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a prescribed penalty. It will be observed that the inhibition is not alone against British subjects, but against any person.” I here, quote the pertinent section of the Parliamentary act in question:

7 (1) The fishing board may, by by-law or by-laws, direct that the methods of fishing known as beam trawling and other trawling shall not be used within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to be defined in such by-law, and may from time to time make, alter, and revoke by-laws for the purposes of this section, but no such by-law shall be of any validity until it has been confirmed by the secretary for Scotland.

(2) Any person who uses any such method of fishing in contravention of any such by-law shall be liable, on conviction under the summary jurisdiction (Scotland) acts, to a fine not exceeding £5 for the first offense, and not exceeding £20 for the second or any subsequent offense, and every net set, or attempted to be set, in contravention of any such by-law, may be seized and destroyed or otherwise disposed of as in the sixth section of this act mentioned.

If Great Britain may thus control an area of 2,700 square miles of ocean on the coast of Scotland why may not the United States prescribe a space around the Pribilof Islands in which similar prohibitions may be enforced? The following would be the needed legislation for such a purpose by Congress, and it is but a paraphrase of the act of Parliament:

The fur-seal board may, by by-law or by-laws, direct that the methods of sealing known as spearing or harpooning, or with firearms, shall not be used within a line drawn from the shores of the Pribilof Islands 60 miles in the Behring Sea, and said board may, from time to time, make, alter, and revoke by-laws for the purpose of this section; but no such by-law shall be of any validity until it has been confirmed by the Secretary of the Treasury.

Second. Any person who uses any such method of sealing in contravention of such by-laws shall be liable on conviction to a fine not exceeding $100 for the first offense and not exceeding $500 for the second or any subsequent offense, and every spear, harpoon, or firearm attempted to be used in contravention of any such by-law may be seized and destroyed or otherwise disposed of as said fur-seal board may direct.

It must not escape observation that the area of water outside the 3-mile line on the coast of Scotland, whose control is assumed by Great Britain, is as large as would be found inside a line drawn from Cape Cod to Portland Harbor, on the New England coast.

Lord Salisbury reasserts his contention that words “Pacific Ocean” at the time of the treaty between Russia and Great Britain did include Behring Sea. Undoubtedly the Pacific Ocean includes Beluing Sea in the same sense that the Atlantic Ocean includes the Gulf of Mexico, and yet it would be regarded as a very inaccurate statement to say that the Mississippi River flows into the Atlantic Ocean. I think Lord Sal. isbury fails to recognize the common distinction between the “ Atlantic Ocean” and “the waters of the Atlantic." While the Mexican Gulf is not a part of the Atlantic Ocean, it would, I am sure, comport with general usage to say that it belonged to the waters of the Atlantic, and, while Behring Sea is not technically a part of the Pacific Ocean, it undoubtedly belongs to the waters of the Pacific.

The English Channel would not ordinarily be understood as included in the term “ Atlantic Ocean." One would not say that Dover or Calais is on the coast of the Atlantic Ocean, and yet clearly the English Channel belongs to the waters of the Atlantic. In point of fact, therefore, according to the usage of the world, there is no dispute of any consequence between the two Governments on the geographical point under consideration. The historical point is the one at issue. The explanatory note from Russia, filed in the State Department of this country, specially referred to in Mr. John Quincy Adams's diary and quoted in my note of December 17, 1890, plainly draws a distinction between the Pacific Ocean on the one hand, and the “ Sea of Okhotsk, the Sea of Kamchatka and the Icy Sea” on the other; and so long as Russia drew that distinction it must apply to, and must absolutely decide, all the contentions between the two countries as far as the waters of the Behring Sea are concerned. To discuss this point further would, in the opinion of the President, contribute nothing of value to the general contention.

In the opinion of the President Lord Salisbury is wholly and strangely in error in making the following statement:

Nor do they (the advisers of the President] reply, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.

The Government of the United States has steadily held just the reverse of the position which Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and incidents of their relation to the island, give to the United States a property in. terest therein; that this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore prevailing.

I have the honor to be, with the highest consideration, sir, your most obedient servant,

JAMES G. BLAINE.

CORRESPONDENCE RELATIVE TO THE MODUS VIVENDI OF 1891

AND TO THE NEGOTIATIONS FOR ARBITRATION. 1

Sir Julian Pauncefote to Mr. Blaine.

BRITISH LEGATION,

Washington, April 20, 1891. DEAR MR. BLAINE: I informed Lord Salisbury, in a private letter, of your alternative suggestion for a modus vivendi pending the result of the Behring Sea arbitration, namely, to stop all sealing both at sea and on land. Lord Salisbury seems to approve of that alternative, and he asks me whether, in case Her Majesty's Government should accept it, you would prefer that the proposal should come from them. I thought you would like to know Lord Salisbury's view of your proposal as early as possible, and that must be my excuse for troubling you with this letter during your repose at Virginia Beach.

May I ask you to be so good as to let me know, as soon as you con. veniently can do so, what answer you would wish me to return to Lord Salisbury's inquiry?

Hoping that you have already benefited by the change of air, I re. main, etc.,

JULIAN PAUNCEFOTE. 1 The last notes of the preceding subdivision contain matter relating to arbitration. Mr. Blaine to Sir Julian Pauncefote.

DEPARTMENT OF STATE,

Washington, May 4, 1891. SIR: During the month of March last, a few days after the adjournment of Congress, acting under the instructions of the President, I proposed to you that a modus vivendi be agreed upon touching the seal fisheries, pending the result of arbitration of the question at issue between the two Governments. The President's first proposal, which I submitted to you, was that no Canadian sealer should be allowed to come within a certain number of miles of the Pribilof Islands.

It was, however, the conclusion of the President, after reading Lord Salisbury's dispatch of February 21, that this modus vivendi might possibly provoke conflict in the Behring Sea, and, to avoid that result, he instructed me to propose that sealing, both on land and sea, should be suspended by both nations during the progress of arbitration, or during the season of 1891. On both occasions it was a conversational exchange of views, the first in my office at the State Department, the second at my residence.

The President was so desirous of a prompt response from Lord Salis. bury to his second proposition that I ventured to suggest that you request an answer by cable, if practicable. Especially was the President anxious to receive an answer (which he trusted would be favorable) before he set out on his tour to the Pacific States. He left Washington on the night of April 13 without having heard a word from your Gov. ernment. It was then a full month after he had instructed me to open negotiations on the question, and the only probable inference was that Lord Salisbury would not agree to his proposal.

The silence of Lord Salisbury implied, as seemed not improbable, that he would not restrain the Canadian sealers from entering Behring Sea, and, as all intelligence from British Columbia showed that the sealers were getting ready to sail in large numbers, the President found that he could not with justice prevent the lessees from taking seals on the Pribilof Islands. The President therefore instructed the Secretary of the Treasury, who has official charge of the subject, to issue to the lessees the privilege of killing on the Pribilof Islands the coming season the maximum number of 60,000 seals, subject, however, to the absolute discretion and control of an agent appointed by the Secretary of the Treasury to limit the killing to as small a number as the condition of the herd might, in his opinion, demand.

On the 22d of April, eight days after the President bad left Washington, you notified me, when I was absent from the capital, that Lord Salisbury was ready to agree that all sealing should be suspended pending the result of arbitration. On the 23d of April I telegraphed Lord Salisbury's proposition to the President. He replied. April 25, expressing great satisfaction with Lord Salisbury's message, but instructing me to inform you that “some seals must be killed by the natives for food;" that “the lessees are bound, under their lease from the Government, to feed and care for the natives, making it necessary to send a ship to the Pribilof Islands each season at their expense;" and that, for this service—a very expensive one—the “ lessees should find their compensation in taking a moderate number of seals under the lease.” The President expressed his belief that this allowance would be readily agreed to by Lord Salisbury, because the necessity is absolute.

You will remember that when I communicated this proposition from

under discussion between the two Governments for the last four years. I shall endeavor to state what, in the judgment of the Presideut, those issues are:

First. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?

Second. Ilow far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ?

Third. Was the body of water now known as the Bering Sea included in the phrase “Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring Sea were given or conceded to Great Britain by the said treaty?

Fourth. Did 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 March 30, 1867, pass unimpaired to the United States under that treaty?

Fifth. What are now the rights of the United States as to the fur-seal fisheries in the waters of the Behring Sea outside of the ordinary territorial limits, whether such rights grow out of the cession Ly Russia of any special rights or jurisdiction held by her in such fisheries or in the waters of Behring Sea or out of the ownership of the breeding islands and the habits of the seals in resorting thither and rearing their young thereon and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States?

Sixth. If the determination of the foregoing questions shall leave the subject in such position that the concurrence of Great Britain is necessary in prescribing regulations for the killing of the fur seal in any part of the waters of Behring Sea, then it shall be further determined: First, how far, if at all, outside the ordinary territorial limits it is necessary that the United States should exercise an exclusive jurisdiction in order to protect the seal for the time living upon the islands of the United States and feeding therefrom. Second, whether a closed season (during which the killing of seals in the waters of Behring Sea outside the ordinary territorial limits shall be prohibite:l) is necessary to save the seal. fishing industry, so valuable and important to mankind, from deterioration or destruction. And, if so, third, what months or parts of months should be included in such season, and

over what waters it should extend. The repeated assertions that the Government of he United States demands that the Behring Sea be pronounced mare clausum, are without foundation. The Government has never claimed it and never desired it. It expressly disavows it. At the same time the United States does not lack abundant authority, according to the ablest exponents of international law, for holding a small section of the Behring Sea for the protection of the fur seals. Controlling a comparatively restricted area of water for that one specific purpose is by no means the equivalent of declaring the sea, or any part thereof, mare clausum. Nor is it by any means so serious an obstruction as Great Britain assumed to make in the South Atlantic, nor so groundless an interference with the common law of the sea as is maintained by British anthority to-day in the Indiau Ocean. The President does not, however, desire the long postponement which an examination of legal authorities from Ulpian to Phillimore and Kent would involve. He finds his own views well expressed by Mr. Phelps, our late minister to England, when, after failing to secure a just arrangement with Great Britain touching the seal fisheries, he wrote the following in his closing communication to his own Government, September 12, 1888:

Much learning has been expended upon the discussion of the abstract question of the right of mare clausum. I do not conceive it to be applicable to the present case.

Here is a valuable fishery, and a large and, if properly managed, permanent industry, the property of the nations on whose shores it is carried on. İt is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the comtries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect theni, were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free.

The same line of argument would take under its protection piracy and the slave trade when prosecuted in the open sea, or would justify one nation in dlestroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the open sea with impunity, and against which every sea is mare clausum; and the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon Canadian coasts could be destroyed by scattering poison in the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case!

Yet that process would be no more destructive, inhuman, and wanton than this.

If precedents are wanting for a defense so necessary and so proper, it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules.

I have the honor to be, sir, with the highest consideration, your obedient servant,

JAMES G. BLAINE. [There are three inclosnres, to-wit: Inclosure A, treaties of 1821 and 1825, for which see Vol. —, p. – Inclosure B, list of maps, printed infra. Inclosure C, section 4 of "An act to regulate the intercourse with St. Helena,” for which see Vol. -P. —.]

(Inclosure B.] List of early maps, with special designation of waters now known as Behring Sea, with

date and place of publication. (In these maps the waters south of Behring Sea are variously designated as the Pacific Ocean, Océan Pacifique, Stilles Meer: the Great Ocean, Grande Mer, Grosser Ocean; the Great South Sea, Grosser Süd-See, Mer du Sud. And they are again further dividerl, and the northern part designated as North Pacific Ocean, Partie du Nord de la Merdu Sud, Partie du Nord de la Grande Mer, Grand Océan Boréal, Nördlicher Theil des Grossen Süd-Meers, Nördlicher Theil des Stillen Meers, Nördliche Stille Meer, etc. In all the maps, however, the Pacific Ocean, under one of these various titles, is desig. nated as separate from the sea.)

Description of map.

Designation of waters now

known as Bering Sea.

Where published.

Date.

(*)

1743

1746 1748

Accurate chart of North America, from Sea of Anadir...

the best sources (German). Map made under direction of Miklael Kamtchatskisches Meer.... St. Peteroburg....

Gvosdef, surveyor of the Shestakof expedition in 1730.

1 Mappemonde, by Lowitz

Mare Anadiricum

Berlin
Geographical Atlas of the Russian Empire, | Kamtchatka or Beaver Sea.. St. Petersburg..

Alexander Vostchinine.
Carte de l'ile de leso, corrected to date, Mer de Kamtchatka

Paris
by Philippe Buache, Academy of Sci.
ences, Geographer to the King:
Müller's map of the discoveries by the Sea of Kamtschatka

St. Petersburg....
Russians on the northwest coast of
America, prepared for the Imperial
Academy of Sciences.

* Unknown

1754

1758

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