36 AMERICAN DIPLOMATIC QUESTIONS 



right or title gained by immemorial use. Alexander I. had 

 made formal proclamation of this title in his ukase of 1821, 

 and counsel contended that Russia had ever after enjoyed full 

 and undisturbed possession of her asserted proprietary right 

 over Bering Sea until by treaty of 1867 she had parted with 

 such rights to the United States. And it was urged that the 

 long period of time that Russia had remained in open adverse 

 possession of those waters, exercising all the privileges a 

 nation enjoys over a territorial expanse of sea without protest 

 or hindrance, had given her a full and complete prescriptive 

 title, which title passed unimpaired to the United States. 



The question of Russia's undisputed exercise of her alleged 

 rights in Bering Sea came before the tribunal as an issue of 

 fact to be proved or disproved by weight of evidence, and 

 the legal aspect of the question of prescription, its applicability 

 to the present case, and its scope and force as a principle of the 

 law of nations, were not touched upon by the arbitrators. It 

 may well be doubted that even had Russia really been left 

 undisturbed, as alleged, in her occupation of Bering Sea for a 

 century or more, a prescriptive right to its waters would conse- 

 quently ensue. There is abundant authority in international 

 law to demonstrate that rights gained through immemorial 

 usage do not appertain to the sea. All rights of navigation, fish- 

 ing, etc., upon the high seas are of a nature that do not depend 

 upon constant use for their validity. They may be used at 

 will, or never used at all, for non-use cannot imply relin- 

 quishment. Because a nation never sailed a vessel across 

 the sea may she forever be denied the privilege ? Because a 

 nation has alone fished in a distant sea may she forever bar 

 her neighbor from fishing there as well ? Again, it is con- 

 ceived that prescriptive titles may be acquired only in such 

 things as are inherently capable of acquisition, always imply- 

 ing an original o.r prior grant constituting at least a color of 

 title. It is incompatible with the doctrine of the freedom of 

 the high seas to suppose any one' nation is capable of acquir- 

 ing rights therein above, or greater than, the common rights 

 of all nations. Few in time past, and no one to-day, ventures 

 to assert that Bering Sea falls within that class of enclosed 



