakhta, and the Government received in duties from this trade more than 10,000,000 rubles. In addition the Government received large numbers of skins as tribute from natives. From every cargo of the early private companies one-tenth was set aside for the Government, and the number of seaotters alone thus secured from 1745 to 1799 was 12,000, worth 720,000 rubles at the low price then prevailing.”
The seal catch at the Pribilof Islands between 1817 and 1837 is illustrated by the following table compiled by Veniaminof:3
TABLE I IN PART II of Veniaminof's “Notes on the Islands of the Unalaska District,"
shouing the seal-catch during the period of gradual diminution of life on the Pribilof 1slands, from 1817 to 1887.
St. Paul Island
47. 860 45,932 40,300 39, 700 35, 750 28, 150 24, 100 19,850 24, 600 23, 250 17, 730 St. George Island.... 12, 328, 13.924 11, 925 10,520 9, 245 8,319 5, 773 5, 550 5, 500
60, 188 59, 856 52, 225, 50, 220 44,995 36, 469 29, 873 25, 400 30, 100 23, 230, 17, 750
, These were silver rubles.
? In regard to the fur trade with China see also Coxe, pp. 354-357, and House Ex. Doc. 177, pp. 1.15, 178.
3 See appendix to his “ Notes on the Islands of the Unalaska District."