110 APPENDIX TO CASE OF GREAT BRITAIN. 
{Inclosure in No. 55.]} 
Extract from the ‘‘ New York Times” of September 5, 1887. 
A DisPUTED OCEAN.—When the new Fisheries ‘‘ Commission,” as Mr. Bayard insists 
it should not be called, was first announced in Parliament, it was said that its scope 
would be limited to the controversy between Canada and the United States. But 
in response to Mr. Gourlay’s inquiry, it was subsequently added that the question of 
including the Alaska seal fisheries was under consideration. It is therefore none too 
early for public opinion to begin seriously to shape itself ona question about which 
much less has been said than in the interminable codfish squabble. It is, moreover, 
a very pretty question in itself, that of our rights in Behring’s Sea, and involves 
issues of no slight intrinsic value. 
As everybody knows, Russia regarded Behring’s Sea as hers, just as we regard 
Delaware and Chesapeake Bays as ours, to compare little things with big. Then 
Russia ceded to us the coast on one side of this little ocean, together with one-half 
the ocean itself. Next, Congress sold the right of catching seals in what we will 
call “our” part of that ocean. And now the question of our rights arises upon the 
catching red-handed poachers who happen to be British. Itis intimated that Russia 
could not convey to us what she did not own herself, and that when we bought 
Alaska we took in fact much less than the deed, that is the Treaty, recited. 
The merits of the question are of course involved in Russia’s rights. Her exclu- 
sive rights were not conceded, but, on the contrary, were promptly attacked when 
they were announced in the Ukase of 1821. The title was thus clouded, but it was 
not invalidated. Russia’s last word was that, although she did not care to argue 
about her rights, whoever invaded them did so at his peril. Instead of quarrelling, 
Russia and the United States agreed that the citizens of both countries should have 
unrestrained privileges in those waters. In other words, although Russia’s right of 
exclusion of Americans was disputed, it was deemed good enough by us in 1824 to 
be the basis of abargain. Great Britain made a similar Treaty the next year. The 
British Treaty is still in force, we suppose, over the western, or Russian half of Beh- 
ring’s Sea. Great Britain’s rights in the western half are therefore based on the 
same title as ours in the eastern. Shecannot admit the rights of the Czar and deny 
those of the United States. On the other hand, the United States are not thus 
involved. We protested against the pretensions of the Czar because they injured 
American commerce. But, having acquired the Czar’s asserted rights by purchase, 
we are now as much interested in defending them as we before were in attacking 
them. At the very least we can require that whoever questions those rights should 
come into Court with clean hands. That means much in connection with this topic, 
as can readily be made clear. 
92 Russia’s rights are attacked on the very simple ground that she might as 
well have annexed the open ocean as Behring’s Sea. Russia’s position was 
that the Aleutian Isles, scattered along in a chain between Asia and America, cut 
off that northern portion of the Pacific Ocean and made it an interior sea, like Hud- 
son’s Bay, in British North America, or like the Gulf of California. The claim 
would be more readily conceded if the Aleutian Isles were more contiguous. As 
matter of fact, 900 miles of blue water separate the westernmost island from the 
most eastern extension of Russian mainland. But between the two most separated 
islands the distance, it must be admitted, is considerably less. Still, it would be 
enough to overthrow the mare clausum theory were the attack made by any other 
nation than England. That ‘‘closed sea” theory is briefly an agreement among 
nations that so many of them as have sea-coasts may annex so much of the ocean as 
they can control, and control is construed to extend as far as a cannon-ball can 
reach. That is the antiquated theory on which exclusive maritime jurisdiction is 
conceded by nations to one another over the ocean 3 miles from shore. Of course, 
if two capes were only 3 miles apart the interior sea beyond them would, on the 
strict mare clausum contention, be conceded to the nation owning the capes, but not 
otherwise. 
But neither England nor the United States should push this closed sea argument 
too hard or too far. England once claimed to own the entire ocean surrounding the 
British Isles, and in 1806 the United States thought it ought to be conceded a right 
to exclude belligerents from the Atlantic Ocean between the Gulf Stream and the 
mainland. To abandon extreme positions and come down to the contentions of 
to-day, England, which denies to Russia the right to define its possessions by 
imaginary lines drawn from island to island, assumes to itself the right to exclude 
Americans from the open ocean included by an imaginary line from headland to 
headland. Who seeks equity must do equity. The English must not both keep 
their codfish and grab our seals. On the other hand, by the strictest technical 
argument it might be that we conld both keep what Russia sold us and get what 
England unjustly denies us, Seeretary Bayard has given abundant intimation of 
