28 



islaTuls tliereof, wTiicli are the same as to origin, assertion, and exer- 

 cise, and as to all sovereign powers, as tliose tliat are claimed and 

 exercised by the United States. Eussia is still guarding her rights 

 in tlie form and to the extent that she is making a claim or assertion 

 of them with sedulous care, and Great Britain is actively engaged in 

 treating with her for the definition and settlement of those rights. 

 While treating with Eussia she is arbitrating with the United States 

 about the identical questions that equally concern both countries." 



A nmin feature that seems to control the opinions of the Arbitrators 

 in determining what are the rights of the United States is the action 

 of Eussia, its conduct in fact, as it is alleged, j9ro and con, in first assert- 

 ing, and then abandoning the assertion that Bering Sea is mare 

 clausum; in issuing her ukase in 1709 and abandoning some of its vital 

 features and adding others by a later ukase in 1821 ; in wiping out 

 all of the pretensions set up in both ukases by the treaty concluded 

 with the United States in 1824 and with Great Britain in 1825: in 

 instructing her minister at Washington to deliver to the United States 

 an explanatory protocol, defining more clearly her construction of the 

 treaty of 1824, which instructions were violated under impressions made 

 upon him by the Secretary of State, and, after this w^as done, proceeding 

 under the text of the treaty as if no qualifying statement would ever 

 be relied upon by Eussia; and in renewing her charter to the Eussian 

 American Company in 1831 with the same exclusive i)rivileges as were 

 granted to it in 1821. In the opinions of the arbitrators, now aelivered, 

 these questions, so closely related to the conduct of Eussia for a j)eriod 

 little short of a century, are dealt with and are to be decided by this 

 tribunal. 



Whether Eussia had any right under international law, or any other 

 law, to assert and exercise exclusive rights or exclusive jurisdiction in 

 Bering Sea, can not alter the fact that she did, or did not, assert and 

 exercise them. Neither can these facts be altered by Eussia's con- 

 structive modification or abandonment of the attitude she had previ- 

 ously held to these subjects. The only question is, what did Eussia 

 intend to assert in respect to these matters, and whether she executed 

 that intention in dealing with these subjects. In the opinions deliv- 

 ered, strict history, as to facts, seems to have received a coloring of 

 legal and diplomatic opinion in the effort to ascertain what Eussia did 

 and intended to do, by first ascertaining what it was her duty to do 

 under the international law and the comity of nations. 



