ARGUMENT OF CHARLES B. WAEREH. 1121 



Although the British Argument in this submission makes no com- 

 ment on these two extracts, they are evidently in the evidence for the 

 purpose of giving the impression that the United States in the arbi- 

 tration with Great Britain in 1893 contended for a jurisdiction over 

 the high seas greater than the 3-mile limit common to the two 

 countries. 



That no such contention was ever made by the United States is 

 clearly established by the correspondence preceding the arbitration, 

 and by reference to the position taken by the United States before 

 the Behring Sea Tribunal. 



The Fur Seal or Behring Sea controversy arose out of the seizure 

 by the United States of certain Canadian vessels in 1886, and during 

 a few years following 1886. I was one of the counsel for the United 

 States before the High Commission that subsequently heard and de- 

 cided the claims on behalf of the owners of the numerous Canadian 

 vessels that were seized, and I recall the Behring Sea controversy 

 partially from the fact that it was made the subject of study at that 

 time. 



Great Britain, in protesting against the action of the United States 

 in seizing these vessels assumed from the early correspondence upon 

 the subject, that the United States claimed Behring Sea to be mare 

 clausum. Mr. E. J. Phelps, Minister for the United States in Lon- 

 don, wrote in a letter, dated the 12th September, 1888, to Mr. Bayard, 

 Secretary of State of the United States, printed in volume II of the 

 American reprint, Appendix 1, to the Case of the United States in 

 this Fur Seal Arbitration Proceeding: 



" Much learning has been expended upon the discussion of the 

 abstract question of the right of mare clauswn. 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."- 



that referred to the shores of the Pribiloff Islands where the seals 

 dwell, so to speak 



" It is proposed by the colony of a foreign nation, in defiance of the 

 joint remonstrance of all the countries 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 

 them, were there no interest at all involved. And it is suggested 

 that we are prevented from defending ourselves against such depre- 

 dations 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 destroying 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 



