THE FUR-SEALS AND THE BERING SEA AWARD 37 



waters which form an exception to the general rule of mare 

 liberum, or open free sea. Such then being the case, it is 

 almost certain that, even had the fact of universal acquiescence 

 in Russia's claims of dominion north of the Aleutian Islands 

 been satisfactorily proved, a resulting prescriptive title would 

 not have been accorded by any impartial tribunal. 



It appeared at once that the American contention of Russia's 

 exclusive sovereignty could not be maintained. Reliance had 

 been placed in evidence afforded by certain Russian documents 

 to establish Russia's prescriptive right to jurisdiction over 

 those waters, and as a natural sequitur the similar American 

 rights acquired by purchase. The testimony in question, upon 

 closer scrutiny, was found to be false, and the American case, 

 unsupported by proof, failed upon the first and second points. 



The third point in the case, involving the true meaning of 

 the term " Pacific Ocean," as employed by Russia and Eng- 

 land in a treaty of 1825, and which in the full comprehensive- 

 ness of its meaning included the Bering Sea, was decided 

 unanimously in favor of the English contention. This 

 refuted Mr. Elaine's argument that English and American 

 expressions of protest against Russian assumptions in the 

 North Pacific had never been directed against Russian oper- 

 ations north of the Aleutian Islands or in Bering Sea. The 

 object of this count was to strengthen the American prescrip- 

 tive title to the waters of the Bering Sea in the event of deci- 

 sion favorable to the United States. But this issue having 

 already been disposed of adversely to the United States in 

 the first two counts, its value and importance were conse- 

 quently lost. 



Failing, then, in the first three points in the case, the fourth 

 one became meaningless to the United States and was dropped 

 without comment. This left the fifth and last issue in the 

 case, the only one upon which the American commissioners 

 could take a firm stand; the main force of the American 

 argument was brought to bear upon it in an endeavor to 

 establish a right of property in, or actual ownership of, the 

 seals, and a consequent right of the United States to protect 

 its own property upon the high seas. 



