80 



BERING SEA TRIBUNAL OF ARBITRATION. 



to take part in the negotiations because it had 

 no immediate interest in the fisheries. Mr. 

 Bayard proposed a close season from April 15 

 to Nov. 1, in Bering Sea between 160 of east 

 and 170 of west longitude. The Russian Gov- 

 ernment proposed to include her part of Bering 

 Sea around the Commander Islands and the sea 

 of Okhotsk. Lord Salisbury assented to both 

 the American and the Russian proposals, and 

 suggested that the regulated area should extend 

 to the parts of the Pacific Ocean and the sea of 

 Okhotsk that lie north of 47 north latitude. 

 The negotiations were suspended in June, 1888, 

 by Lord Salisbury at the request of the Cana- 

 dian Government, which desired to submit to 

 him a memorandum on the subject. 



During 1888, while these negotiations were in 

 progress, no seizures were made. In 1889 the 

 " Richard Rush " captured the " Black Dia- 

 mond," "Juanita," "Pathfinder," and "Lily," 

 and warned off the " Triumph." The " Black 

 Diamond," whose catch of sealskins had been 

 transferred to the revenue cutter, was placed in 

 charge of a special officer of the United States, 

 who was ordered to take her to Sitka, but the 

 master took his vessel to Victoria. Sir Julian 

 Pauncefote, the British minister to the United 

 States, protested against these seizures, and the 

 diplomatic controversy between Secretary Blaine 

 and the Marquis of Salisbury was renewed. No 

 seizures were made in 1890 excepting that the 

 " Pathfinder " was seized in Neah Bay, Washing- 

 ton, on the previous charge, tout released two 

 days afterward and before the sealing season 

 of 1891, on June 15, a modus vivendi was agreed 

 to, in accordance with which the British Par- 

 liament prohibited the taking of seals by Brit- 

 ish subjects in the American part of Bering 

 Sea. The United States, 4rovernment prohib- 

 ited seal -killing for the season in excess of 

 7,500 to be taken on the seal islands for the 

 subsistence and care of the natives, and both 

 governments undertook to patrol the sea. Any 

 person or vessel offending against the prohibi- 

 tion taken by the naval or other proper authori- 

 ties of either government was to be delivered 

 up to be tried by the judicial authorities of his 

 own government. This arrangement was made 

 with a view to a settlement of the whole ques- 

 tion by a joint commission. It was agreed that 

 suitable persons designated by Great Britain 

 should be allowed to visit the seal islands dur- 

 ing the season, and Sir George Smyth Baden- 

 Powell and Dr. George M. Dawson were sent to 

 study the conditions of seal life on the spot. 

 The United States Government commissioned 

 Prof. T. C. Mendenhall and C. Hart Merriman 

 to make a similar investigation, and by arrange- 

 ment between the Secretary of State and the 

 British minister a conference of these commis- 

 sioners took place in' February, 1892. The 

 Canadian Government, with the approval of the 

 imperial authorities, had taken proceedings to 

 have the question of seizures outside of the 

 limits of the ordinary territorial maritime juris- 

 diction passed upon by the United States Su- 

 Kreme Court by applying for a writ of prohi- 

 ition restraining the District Judge for Alaska 

 from further proceedings in the case of the " W. 

 P. Sayward," on the ground of lack of jurisdic- 

 tion by reason of the fact of the seizure having 



taken place 59 miles from land. This mode of 

 testing the question and the plan of formulating 

 regulations by direct conference with the aid of 

 commissioners both gave way to Secretary 

 Elaine's proposal to refer the whole matter to 

 the decision of an international court of arbitra- 

 tion. The terms of the agreement of arbitra- 

 tion as proposed by him, and modified to meet 

 the objections of Lord Salisbury, were as fol- 

 low: 



1. What exclusive jurisdiction in the sea now 

 known as Bering Sea, and what exclusive rights in 

 the seal fisheries therein, did Kussia assert and exer- 

 cise prior and up to the time of the cession of Alaska 

 to the United States? 



2. How far were these claims of jurisdiction as to 

 seal fisheries recognized and conceded by Great 

 Britain? 



3. Was the body now known as Bering Sea includ- 

 ed in the phrase "Pacific Ocean" as used in the 

 treaty of 18215 between Great Britain and Russia, and 

 Avhat rights, if any, in Bering Sea were held and ex- 

 clusively exercised by Eussia after said treaty ? 



4. Dia not all the rights of Kussia as to jurisdiction 

 and as to seal fisheries in Bering Sea east of the water 

 boundary in the treaty between the United States 

 and Kussia of March 30, 187, pass unimpaired to the 

 United States under that treaty ? 



5. Has the United States any right, and, if so, what 

 right of protection or property in the fur seals fre- 

 quenting the islands of the United States in Bering 

 Sea when such seals are found outside the ordinary 

 three-mile limit ? 



The original draught of the treaty contained, 

 besides the 5 points in which the United States 

 Government contended for the rights of exclu- 

 sive jurisdiction in Bering Sea and ownership in 

 the seal herd of the Pribylov Islands, the follow- 

 ing proposition, in which the regulation of the 

 fisheries on the basis of mutual agreement is re- 

 ferred to the arbitrators : 



If the determination of the foregoing questions 

 shall leave the subject in such position that the con- 

 currence of Great Britain is necessary in prescribing 

 regulations for the killing of the fur seal in any part 

 of the waters of Bering Sea, then it shall be further 

 determined: (1) How "far, if at all, outside the ordi- 

 nary territorial limits it is necessary that the United 

 States should exercise an exclusive jurisdiction in 

 order to protect the seals for the time living upon the 

 islands of the United Slates and feeding therefrom. 

 (2) Whether a closed season, during which the killing 

 of seals in the waters of Bering Sea outside the ordi- 

 nary territorial limits shall be prohibited, is necessary 

 to save the seal-fishing industry, so valuable and im- 

 portant to mankind, from deterioration or destruc- 

 tion. (3) And, if so, what months or parts of months 

 should be included in such season and over what 

 waters should it extend. 



This question Lord Salisbury thought would 

 more fitly form the substance of a separate 

 reference. He did not object to the reference of 

 the general question of a close time to arbitra- 

 tion, or to ascertaining by that means how far 

 the enactment of such a provision is necessary 

 for the preservation of the seal species ; but 

 thought that such reference ought not to con- 

 tain words "appearing to attribute special and 

 abnormal rights in the matter to the United 

 States." The form of the question was altered 

 after further correspondence, and it was em- 

 bodied in the treaty in the following shape : 



If the determination of the foregoing questions as 

 to the exclusive jurisdiction of the United States shall 





