IMAGE EVALUATION TEST TARGET (MT-3) V. /. O (./ .,<^^ M^.. % ■^ ^ 1.0 I.I l^iM Ilia :-■ ,jj III— 6jio III| 2.0 1.8 125 1.4 1.6 -« 6" — ► V] i: Ill.-I rHEJl'STKl). The TitrE Issueh in the I'resext CoxTiiOvi;i(.sv : Difil'erent'o of vic.vs iis to tlic objccfc of the jiroHMit iii'liili;il!( ii .... Protection of seals llio main objert of tlio arbitiiitloii .... Origin (if tliL' v'ontrovcrsv !i-^ lo jiirisdictiou Lord Siilisbiin's rcfcrciur to tbo Ihissiiin iikiiM' .... Mr. IJnviird invites intorniilionnl coiijirnition Mr. Hlnine's sttitonient of tlu' i.-:outii \vi\^ i' t'nArT i ow n ki THE TUEATIES OF 1824 'U'): Russia's eolonial svsleni .... ... ... Uluise of 1709 Chajjler I of Britisli Case Di.stinction between Bering Sea rt . Ukase of 1821 ion and I'ai ilie U; [:nG] 1'll.^r ,S (I in II 12 l:s I". i:. k; ■\'-:i ' J , ; ■*; I ill m ■Hi •ii t"«iu!i jr- I' El!-' I'i ;r m !;■ /■!•.!:■ I'"''" r I ifi t,.:^ ;$■>■ I IV TABLE OF CONTENTS. i'i' . ■ ■ / ' iv i-\" |-r "'.(K SlTlATIOX AIIOIT UlMMNO Sra, rtc — Continued. I'anc Clmr.icttT of control oliiinu-d over Roriiiu Sea IM No I'xclnsivi' tcrritoriivl jurimliction cliiinu'd .... .... .... .... .... 10 ProtcBl apiiinst ukuso and roNultin^ troutics 10 Vase of the Pearl 20 PlSUlOO FOLLOWINO THE TllKATIES : Continuation of tlio colonial sygtom..., ..., 21 L'.\»e ot t'av Lon'of 22 < Chapter IV of the British CuBc 2.3 Visits of whalers to Bering Sea .... 24i ' Bights to protect seals not relinquished .... 25 Evidence of surveillance over Bering Sea .... 26 Conclusions from foregoing evidence .... 19 Kussia's action in 1892 29 Final observations on historical nnd jurisdictional questions 3U First, Russian sealskin industry 30 Second, Russia never renounced hor right to protect such industry 31 Third, United States's right to protect, in Rccortl with riglits asserted by Russia 31 The Right of Pbotkction and of I'ROPERTr in the Alaskan Seal Uebd. British view of protection and property claims 32 History of protection and property claims 38 Mr. Blaine insisted on right of ])rotcction 32 Mr. Blaine asserted ownership in seals .... ... 33 Jurisdictional questions not the true issues 33 Mare clausum doctrine inapplicable .... 34 Mr. Phelps asserted ownership in the sealeries 34 All acts not justifiable because committed on high eeas 35 Growth of international law 35 The United States adopt Mr. Phelps's views 35 Lord Salisbury in error 36 Rights arising out of ownership of iehtnds and habits of seals 36 All facts relating to property claim fully discussed 37 Claim of protection and ownership not new 38 Case of the Harriet 38 PART SECOND. BBPLT OV THE UNITED STATES TO THAT FOBTION OF THE CASE OF OBXAT BBITAIN CONTAINED IN THE BEFORT OF THE BRITISH COHMISSIONBBS. IK: m r ■ w The Bbitish Commissioners and thkir Report: The Bering Sea Commission The British Commissioners Secretary Blaine's note to the British Minister Meetings of the Joint Commission Report of the British Commigsionci-s 43 45 45 46 46 TABLE OP CONTENTS. FiKST, New Pkoposittons Alt-kokd on Mattkks AjJtEAoy Considkukd ; Uaiiis of the fur-svals. 1. Distribution of seals in Bering Sea and inti'viuiiinlini; of lirrtl : IntiTHiingliiiir of tin" Alasiiuii and Russian licriis Charts No9. Ill and IV of tlie Ki'port .... Chart No. II of thi' Report Data from wliieh tho ehurts were compiled [nsuffieioncy of data .... Principal data relied upon in Report Chart of eriiises in Bering Sea in 1892 .... Scaling chart of 1892 2. Alleged pronn'seuous nursing of pups by female seals : Promiscuous niiraing denied .... Elliott and Bryant as authorities in the Re|)orl Cow's affection for her young ... Analogy with other animals .... Autlioritios relied upon in the Report .... Mr. C. II. Jackson a questionable authority Sir F. McCoy as an authority 3. Period at which the female seals go into the water Position taken by the Report and the authorities Capt. Bryant's statements.... ' .... .... The one authority for the Report's position Testimony of C. II. Townsend .... .... Testimony of J. Stanley-Brown 4. Aquatic coition : Aillrmation of its possibility by tlie Report The evidence in favor of aquatic coition .... Capt. Bryant as un authority .... .... W. II. Dall as an authority Insufficiency of the evidence advanced by the Report .... Inconsistencies of the Report .... .... Late arrival of the cows at tlie islands .... Management as aa alleged cause of decrease. The methods admitted to be almost perfect Excessive killing alleired Proof must bo limited to period, 1870-1880 Admission as to period after decided decrease Irrelevancy of such admission Failure of tho Report to show change of management after 1880 .... Reservation as to charges of fraud .... Foundation of charge of excessive killing .... Capt. Bryant as a witness for the Commissioners Reasons for his report Divisions of evidence in the Report I'lWe. •IS 49 •19 49 50 GO 51 51 53 5a 53 54 51. 55 55 57 57 58 59 59 GO (K) til 62 02 03 (i3 (54 65 65 65 66 67 m 68 69 69 69 71 [316] A 2 hi i ■3 ■■ 1^ k J.. '■■.111- ■ HI VI TABLE OK OONTKNTS. I ML ^: t FlHBT, NkW PUOl'OHITIONS, KTC. — Coiltitiuod. Mannijement as < \ nUetied caii^p o/(/('(rcrt.vp— Continued. Irrolcvnncy of tlio first ilivision ... ... .... .... Unt'airncHs of Btatcnionts as to Russiun jKriod The nun^berof seals killed from 1860 to 1K05 Second division of evidcnoc Comparisons of luirems, 1870 to 1890, irrolovunt The curtailment of H. W. Elliott's statement Harems in 1891 Surplus of virile males Size of harems in 1892 Alleged summary of a roimrt of H. W. Elliott in 1890 Alleged rocognition of decrease by loBSoes Average weights of Alaskan catch, 1876-1889 Number of seals taken from Northeast Point..., Alleged resort to reserved ureas in 1879 No houlinf; grounds ever reserved .... ... Overdriving and rodriving subsequcntr to 1880, irrulcvant Denial of decrease prior to 1880 Pelaffit; srnling. The Report, an apology for pelagic sealing 1. That the percentage of female seals in pelagic catch is not large. The Indian evidence submitted .... .... Testimony of interested parties submitted Percentage of females admitted to bo taken Statements inconsistent with the Report ... The Statements in the Report denied Capt. Hooper's investigations, summer of 1892 Catelios of vessels seized by Russia, 1892 ; 90 ))cr cent, females Examination of pelagic catches, 1892 .... Proportion of females taken at sea prior to 1870 2. That pelagic scaling in Bering Sea is not as destructive to seal life pelagic sealing in the North Pacific. Grounds for the Report's statements Pregnant females Nursing females Capt. Hooper's investigations, 1892 Examination of seals by C. U. Townsend, 1892 Dead pups on the rookeries Cause of death .... .... Mr. Blaine's note of March 1, 1890 Causes of death alleged in the Report .... 1. Driving and killing of the mothers 2. An epidemic .... .... 3. Pups crushed in stampedes us I'SKf . 71 71 TA 73 73 74 74 74 75 75 76 77 77 78 79 79 79 80 80 81 81 81 82 83 83 83 84 84 85 85 85 86 86 87 88 89 89 89 90 'JAMLK (>K C()NTIiXT!J. VU FlBiT, NkW PftOP0SITION.S, KTC— Coutiii'iod. I'elagic tealing — Continiicl. 2. That ppliigir goiiliiig in Boriiii; St-a is not dcstriictivi! Jo se jx'liiRie spilling in tlip Nortli Pacific— t'ontiniii'd. 4. I'dssiblo raids an a cnnst- All tlip bodies emuciult'd ... (irent dccrt'iijo of dead ))i'.pg in 1HU2 .... Cause of decrease of dead \>i\\ia . Increased mortality on Russian rookeries Comparative sizes of Bering Sea and Pacific catches .... Healing season in Bering .Sea and Pacific coni|mrod Arerago daily eati'li in Bering Sea and Pacific conii)aved 3, That tlio waste of life resultin'r from pelagic sealing is cont. Waste of life insignificant 1 The evidence advanced in the Report .... Percentage of seals lost by Indians Poreentogo of seals lost by V 'lite hunters Tabulated Htatenient of white hunters .... Inconsistoneies of statements Sources of " AVhite Hunters'" table Table only gives seals lost b^- sinking .... Seals lost by wounding The bases for the apology unwarranted.... Second, New Matter Alieqed not IIeretofoke Discussed. JIabilx of the fur-seah. 1. That the Alaskan seal herd has a defined winter habitat. The " winter habitat " theory Object of proposinjj this theory The bulls do not resort to the " iciiiler habitat" The data insullicicnt to establish Testimony in opposition .... Seals followed along Vancouver Island .... Seals scattered during winter months Seals found in lat. 40" N. and long. 172' W New migration chart presented with Counter Case 2. That the Alaskan seal herd has changed its habits as a disturboncc on the breeding islands and of pelagic sealing Increased pelagic noture olleged " Stagey " seals taken at sea Table of average catch per boat and per man .... Why averages for 1885 and 1886 are not used..-. Such averages of no ralue Average per bo:it in " spring catch," 1886-1 Increase pelagic nature, an assumption .... Change of rookeries based on hearsay .... ... New Asiatic rookeries .... I'kgO. al life as (M> yi .... *••• 1)1 .... 0!} *..• m .... 93 ...* .... 94 94 insignifi- 95 .... ■.«• 95 *..* *..• 95 95 9d t... •... ro ...• 07 .... 07 .... .... 98 .... .... 99 100 101 101 102 IM 104 104 105 105 result of 100 106 107 107 107 108 109 103 no ,y-i\ m ..... ,,j { .-'•III m I'M gA it 1 * m m VUI TAULK OK CONTENTS. SlK .•■', ^' 0'' Tii DNf), New M.\TiKit Ai.ieoek not Hbhktofohk Disccxsed - //' hits uflhel'iir-»eal.i — Contiiiurd. 2. Thnt till- AliiHkini sciil hcnl Ims eliiinged it» liiibitf, itr Out- lioiiu" of Alii»knn iciil herd I'ribilof IsIiirKis inliiiltitcd for ono liundred years Slaughter on Koblicn IhIuikI, ]8r>l-'5;i Krror in statement relied 0:1 hv the Keport Allrgrd fraudulent admiiiinlrationon the Pribilof Inlands; Indirect clmrfjes of frmid in the Report The parties idmrgcd Qreat liritain und the frauds eharged ..., Reason the United .States consider the charge Fraud, as alle);cd in tlie Report No outhority for chargex .... H. \V. Elliott's statements distorted Counting skitis on I'ribilof Tslunds Recount ot Han Froneiseo A few bundles opened ... Packing and shipment .... .... Only two skins in n bmidle Three skins in a buiidle would bo detected ... Inii)lied fraud in veight of bundles Ex]iliination o*' ".veight .... VariouH oounts of skins eom]>iired Practical agreement of counts Mooio's report of 1875 Emiiloyes of lesEecs as Qovernment agents lUD, Regulations 1'uoposhu in tub Rkpout. The only regulations sufllcicnt Jurisdiction of Tribunol of Arbitration ,.., Unfairness of regulations proposed (a) Improremenl.i in Ihe methods of taking seals. On Pribilof Islands At sea .... .... Use of the rille obsolete Licenses applied to only one-half o£ the hunters Increased licenses of steam vessels of no value (6) Restriction in the number of seals to be taken. Unfairness of limitations proposed .... ((•) Specific scheme of regulations recommended. Regulations reoonimended Limitation of quota on Pribilof Islands Protective zone proposed Close season proposed .... Basis of proposed close season Close season would have little effect Not entering Bering Sea before July 1, no concession ('i)iiliinii'd. — Continued I'aitc. IM III 111 III W-J. IIL' 1i:( 111 115 115 11.-) 11(1 110 1I« 117 117 118 118 118 iin 1U» 120 121 121 123 122 123 VZ-A 123 124 125 125 125 125 120 120 120 127 I^JKul TABLK OF COXTFXT><. IX Tiinsn, RKat'f.ATtovs Propo»i:i) iv tiii: IlKi-miT— Conliniii'il. (i') Sjiffijlr nehi'ini' iif n\r/ii/al'(i>is rii-iiiinifitilci/ —Vin\\ii\wt\, Puir' " CoiiipniiMiitory ail jiutiiii'iits " |tro|i(i«c(l .... .... .... .... .... 1-7 Siipposcd peliigic o;itcli, l(),00(» 11 week liJH Unfiiiriii'.'is of CoiiiiiiisiiionfTs nIiowh ... . , . . . .. .... .... 12R .Mtpvniitivo mclliod-* of ivi»nliitiotiH .... .... .... 12S KKPLV OK TIIK rvrTKD SIAIKH I'll Till; HIUTI.Sll CI.VI.M'l I'OU DAMAdBS. Seizures uclniitlcd 121( I'roliiliition of spaliim ill Ucriiid Si'iv .... .... 12!) RiMibOliH wliv seizures were made .... .... ... .... .... .... .... 130 VosspIb seized, owned l)jr I'liited Statoft eitiieiw .... 130 Relations of Boseowitz, Warren and Cooper .... IMI Joseph Hoscowitz, United States citizen, owner ... . . .... .... .... 131 \. J. Ueelitel, United Slates citizen, owner .... 131 A. Frank, United States citizen, owner .... .... 132 No diimaj^es cin l)P awarded for prospijetive prodts 133 Decision in Geneva .Vrbitnition .... 133 .Vll damages claimed extT!•. ' ' f, ■• •if (. r M '•'* ■: M' ft'- ■ y ; ■ ,.. .. 1- ■■( ! ■ . • ■ i: PART FIRST. REPLY THE UNITED STATES TO THE BRITISH CASE FIRST PRESENTED. THB TBUB ISSUES IN THE FRESENX CONTBOVEBSY. It appears, from an examination of the British Difference of vio«s ^ 1 ,1 T 1 1^* -I 1 as to object cf Arbi- Case and the diplomatic correspondence above tration. referred to, that a difierent opinion is entertained hy the two Governments as to the object and scope of the present Arbitration. That Case is devoted almost exclusively to showing that the Government of the United States is not entitled to exercise territorial jurisdiction over the waters of Bering Sea or to exclude therefrom the vessels of other nations. On the other hand, the Case of the United States makes it plain that the niain object had in view by the latter Government is the protection aad preservation of the seal herd which has its home on the Pribilof Islands. The distinction between the right of general Protection of seals and exclusive jurisdiction over rJering feea and Arbitmtion. the right to protect is wide and obvious. the seals from exterminat In order, therefore, to sh ion lUM OW 8 THE TRUE ISSUES. if ^? .^n V- - ; I*' if;. 1^' m ■in-- ■I'. ; ''V ,,<. ^;hfn Arbitration. Origin of jurisdic' tional controversy. Protection of seals that the latter, and not the former, is the main the main object of , question before the Tribunal, the Agent of the United States deems it proper to place clearly before it some important considerations touching the manner in which the controversy resulting in the Treaty of Arbitration arose, and to indi- cate what have at all times been regarded by the United States as the essential issues. The diplomatic correspondence shows that as early as the year 1887 the United States claimed a property interest in the seals of the Pribilof Islands ; that the question of sovereignty over Bering Sea was first introduced by Her Majesty's Government and was not touched upon by the United States in the correspondence until three years after the first seizures of British vessels had taken place ; and that the subsequent discussion of that question has been at all times incidental to the main question,^ viz., the proper protection of the seals. On the 10th of September, 1887, Lord Salis- bury, in a note to the British Minister at Wash- ington calling attention to the transcript of the judicial proceedings in the cases of the Carolena, Onward, and Ihornton, referred to the ukase of ' Mr. Blaine tu Sir Julian Pauncefote, June 4, 18D0, Case of the United Slates, Appendix, Vol. I, p. 218, and also closing portion of Mr. Biaino'g boIo to Sir Julian Pauncefote, December 7, 1800, ibid., pp. 280, 287. . . ■ . Lord Salisbury refers to Russian ukase. THE TRUE ISSUES. 1821 and the treaties of 1824 and 1825, and insisted that they were conchisive in favor of ... . Great Britain's right to take seals throughout Bering Sea.^ The United States Government did not reply Mr. BajarJ invite* internationul coOper- to the point thus raised. On the contrary, on a»ion. the 19th of August, 1887, Mr. Bayard, Secretary of State, had already sent cut to various foreign governments a note,- in which he said : " Witliout raising any question as to the exceptional meas ures which the peculiar character of the property in question may justify this Government in taking, and without reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable ... to obtain the desired ends by international co- operation." ' : This was followed on the 7th of February, 1888,^ by a note addressed to Mr. Phelps con- taining general suggestions for international action, which, in principle, appear to have been assented to by Lord Salisbury.* ' Appendix to Case of the United States, Vol. I, p. 102. - Appendix to C'lisc of the United Stotes, Vol. I, p. 108. •' Appendix to Case of the United States, Vol. I, p. 172. •• Appendix to Case of the United State?, Vol. I, pp. 175, 212, 218. I '5 J .'ri f;f iv - ■ tv.-' 1 ft'5/:l Ft- i,5 •V' 10 Mr. Bayard inrites international oodper- ation. Mr. Blaine's state- ment of the issues. THE TRUE ISSUES. On the 2d of March, 1888, Mr. Bayard again insisted on the necessity of protecting the seals " by an arrangement between the governments interested, without the United States being called upon to consider what special measures of its own the exceptional character of the property in question might require it to take, in case of the refusal of foreign powers to give their coopera- tion." 1 At pages 1 68 to 1 94 of Volume I of the Appendix to the Case of the United States will be found the correspondence relating to the pro- posed international measures. O'l the 22d of January, 1890, Mr. Blaine, Sec- retary of State, wrote to Sir Julian Pauncefote, Her Majesty's Minister : " In the opinion of the President, the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that was contra bonos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the Gov- ernment and the people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Behring Sea ; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty the ' Appendix to Case of the United States, Vol. I, p. 175. THK TRUE ISSUES. 11 Justification of seizures. Emperor of Eussia in the treaty by which the Mr. Blaine's state- went of the issues, Alaskan Territory was transferred to the United States. The weighty conbiderations growing' out of the acquisition of tiiat Territory, with all the rights on land and sea inseparably connected therewith, may be safely left out of view, v\'hile the grounds are set forth upon which this Gov- ernment rests its justification for the action com- plained of by Her Majesty's Government."^' The grounds set forth were these : (1) The value of the sealeries and the absence of any interference with them down to 1886. (2) That the taking of seals in the open water rapidly leads to their extermination, because of the indiscriminate slaughter of the animal, espe- cially of the female ; with which slaughter Mr. Blaine contrasts the careful methods pursued by the United States Government in killing seals upon the Islands. (3) That the right of defense by the United States against such extermination is not confined to the three-mile limit, and Mr. Blaine remarks as follows : " Does Her Majesty's Government seriously maintain that the law of nations is pow- erless to prevent such violation of the common rights of man ? Are the supporters of justice in ' Appendix to Case of the United States, Vol. I, p. 200. II t >( ■■••■:l:l. iii- I* I 'It i' f '^ K^ I). •' i.r:g U' ll« HI i^ I 12 THE TRUE ISSUES. leizuret Lord Salisbury again introduces uka'ie. Justification of all iiatlons to be declared incompetent to prevent wrongs BO obvious and so destructive ? "In the judgment of this Government, the law of the seals not lawlessness. Nor can the lawof tho sea, and the liberty which it confers, and which it protects, be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the wel- fare* of mankind."^ These were the questions involved, according to the view of the Government of the United States. But, notwithstanding the clear manner in which they were presented, and the explicit statement of Mr. Blaine that the right of the United States to protect the seal es not depend upon the nature of their sovereignty over the waters of Bering Sea, Lord Salisbury in his note of May 22, 1 890,- again recurs to that subject by quoting Mr. Adams's protest against the ukase of 1821, relying thereon to estabhsh the light of British subjects to fish and hunt throughout Ber- ing Sea, outside the three-mile limit, which right, granting it to exist, Mr. Blaine had already stated, would not afford the requisite justification.^ ' Appendix to Cose of tho United Stairs, Vol. I, p. 200. ' Appendix to Case of the United States, Vol. I, p. 207. » Appendix to Case of the United States, Vol. I, p. 202. fe- ^^^v THE ERRONF.OrS TRANSLATIONS. IS It thus ai)r)ears that at the inception of this I'nited stutcij ^ '^ _ Bought international controversy the United States as8erted no right ngruement. to sovereignty over Bering Sea, but sought the concurrence of Great Britain in an international agreenientfor the protection of the seals, and that it was not until after this eftbrt had failed, on ac- count of the opposition of the Canadian Govern- ment,' that the Government of the United States undertook a reply to Lord Salisbury's assertion that the treaties of 1824 and 1825 with Russia precluded it from protecting the seals in Bering Sea beyond the three-mile limit. It :vas in this manner that the first four (questions stated in the Treaty of Arbitration were raised. It is not in- tended to say that they did not occupy a promi- nent place in the diplomatic correspondence, but only to point out that, long before they had arisen, the other and more important issues sub- mitted to this Tribunal had been the subject of elaborate discussion between the two Govern- ments. rrHE EBBONEOUS TBANSLATIONS OF CERTAIN BXTSSIAN SOCUICENTS. Sometime after the United States Govern- imposition pwc- merit had delivered its case to the Agent of Her states GoTemment. Britannic Majesty, it learned that an imposition ' Appendix to Case of the t'nited States, Vol. I, pp. 215, 216, 218. T. .\ h, mM K H;u 'i? iBl 14 THE ERRONEOUS TRAXST.ATTONS. Ht- Tin position prac- had been practiced upon it by a faithless official, ticed upon United -ii.i-iti • ^ • /» Stales Qovernment. and that it had relied on certain translations oi Russinn documents made by him, appearing in the first volume of the Appendix to its Case, which translations had in reality been falsified to a considerable extent. Notice of this was im- mediately given to the Agent of Her Britannic Majesty, and as soon as possible he was furnished with specifications of the false translations and with revised translations of those documents which the United Staten now retain as a part of their Case.^ Copies of the revised translations and of the notes sent by the Agent of the United States to the Agent of Her Britannic Majesty in connection with this matter have already been delivered to each of the Arbitrators. Partial restatomcnt Some evidence which the United States Gov- of its Case necessary. i. i j t j j. •^ , o ernraent had relied on, to prove that lor many years prior to the time of the cession of Alaska Russia had prohibited the killing of fur-seals in the waters frequented by them in Bering Sea, thus turns out to be untrue ; and it now becomes ' necessary for the United Statesto restate, in part, their position in respect to some of the questions submitted to this Tribunal. In so doing they will at the samo time introduce such criticisms upon, or rebutting evidence to, the British Case as may seem to be called for. ' Post, pp. 151-174. ■-.' * ! SiJ ll^ PERIOD PRECEDING TJII' TREATIES. 15 THE SITUATION ABOUT BEBINO SEA AND ON THE NOBTHWEST COAST DOWN TO THE TREATIES OF 18S4-*6. • Russia appears to have first definitely asserted Russia's colonial her rights to the territory surrounding Bering Sea, and to the Northwest Coast of America bor- dering upon the Pacific Ocean, in the ukase of 1799. It was clearly the intention of the Russian CTOvernment, as manifested both by this ukase and by its subsequent action down to the time of the cession of Alaska to the United States, to maintain a strict colonial system in the regions above mentioned. And the records show that down to a period as late as 1867, the year of the cession of Alaska, Russia persisted in this policy, although the control she exercised over those distant regions was not always vigilant enough to prevent a certain amount of unlawftU trade with the natives from being carried on there in disregard of her prohibition. The ukase of 1799 was directed against for- uitase of iroo. eigners. Upon this point a quotation is given from a letter from the Russian American Com- pany to the Russian Minister of Finance under date of June 12, 1824, as follows:^ "The ex- clusive right granted to the (company in the year 1799 imposed the prohibition to trade in those ' A facsimile of this document wns delivered to the British Govern- ment on Norember 12, 1892. s '] h|!:p.' ,h\ FT I' i'' |i I' ir'-i' Cliapter British Case. V 1 .v * ) PERIOD PRECEDIXG THE TREATIES. I'kasc of 1790. regions, not only upon foreigners but also upon Kussian subjects not belonging to the Company. This prohibition was again affirmed and more clearly defined in the new piivileges granted in the year 1821, and in the regulations concerning the limits of navigation." This interpretation of the ukase of 1799 is sustained by the subsequent history of those same regions, of In Cliapter I of the British Case an endeavor is made, however, to show that under the ukase of 1799 Russia reserved to the Russian American Company no exclusive rights as against foreign- ers, and that for many years prior to 1821 the waters a%cted by the ukase had been freely used for all purposes by vessels of all nations. This is sought to be made out by treating the waters of Bering Sea and those adjoining the NorthwestCoastofAmericaas a single area;^ and numerous instances are referred to in which portions of this area, namely, the shores and waters of the American Coast east and south of Kadiak, were visited by foreigners for trade with the natives. DisHnciion be- The territories and waters which the British region iind'"pncific Case thus confouuds the United States have carefully distinguished, and they take issue with Her Majesty's Government upon the point that ' British C«se, p. 13. \yf- '' . , ; 1 ;- Si 1 !' n.: r. ; t I- 1 ;!■. . ■ ■ 1 1 lil^u^k i:: L PEEIOD PRECEDIXa THE TREATIES. 17 " no claim has been advanced by Kiissia which Distinction be- ,. . . tween Bering Seik could possibly render a distniction between region and Pacific Oc6£tn. Behriiig Sea and the main Pacific of the slightest importance" (British Case, p. 60). The United States have devoted a portion of their Case, under the title, "Claims to the Northwest Coast" (pp. 26 to 33), to showing that the part of the American continent which is washed by the North Pacific Ocean was being constantly visited by vessels of all nations, and that serious con- flicts arose as to the trading rights there. Indeed, of all the voyages of foreign vessels, whether for discovery or trade, enumerated at pp. 14 to 20 and 29 to 31 of the British Case, not more than two or three relate to the shores and waters of Bering Sea. The fact is, that, while Russia's title to everything south and east of the Alaskan Peninsula was, in the early part of i-his century, in serious dispute, her title to the coasts north of this peninsula and to the Aleutian Islands, based upon prior discovery and occupa- tion, was admitted on all sides, and her rights there were respected by all nations. This has already been pointed out.^ The British contention (British Case, pp. 33, 35, 64) that the United States contested Russia's ' Appendix to Case of the United States, Vol. I, pp. 12, 13, especially the extracts from tlic Quarterly Review and the North American Review. [316] '.' h ' * Ml -' ki Pf ':\ I :i8 PERIOD PRECEDINQ THE TREATIES. I * i4 Distinction be- title to any portion of the North American con- tween Bering Sea region and Pacific tinent is Sufficiently disposed of by a remark made bv Mr. Middleton, in which he shows that he is merely denying her claims to any portion of the coast east and south of Prince William Sound, or thereabouts. He says, speaking of the early Hussian discoveries: '■ From these dis- coveries Hussia derives her rights to that long chain of islands intervening between the western and eastern continents, and even to a very con- siderable portion of the continent of America — rights which have never been contested." ^ Ukase of 1821. The ukase of 1821, vrhich was a renewed dec- laration of the colonial system already referred to, prohibited to foreign vessels the approach within one hundred miles to the shores of Bering Sea and to a large portion of the Northwest Coast of America bordering on the Pacific Ocean. The objects thereby sought to be accomplished are set forth at pp. 38 to 40 of the Case of the United States. <• c h a r a c t e r of Mucli luiscouception exists i n the British Case »' (control claimed ,, „ . .,,,,^, < >^)Ter Bering Sea. as GO the character oi the control which the U nited States claim was exercised or intended to be ex- ercised by Russia within this limit. The Covern- ment of the United States has already shown, at p. 57 and pp. 295 to 303 of its Case, that it does ' Appendix to Case of the United States, Vol. I, p. 13, and Ameri< can State Papers, Foreign Relatious, Vol. V, p. 450. U ^ ,fJ PERIOD PRECEDINa THE TREATIES. 19 not impute to Russia an intention to treat the Chamctev »f control claiiniMl one-hundred-mile belt as territoiy belono-ing to over Bering Sea. her, with tlie right to exclude therefrom vessels of other nations for all purposes. Nor have the United States any wish to dispute the conittruc- tion given by the British Government at pp. 38 to 40 of its Case, so far as it is designed to show that the main purpose of the ukase of 1821 was the protection of Russian interests upon the shores of the colonies, and that its maritime pro- visions were only intended to serve the purpose of effectually carrying out such protection. The distinction between the right of exclusive n' o \ e i u s i v e territorial juris- territorial jurisdiction over Bering Sea, on the (liction ckimefi. one hand, and the right of a nation, on the other hand, to preserve for the use of its citizens its interests on land by the adoption of all necessary, even though they be somewhat unusual, mea- sures, whether on land or at sea, is so broad as to require no further exposition. It is the latter right, not the former, that the United States contend to have been exercised, first by Russia, and later by themselves. The ukase of 1821 evoked strong protests. Protests uKuinst J . , , clI j. i. • 1 • 1 , iiki'se. 'iiul i'<-'8ultins and the characteror these protests is explaniefl at treaties. pages 50 and .51 of the Caseof the United States. It is further pointed out at pnges 52 and 53 that in the treaties resulting from these protests [316] 02 • «?; *i- m' ■55:; ■r-; "V, iiif ) t M ■ <:• ^-' t ■ »■■:■■ t ■ 1* ' ,1 - ; ■ i { ■ f ■ ,1 -'. 1 '\ .; " ■ i : ■ i' ''V i\;l: liir 20 PERIOD rREC'EDINO THE TREATIES. Protests iigninst a clear distinction is intended to be drawn be- ukaso, iiiiil resulting *'■''"''''"• tween the Pacific Ocean and Bering Sea, and that by formally withdrawing the operation of the ukase as to the Pacific Ocean, but not as to Bering Sea, a recognition of its continued opera- tion over the latter body of water was necessa- rily implied. The chief evidence, aside from that contained in the treaties themselves, upon which the United States rely to establish this con- clusion, is the seventh paragraph of the con- ference report of the Russian imperial com- mittee, appointed in IB'/i, which report is referred to at page 54 of their Case.^ Case oi the Pearl. At pages 57 and 73 of the British Case an incident arising out of a voyage of the American brig Pearl is cited to prove that, in the year following the promulgation of the ukase, Bussia acknowledged the maritime j urisdiction claimed therein to be without warrant as to any of the waters to which it related. The facts of the case are not, however, susceptible of such an inter- . pretation, as will appear from the following : (1) The Pearl was in the year 1822 suddenly ordered out of the harbor of New Archangel, where she had been lying for nearly a month.^ (2) The day following she was boarded by the ' The revised translation of this report appears in the Appendix to the Counter Case, p. 157, and should be consulted, - Post, p. 175. :;;:l .;, PERIOD FOLLOWIXa THE TREATIES. Russian cruiser Apollo, but there is no evidence to show that this boarding occurred in extrater- ritorial waters; on thecontraiy, the just inference from the words used in the protest "Ordered to leave the coast immediately," and from the single casual mention of the occurrence, is that it took place near tl\e shore. ^ (3) The owners not only pleaded complete ignorance of the ukase (and in this they were sustained by the fact that the vessel had sailed before the United States had received notice of the same), but they distinctlyadmitted that they would have obeyed its injunctions had they known of it.^ (4) The Bussian Government insisted up to the very last that the Pearl had violated Rus- sian law, and that the indemnity was paid only with a view " to cement those amicable relations to which the convention of April 5-17 had just .added new value. "^ 21 C'aae ul' the Piiiil. PERIOD FOIiLOWINO THB TREATIES. The strict colonial system, inaugurated by coniiiiuiiiiun T-, . , 111 f> r, 1 -1 P0l»"'l'l >Vst0111. Russia through the ukaseoi 1799 and recognized in express terms to exist by the treaties of 1824 and 1825, was continued throughout the period ' Post, p. 170. ' Post, p. 177. 3 Post, p. 180. I - ■ r" 1 . {■• , ' ■ I" iliiit 'M->.< u^ hi ■ -'H- 22.. PERIOD rOLLOWINa THE TREATIES. following the celebration of those treaties, and clear evidence of this is fin'nish(3d by the case of Case I ihc Lcriot. the Loviof, citecl at pp. 7y to 83 of the British Case. Deeming this incident only indirectly relevant to the question of right in and about Bering Sea, the United States dismissed it in their Case with a very bri^f mention ;' but the importance given it by the British Government now requires a more complete statement of the facts and issues involved. The treaty of 1824 granted for a term often years certain trading privileges upon the coast between Yakutat Bay and latitude 54''40'north.^ On May 19, 1835, the United States were noti- fied by the Russian Minister that the privileges had come to an end and that the captains of two American vessels at Sitka had been requested to take notice of this fact. The United States there- upon initiated strenuous efforts to obtain a re- newal of the piivileges in question, and while doing so news was received of the s^^izure by the Russians of the Loriot, an American vessel, for tradinguponthe Northwest Coast, inlatitude 54° 55' north, t.e., just above the southernmost limit referred to in the treaty of 1824. ' Case of tlio United States, p. 59. 2 Case of the United Slates, p. 58. ■.'1 i'' r |i :-.'^ '-f i:ll 1 1.. ■ :- liiv PEHIOD FOLLOWING TUE TREATIES. 23 Vigorous protests followed on the part of the Case of the Lonot. United States and compensation was demanded, the protests being used to strengthen the claim alreadyput forward fora renewal of the ten years' privileges. A summary of the diplomatic corre- spondence will be found in the Appendix hereto/ Itissufficienttosayhere that the Kussian Govern ment "was so obdurate in its refusal to recede from its position, that the United States Govern- ment was eventually compelled to recognize the correctness of the same and to completely aban- don its claim. In so far, then, as the Lonot case has any bearing upon the questions here in- volved, it shows that the United States Govern- ment recognized and acquiesced in the colonial system which Piussia maintained, even to the south of Sitka, Chapter IV of the British Case treats of the Chapter iv of tue Critish Case. waters of Bering Sea and the Pacific Ocean adjacenttothe NorthwestCoastduringthe period ; following the treaties. Some of the vessels re-; • ferred to as having made voyages to those regions visited the Northwest Coast only where, it is to be remembered, for ten years after the treaties trade was carried on by American and British citi- zens with the express consent of the Russian Government. After 1835, however, most of the ' Post, p. 180-184. ii??:Ul ■(» iiiH. M', p r 1 ) I I hi- I !:;:■ 24 PERIOD I'OLLOWINO THE TREATIES. Visits of wlialcrs toBering Soa. Chapter IV of tLe voyages tliat extended to the coast north of lati- Bntish Case, -^ " tude 54°40'\vere in violation of Russian law. All violations may not have been punished, but that the law was none the less in force is shown by the seizure of the Loriot, by the proclamation of the United States Government in 1845,' and by the proclamation of the RussianCovernmentin 18 G4.- Later, however, especially in the years follow- ing 1840, Bering Sea was actually visited, as pointed out at pp. 83 to 90 of the British Case, by numerous vessels, mostly whalers. But it is shown by Bancroft, the author so frequently quoted by the British Government, that the whaling industry was not, for the Russians, a profitable one,^ and there appears to have been no motive for protecting that industry by the imperial ukase or the regulations of the colo- nial government. Bancroft is also referred to in the British Case (pp. 83 and 84) to show that in 1812 the Russian Government refused Etholin's request that Bering Sea be protected against invasions of foreign whalers, on the ground that the treaty of 1824 between Russia and the United States gave to American citi- zens the right to engage in fishing over the ' Case of the United States, p. 59. 2 Post, p. 164. •' Bancroft's Alaska, p. 584. w PKRIOD FOLLOWINO THE TREATIES. 25 whole extent of the Pacific Ocean.' From what Visits of whalers IS said, liowever, hy tni.s saute autlior iinmcdi- ately following the above citation, it a[)pears that, tln-ough the endeavours of Etholin, " the Government at length referred the matter to a committee composed of officials of the navy department, who reported that the cost of fitting out a cruiser for the protection of Bering Sea against foreign whalers would be 200,000 roubles in silver and the cost of maintainin !■ .t . 'jiffs, ■'■I'M W m Mm 28 PERIOD FOLLOWING TUE TREATIES. f ! .'< ■ .i ■ ■':■ ■it' Mi Y !■"; It: 1:1' II Evidence of swr- Englishmen with regard to tlie trade carried on voillanco over Be- i-ingScii. by them with our savages. One of the concluding injunctions of this letter to the chief manager is as follows: " That the colonial seas, so far as possible, be visited in every part by the Compo-ny's cruisers for the purpose of keeping watch over the foreignei-s, and for this purpose, in giving instructions to our cruisers, that you conform yourself to the intended movements of the Company's an haling vessels, which can also do duty as cruisers if they are carrying on their fishery^in Bering Sea, and provide that the Company's vessels designated for visiting the many islands of the colonies be, so far as possible, under the com- mand of naval officers."* On the 2()th of June, 1861, the chief mannger wrote to Benzeman, of the imperial navy : " It has come to my knowledge that two whaling vessels have been sent this year from San Francisco to trade on the Pribilof Islands. I therefore request your excellency, during the time appointed for your voyage, to do duty as a cruiser on the exact basis of the instructions herewith inclosed, which have been approved by the Emperor."^ ' Po-v^, p. Ifil. = Post, p. 102. II f PERIOD FOLLOWING THE TREATIES. 29 While It does not appear from .ny of the fore- Conclusions from 1 i. J. li-Ti. i«'i.i 1 foregoing evidence. going documents to whatdistance iromthe snores of Berhig Sea Russia actually sought to protect her colonies against inroads from foreigners, yet there is nothing to show that she had in the meanwMle receded from the position taken in the ukase of 1821 and sanctioned, as the United States claim, by the resulting treaties. On the contrary, the broad language in which a patrol of the colonial seas is directed to be instituted, especially about the Pribilof and Commander Islands, strongly suggests that even at this late period Russia was still safeguarding her colonial interests by all necessary means. It is true, no instance appears to have been recorded where a vessel was warned or seized for actually killing fur-seals in the waters of Bering Sea. But in view of what we know of Russia's solicitude and care for her sealeries, especially in the years following 1836, it can not be doubted thai such killing, had it occurred, would ha /e b1 n', lis ri' i I 92 PROTECTIOX AND PROrERTY RIGHTS. 1 •t ' .('■ 'f ')■:■ ''."' • , , '■ • . • History of pro teetion nnd prop erty claims. THE BiaHX OF PROTECTION AND OF PBOFEBTT IN THE ALASKAN SEAL HEItD. British view of At puges 11 and 135 of the British Case the protoctionand property ckims. propositioii Submitted in the fifth question of Article VI, viz, whether the United States liave any right of protection or of property in the fur- seals of the Pribilof Islands when found in extra- territorial waters, is described as new in the present discussion and as being of an unprece- lented character ; all of which tlie United States deny. In view of the correspondence which has re- sulted in the submission of the fifth question to arbitration, this declaration is most surprising. As early as August 19, 1887, Mr. Bayard, in his note, sent out with the hope of obtaining the co- operation of all governments in the protection of the seals, speaks of the " exceptional measures which the peculiar character of the property in question " might justify the United States in taking towards its preservation.* A similar state- ment was again made by him March 2, 1888.^ Mr. Blaine, in his note to Sir Julian Paunce- fote of January 22, 1890, insisted on the right of the United States to protect the seals, quite irre- spective of any peculiar rights in Bering Sea.^ Mr. Blnine sists on riglit protection. in- of ' Appendix to Case of United Stales, Vol. 1, p. 1G3. - Appendix to Case of United States, Vol. I, p. l7o. •* Appendix tc Case of United States, Vol. I, p. 20O. I fi; ■J' PROTECTION AND PROPERTY RIGHTS. 33 This note has ah'eady been referred to at some Mr. BJaine insists on right of protec- length {ante, p. 10), and some of the grounds tion. have been pointed out upon which the United States Government deemed itself justified in its action. Mr. Blaine assimilated this right of protection to that conferred u})on Great Britain by her '"ownership" of the Ceylon pearl fisheries. Although it is not specifically claimed therein that the United States own the seals, yet the point is strongly suggested, while the right of ])rotection, irrespective of strict ownership, is asserted in clear terms. On June 4, 1890, Mr. Blaine wrote to Sir Julian Pauncefote: "May I ask upon what grounds do the Canadian vessels assert a claim, unless they assume that they have a title to the increase of the seal herd ? If the claim of the United States to the seals of the Pribilof Islands be well founded, we are certainly entitled to the increase as much as a sheep-grower is entitled to the increase of his flock."' On the I7th of December, 1890, Mr. Blaine .Turisdictionai .... . quoslions not the true addressed to the British Minister an exhaustive is8i:os. note in relation to the construction of the ukase of 1821 and the treaties of 1824 and 1825.'- Notwithstanding the earnestness and vigor with Mr. Blaine assorts ownership in seals. ' Appendix to Cnsc of United States, Vol, I, p. 219, -' Appendix to Case of United Slates, Vol. I, p, 20!J. [:U6J h-^ '^ TS $ V . ilK.i *4 ' li 1 w ' < I t .■ > m . ; ■ :!'■ I ■;(.■■ f! ) ' ;!■ (■'■* ' ;- ■ i 34 PROTECTION AND I'ROPKRTY RTOHTH. Mr. Phelps asserts ownersliiji in seal- erics. r r. ': ! .Turisdietioiuii which he hiid defended his position based upon questions not the true , . . , i» i • issue. those documents, he insisted at the close oi his note that he had not been dealing with the true issues in the case ; and he forthwith proceeded to state those issues by quoting the following from a despatch written by Mr. Phelps when United States Minister at London to Mr. Bayard, Secretary of State, on the 28th of September, M„rf riaiixiiiinioc- 1888.' Mucli learning has been expendetl uiion trine iiinpiilieable. the discussion of the abstract question of the right oi 7nare clausum. 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 pro}>- ei'ty of the nation on wliose shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this busi- ness by the indiscriminate slaughter and exter- mination of the animals in (piestion in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no interests at all involved. And it is suggested that we are pre- vented from protecting ourselves against such depredations because the sea, at a certain dis- tance from the coast, is free. Appendix to Ciise of United States, Vol. I, p. 287. :l, PROTECTION AM) I'ROPKRTY RKIHTS. 85 " The same line of ar^'ument would take under vii ix-ts notjusiiii- iiblt' l)i'c'ausi' coni- its protection pu-acy and the slave trade, when mittai on iiigh acn^. prosecuted in the open sea, or would justify one nation in destroyin^^ the commerce of another hy placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not he allowed to be done on tlie open sea with impunity, and against wliicli every sea mtnareclaiDium. And the riuhtof self-defense as to person and property prevails there as fully as elsewhere. If the tish upon Canadian coasts could be destroyed by scattering poison in the open sea adjacent, with some small profit to those engaged in it, would Canada, upon the just prin- ciples of international law, be held defenseless in such a case ? Yet that process would be no more destructive, inhuman, and wanton than this. " If i)recedents are wanting for a defense so <^i""iii oi' inur- ^ national lau-. necessary and so proper, it is because precedents for such a course of conduct are likewise un- known. The best international law has arisen from precedents that have been established when tlie just occasion for them arose, undeterred by the discussion of abstract and inadequate rules." The views thus expressed by Mr. Pheh)s were 'i'''" Liiiicii smtos , , , adopt Mr. Phelps's declared by Mr. Blaine, in his note, to bo the^'"^**- views adopted by the Governnkent of the United States. [310 1 ; D 2 if i "1M : 'a! wf ri^- 1 ■,;| ! I ■ . I i'y |v i" ■ 1 ■■! i. 1 ' ' V ■ hi--' rjai j- 36 PROTKC'TION AND PKOi'ERTV RIGHTS. •rror. Lord Suiisbury h, Qn the 14th of April, 1891, Mr. Blaine wrote to Sir Julian Pauncefote : " In the opinion of the President, Lord Salisbury is wholly anti strangely in error in making the following state- ment : 'Nor do they (the advisers of the Presi- dent) rely, as a justification for the seizure of British ships in the open sea, upon the conten- tion that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.* ■Kighis niisiiig out *' The Government of the United States has luiuis iind iiubiis of steadily held just the reverseof the position which Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which seals breed ; that the habit of the seals in refjularlv resorting thitherand rearing theiryoung thereon ; that their going out in search of food and regu- larly returning thereto, and all the facts and in- cidents of their'relation to the islands, give to the United States a property interest therein ; that this property interest was claimed and exercised by Russia during the whole period of its sover- eignty over the land and waters of Alaska ; that • ' ■ England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the whole period of liussia's ownership of Alaska and during the »;. i"- m PHOTECriON ,\M> I'ROl'KRTY RIGHT!?. ar first nineteen years of the sovereiijfnty of the Rights arising out of ottiiersliip of Is- United States. It is yet to be determined whether i'""!* u"d iiabits of the lawless intrusion of Canadian vessels in 188G and subsequent years has changed the law and equity of the case theretofore prevo-iling." The correspondence also shows that the habits ^^^i <"■»'•» relaUng ■"• to propcrtj clnini of the seals, all the details as to their life on the ^"".^ '''""wwi. Pribilof Islands, the character of their annual migration, and all the facts necessary to support ,' the claims of protection and of property set up by the United States, have been the subject of careful investigation and discussion between the two Governments.^ HI .'Appendix to British Cnsc, Vol. Ill, Part 1, pp. 424-453, and House Ex. Doc, No. 450, 51st Cong., 1st scss., pp. 15-51. At jip. 45 (if Vol. Til and 48 of the Ex. Doc. aforesaid. Dr. Dawson, one of the British Bering Sea Commissioners, under date of March 5, 1K90, discusses fully the facts ujmn which tlic property claim is based. See also Debates House of Commons, Dominion of Canada, 188H, Vol. XXVI, p. 97(3. In a speech made April 25, 1888, Mr. Baker, M.P., quoted the following from the tenth census (1880) of the United States : " The fur seals of Alaska collectively and individ\ially ;ire the property of the general Government. * * * Every fur >eal playing in the waters of Bering Sea around about the Pribilof Islands, no matter if found so doing 100 miles away from the rookeries, belongs there, has been begotten and born therein, and is the animal that the explicit shield of the law protects; no legal scepticism or quibble can cloud the whole truth of any statement (nic)." Commenting on the foregoing, Mr. Baker says : " It would appear that the United States revenue cutters are going on some absurd contention of this kind in their seizure of British vessels in the Behring Sea." KM:, ■■'.'■ -'• %^im dm •.•■?■ ■:'l-, •Wit ll,|M|l f ■•■ n vmrnx'Tios and proi'krtv riohi's. It;. ■•ii; |!.v:;. ■;.■ 1 'i:i,%. i-\i I I > V It- > . (ill i V i . ^ ■ 1 r ■■ • Claim of protection The foreffoini; completely disproves the tate- iinrt ownership not o o i n«w. merit at page l;{5 of the BritiHh Case that the claim of protection and of ownership by the United States in the fur-seals is new ; and also the statement at page 140 relating to the " absence of any indication as to the grounds upon which the United Stntes l)ase so unprece- dente' ••>«• B"' protection or property in seals when found on the higli seas. Seals were never taken at the Falkland Islands otherwise than on land, and the Hornet was not charged with the oftense of taking them on the hij^h seas. Second. The real (juestion in the dispute was whether the liepuhlic of Buenos Ayres owned the coasts upon which sealing liad been in- dulged in by the captured schooner, and upon this point issue was actually joined by the two Governments. The position assumed by the American Charg6 was that the Falkland Islands were unoccupied and under the sovereignty of no nation, and that, therefore, sealing on them was open to all. Third. It is true, the Ameri(;an Charge asserts that " the ocean fishery is a natural right," and that " every interference with it by a foreign power is a natural wrong ;" and these assertions appear to be relied on at page 137 of the British Case to defeat the claims of protection and pro- perty now put forward by the United States. The contex,t^ shows, however, that, so far as sealing is concerned, the Charge was merely laying ..T. un- dation for the proposition that, granting tne title of Buenos Ayres to the coast in question to be ' Po'it, p. 190. =';":!if>i**i%^ *•: lt\ ■ i- r (11 > :,- 1; r f I''' ' iW PROTKCTION AND PROPKRTY STOUTS. |>, : : t ■ ■f. • ■i . -1: p f ■■■' i ■ , .t. ■ '. ; ,»'■' ■ ';^ ' !• . M'[' ->.. t '. !,',■„ .■^^ ,5;' fl: i' ' ! 'V ■ vii'M m 'i ■ ■';ij K fc.^ >j.. "'f-'- j.^i ■•w- (-)■■ Mi ^M i Case of the Har- perfect, yet it was bare and uninluibited, and, therefore, justice required that *' tlie shores, as well as the body of the ocean, ought to be left common to all;" which proposition, if established, would have justified the act of the Harriet. The accuracy of this ])roposition the United States are not now called upon to discuss, since it has no bearing upon the present issues. In dismissing the case of the Harriet the United States a^'^ain insist that it is wholly irrelevant to the present controversy, for the reason that no occasion had arisen for the asser- tion of any right to protect seals when away from land, and no such right was, in fact, either asserted or denied by either party. PART SECOND. REPLY OF THE UNITED STATES TO THAT PORTION OF THE CASE OF GREAT BRIT- AIN CONTAINED IN THE REPORT OF THE BRITISH COMMISSIONERS. ■ill m •■i : r.V& ' i'fi ■^ ♦^J t PART SECOND. HEPLY OF THE UNITED STATES TO THAT PORTION OF THE CASE OF GREAT BRITAIN CONTAINED IN THE REPORT OF IHE BRITISH COMMISSIONERS. i ' (J ■■.'J M '■I {:'' k'h THE BRITISH COJUtUISSIONEBS AND THEIR REPORT. The Keport, bearing- date June 21 , 1892, oi the Commissioners of Grent Britain, wh.ich is herein treated as the second part of the British Case, was delivered to the Ag'ent of the United States and to the Arbitrators in pursuance of an agree- ment reached by a diplomatic correspondence between the two Governments, already cited (ante, p. 2), but not until the 25th of October, 1892, and after the lapse of seven weeks from the delivery of the ori • Coinmissionevs. lations proposed in the Keport^ constitute matter which should be dealt with in this Counter Case. It will be treated of under appropriate heads. ' Note. — The term " Report " as used herein refers to the Report of tlie Bering Sea Commissioners, unless otlierwise si)ecifietl ; and the term "Ciwe" refers in the same manner to the Case of the United States. All references in the text of this portion of the Counter Case to sections or pages refer to sections or pages of the Report of the British Bering Sea Commissioners, unless otherwise specifically stated. t'i %-m ■-#1 ' ;..%' i i 11' -•==^ip If ■f jl' ' '^ h' 1 :. ^;iJ m •1 ,■ . Ml &\ ;ll m t. ■ ' J1 *^ . >; .■•-' . r- <• Hi ! m Mv-- l" i'';l: li: ii if: t i^ ir'^'v ' " FIRST. MATTERS IN RELATION TO WIf.ICH THE REPORT AND THE CASE OF THE UNITED STATES MATE- RIALLY CONFLICT, AND COKOERNINO WHICH PROPOSITIONS OR FACTS ARE AX.LEOED IN THE REPORT WHICH HAVE NOT BEEN CONSIDERED IN THE CASE OF THE UNITED STATES. HABITS OF THE FUR-SEALS. 1. Distribution oj seals in Benrnj Sea and the sur/c/ested intermimjUnfj of the Pribilof and Commandet' seal herds. iiiieriiiiiiiriiMf! of Tlio British Commissioiiei's, ill consideriiig tlio ilu? Aliiskini mid . , • t /• , i i i i> , ,• ,■ Kussian iifrcis*. interiiiiiio-ling ot the two herds, atter stuting the fact that the Pribilof herd enters and leaves Ber- ing Sea by the eastern passes of the Aleutian Islands and referring to certain statements made in the Report as to migration, continue: "These circumstances, with others which it is not neces- sary to detail here, are sufficient to demonsti-ate that tJie main migration routes of the seals fre- quenting the Commander Islands do not touch the Aleutian chain, and there is every reason to believe that, although the seals become more or less commingled in Bering Sea during the sum- mer, the mioration routes of the two sides of the North Pacific are essentially distinct." (Sec. 198.) m- DISTRIBUTION IX BEKINa Sli.U 49 Again, in considering tliis question, after male- inieimingiing of ' . II- *'^"' Alaskan and ing practically the same statenrient, that the mi- Russian iicrda. . gration routes are distinct, the Commissioners add " ■" '" * it is beheved that, while to a certain extent transfers of individual seals or of small groups occur probably every year between the Pribiloff' and Commander tribes, that is exceptional rather than normal" (Sec. 453). In spite, however, of these admissions that all inter- mingling of the two herds is abnormal and infre- quentjthey still assertthatsuchintei'change takes place (Sec. 170). In support of such an assertion two charts are presented in the Report (Nos. Ill Charts Nos.iii and ^ ^ . \ IV of the Report. and IV, facing p. 150) purporting to give the distribution of seals in Bering Sea during; two periods, namely, July 15 to August 15 and Au- gust 15 to September I.') (Sec. 213;. The chart chmtNciiof th« Report. also, which purports to show the reports and migration routes of fur-seals in the Nortii Pacific (No. II, facing p. 150), assumes a similar distri- bution. The data, from which these charts as to the Data from which . . . the r-iuirts were com- distribution of seals in Bering Sea were con- piled, structed, are stated in tlie Report to be the seal- ing logs kept by the American and British cruisers in Bering Sea during the season of 1891 and " information on the same subject * * * sought in various other ivays, such as by inquiry [316] K .h'\ .« .■ ■ I !! ' ■ I :'' .1 "■ let li I ■■I ^' I 50 ItAUITS OF TITK J'UK-SEALS. Tnsufllt'iency data. Data from wiiitii fi'om the captaius and hands of seaUng vessels the charts were com- . . . piled. met in Victoria and vancouvei" and iromthe in- habitants of various places touched at during the of summer" (Sec. 210). The United States deny that the data collected by the American and British cruisers warranted such construction of the charts Nos. Ill and IV or of tliat part of chart No. II which purports to give the summer resort of the two great seal herds. A.nd the United States claim that the "information" ob- tained "in various other ways" should have no influence upon the Tribunal, inasmuch as the evidence or statements thus relied upon are nob presented and the Commissioners have even failed to give the names of their informants. It is evident, from the particular manner in which the Report describes the way in which the data collected by the war ships of the two nations were taken (Sees. 210, 212, 213), that such data were their principal source of informa- tion ; but it is contended that the observations of seals, reported by the vessels, do not sustain the assumed density and distribution of seal life In Bering Sea which is made to appear by the charts above referred to. In support of these denials the United States produce the copies of the data relied upon, compiled from the seal logs of the British cruisers by the British Coinmis- Principal data relied upon. it 4- ■.ii i MSTRIBUTION IX BKRINO SKA. 5Jf cruises g Sea in sloners, and by their courtesy tiirnished to this' Principal duia ^^ rrlii'd iiiioii. . ,, Cjrovernment, and the data compued from the seal logs of the American vessels.' The attention of the Arbitrators is particularly directed to the area of sea between the Pribilof and (Jommander Islands, the extent covered by the cruises in that section, and the number of seals there observed. The United States also present in support of. ^^i|'*. °^ r •■ •'^ in Bering their contention on this question a chart showing i**^^- the cruises of American vessels in Bering Sea during the summer of 1892, which vessels made particular observations as to the density and locality of seals in Bering Sea." This chart is compiled by the Navy Department of the United States from the logs of the American Bering Sea squadron on file in that Department, and it demonstrates how comjoletely the sea areas about the Pribilof Islands were covered bv the observations of 1892. The United States also present in support of S(>niing diart, their position on this question a chart, compiled from the seal logs of said vessels, kept in the same manner as those of 1891 by each vessel of the squadron, whicli chart shows the num- ' Charts of cruises and seals seen, 1891, Nos. 1 and 2. Pc rtfolio of maps and charts appended to Counter Case of the United States. - Chai^t of cruises, 1892. Portfolio of maps mid charts aj)pended to Counter Case of tlie United States. .:.! [3161 ...r?.,-. «» . .,< E 2 11 rrfRIH ■' 1 ^ 1 \m I 'if i M : :t f ;il i li i I 512 U.VBITS OF Till!: 1'UR-.SI:AL3. ' t v.. ir::.t: , i'. Vi ' • %'{' J' ', t '■; i \ ■i . :■■ !c': \\'.-i- Scaling chart, bev of seals 86011, the locality where observed, 1892. and the date of the observations.' A comparison of this chart with the sealinrj chart submitted with the Case of the United States," the charts {giving the data from which the British Com- missioners drew their inferences,' and the chart showing the cruises of the American squadron . .. in lSn2,^ demonstrates conclusively the lack of evidence to sustain the Conunissioners' assertion, and shows that the assumed distribution of seals in Bering Sea, exhibited by charts Nos. IT, III, and IV of the Report, is unwarranted and mis- leading.* It may also be noted that the Com- missioners in chart II make it appear that the Commander and Robben Island seals inter- mingle ; this is, however, specifically denied by Mr. Grebnitzki, the Russian official so often quoted in the Report." ' Seal Chart, 18D2. I'ortfolio of niups and cliarts appended to Counter Case of United States. '' Sealing chart. Portfolio of umi)s and charts appended to Case of the United Stales. No. 4. •' Charts of cruises and seals seen 1891, Nos, 1 and 2. Portfolio of maps and charts appended to Counter Case of the United States. ^ Chart of cruises, 1692. Portfolio of nuips and charts appended to Coiinter Case of United States. ' Sec also Capt. Hooper's invcitigations ii» 1802 as to range of Pribilof seal herd in Bering Sea. Keport September 6, 1892, ^io.v^ p. 216. * Vost p. ,363. Mr. Grebnitzki, the Russian military cliicf on the Commander Islands, is so often cited by the Eritish Commissioners that the attention of the Arbitrators is particularly directed to his statements, hereto appcndo;!, 'posf pp. 362-367. BjU,: .; I i AU.KGKD FROMLSCUOUS NURSING OF PUPS. 53 f;. The alleged promiscuous nursing of pupa by female seals. • ■ ■ The United States deny that the statements Promij-ouous nur- , , , _ . , . sing denied, made m the Keport, m support of the assertion that a cow will nurse pups other than her own, are based on evidence sufficient to estabhsh the facts alleged. The two most prominent authorities relied on Elliott and Bryant J 1 -r> . Tir TT ITT T-111- , ■ 1 8» authoritira in the in the Jteport are Mr. Henry W. Jhilliott and Report. Capt. Charles Bryant, the former being quoted over fifty times in the first one hundred and forty-five pages, and tl;e latter forty times in the same space. Yet the opinions of these two observers are to the contrary on this point ; and, while their opinions are taken without reserva- tion on all points favorable to the conclusions of the Commissioners, they are, in respect to this question, characterized as a " theory " (Sees. 320, 322, 823) and " not proven" (Sec. 321).' The Report attempts to disparage Mr. Elliott's Cow's affection for her young. opinion by quoting him to the effect that the female seems to possess no natural affection for her offspring (Sec. 322), but fails to state that Sir F. McCoy, F. R. S., also quoted in this con- nection (Sec. 324), publishes, in his article referred to in the Report, a letter from an in- ' See nlso N. jV.| Grebnitzki, post p. .'56o ; Dampier's statemrnt, Keport, Sec. 848. ,'■>' -i Wi '7 It.' -l i" !■'• .,. •: U r)4 UABITH OF THK FL'RHE iLS. fT * Analofty wil h other animals. Cow's afTcution for fonuaiit, Oil vvhoiu he relies for his Icnovvledge of licr young. _ . • i n • seal habits, in which the following statement is made : "They [the cows] keep good watch and care affectionately for their offspring. * * ''' I have seen three pups washed off the rocka and the cows have immediately followed and brought thein on the rocks again in an astonishingly rapid manner."' The attention of the Arbitra- tors is also called to the testimony presented on this point in the Appendix herewith submitted.' The Report admits that " analogy with most other animals appears to favor this view " (Sec. 317), and thai it "may hold in the case of the fur- seal " (Sec. 318), but insists that the observers have been misled l)y this analogy (Sec. 317) and by the circumstance that they have seen a "ow refuse to take the first pup she meets and select . another to be nursed (Sec. 323), adding that such selection mav be the mere act of tindiuff a pup which does not have the smell of fresh milk about it (Sec 323). And it is further suggested that tins selection may be made " perhaps by Authorities relied souiid " (Sec. 323). Tvvo authorities are particu- upon in the Report. . . , larly quoted in support oi the position taken in the Report : " Sir Samuel "Wilson, M. P., the ' Prodromus of the Zoology of Victoria, by Sip F. McCoy, F. R. S., decade VIII, p. It. = J. Stanley-lJroNvn, p. SHS ; W. H. Williiiiiis, p. 398 ; C. H. Town- send, ]). :«t3. AI-LKaiCI) 1>ROMIS(T'OUS NTRSINa OF' PUI'S. 55 eminent Australian sheep-l)ree(ler," wlio says. Aiithonti.o relied , , * upon ill tlic Ui'port, " it IS common and easy to make ewes huckIc otlier ewes' lambs," and then demonstrates how difficult it is to do so (Sec. ;32r)); and Mr. C. II. Jeackson, Govei-nnient Agent in charg'e of the Seal and Guano Islands of Cape Colony, who asserts that " a cow will suckle any of theyounu' seal, whether hei' own or not " (Sec. 324). As to the statements of Sir Samuel Wilson, they are sufficiently in accord with the position taken in the Case of the United States on this question to demand no criticism here. Mr. Jack- Mr. c. h. Juckson ,1 .1 1 1 1 T . , • tt niie»tionablo son, on the other hand, makes a direct assertion uuthority. on the subject which is opposed to the evidence contained in the Case of the United States and to the principal authorities of the British Com- missioners. An examination of the report of this gentleman (pp. 154,155) fails to reveal upon what knowledge he bases such a statement; and tliere is no proof that he has ever seen the seal islands of Cape Colony or even been informed by experi- enced individuals respecting the habits of the fur-seals found there. Undersuch circumstances the United States insist that his statement is unworthy of consideration as evidence. The Eeport also alleges that "the same state- sir f. McCoy as ment [as Mr. JacksonsJ is made with respect to the fur-seal of the Australian coast" (Sec. 324), I" I- 'M ■ ■ ■■»■ ^. hi ■*!■'. i {■\ : t" ' r I '.■ f. i •» I n i - ' >'! - I. .• ■:' 56 HABITS OF THE FUR-SEALS. Sir F. McCoy cs referring in a footnote to the work of Sir F. an authority. , . . McCJoy, already mentioned nereui. Tiie fol- lowing is the statement as it appears in the arti- cle referred to and is an extract from the letter of Mounted Constable Ardill, incorporated in full in said article and republished in the Appendix to this Counter Case :" "Should a cow die or be killed, her pup is suckled by the other cows. This I am told is the case, but I can't vouch for it." This last noted authority, which appears m the Report as Sir F. McCoy, proves to be a mounted constable, who makes the statement on a report so untrustworthy that he will not even vouch for its truth. The United States, therefore, claim that the Commissioners have failed to advance a sinsrle authority whose opinion is of value to support their contention that a cow will suckle any pup except her own, and that the contrary position taken by the United States and sustained by ample evidence^ stands uncontroverted. ' Ante, p. 53. 5 Fast p. 292. ^ N. A. Grebnitski, po.it p. 36f>, and testimony gubmittod with tho Case of the United Staten, Appendix, Vol. II, pp. 62, 104, 117, 375, etc. ■'r : t- ri* WHEN COWS ENTER THE WATEB. 3. Period at lukieh the fenvdc seals go into the rcater. 57 The Report, withoutdefinitely statins' that the Position token by female seals do not seek the water for from four authorities. to six weeks after the birth of their young, practi- cally adopts the opinion of " Snegiloff" [Sniege- roff], the native foreman on tlie Eu'^sian Islands, as well as the statement once made by Capt. Bryant on this subject, and supports these opin- ions by refei'ence to the Commissioner's own observations as to the relative number of cows and pups on the rookeries at diifereiit times in the season of 1891 (Sec. 300). The "very general belief among natives on the Pribilof and Com- mander Islands to the effect that the females do not leave tlie land to feed while engaged in suckling their young " (Sec. 307) can not be accepted as evidence in the absence of names of persons holding such belief; and the fact that two females killed in September in the presence of tlie Commissioners had no food in their stomachs (Sec. 307) may be dismisset^ without considera- tion, as at the time when these cows were killed the Ctunmissioners admit that the majorityof the cows were feeding (aec. 30G) ; and the number killed is too small to establish the assertion advanced in tlie Report. The information also given by Her Majesty's Minister at Tokio — -that "It is sometimes stated f. seaffiBia aaaa M UM i !l I; iorth Aiuericnn I'inuipwb, \). 382. ir V. ;i' J I m-^ ^"^^MmsBsism 11 II f 60 HABITS OF THE FUR-SEALS. TestiiroiiyofC.il. the nui'siug females liad already extended their Townsend. /> i • • i i i food excursions even in the last days of July.' Tlie same witness states that on the 27th of July, 1892, large numbers of the females Avere away from the roakeries on 8t. Paul Island, and that four-fiftlis of the seals on the breedinjx grounds were pups/ It may be noticed in this connection that this was thesamo date at which the British Commissioners arrived on the Islands in 1891 (Sec. 759), when thsy state that "the rookeries were still at their fnllesl." (Sec. 3). Mr. Tcsiiniony of J. Stanley -Brown, whose special study of seal life Stanley-Brown. , on the Islands in 1891 and 1892 has marie his opinions of the utmost value, states that the females leave the rookeries within fourteen or seventeen days after the birth ot their pups, and he shows by what observations he became con- vinced of tlie fact." 4. Aquatic coition. Artirmniion of its The Report states that " most writers," for cer- possibility by (he _ Ecport. tain reasons, have advanced "an erroneous state- ment " that the place where fecundation of the female seal occurs is on the land (Sec. 295). The Commissioners affirm, on the contrary, that it is not only possible for seals to copulate in the ' Post p. 393. - Post p. 38(3. AQUATIC COITION. 61 water/ but that such act is of m'eat fVenueiiey Aflirmation of its . ^ '' pjssibility by the when the males are insuflR.cleat in number on the Report, rookeries (Sec. 207). This allegation as to tlie possibility of pela^-ic coition is stated in the Report to be established by "ample proof" (Sec. 2-46). An examination of this "■ ample proof" shows The pviiienco ^favour of iiiiimlic that it consists of the following: The opinion of rui' ion. Capt. Bryant, contained in his report to the Treasury Department in 1869 (wliich, as has been shown, is entirely superseded by his pa[)er in the -" Monograph of North American Pinni- peds "), and two statements made by him in the latter work (Sec. 295), the references being to pages 385 and 405 (footnote, p. 52), lioth of which clearly allege the possibility of coition in the water. Besides these statements of C:ipt. Bryant, the Report cpiotes Mr. W. H. Dall, A\ho made a statement to Prof Allen that the female seal receives the male in the water (Sec. 296, p. 53). The remainder of the " ample proof" con- sists of "special inquiries" made by the Com- missioners, which "have fully confirmed Bryant's original statements, the evidence obtained includ- ing that of four or five gentlemen who have had long experience with the Pribilof and C'om- ' Mr. Qrebnitzki, nn authority recognized by the Koport. doclureg that ho brieves copulation in the water to be iinpossiblc, Post p. 3C-1. 'A ifiH ■ I •f ;ri3 Ifei 1 1 |1 ■ '*■:« f ■ lip pi 1^7, M ,1 ■ *'i I :■:! (52 HAmT.-t OF THK Kl'R-.^KALS. Thp cvidonce in mapclef Islantls, and several intelligent and favour of aquatic coition. cbservant hunters who have been engaged in sealing at sea " (Sec. 296). The latter general- ization of information, in which neither the names of the " four or live gentlemen " nor those of " the intelligent and observant hunters " are • - given, can not be considered in the light of proof to substantiate the position of the Report on this question, ' . ' It is a significant fact in connection with the proofs advanced by the Commissioners that, not- withstanding the observations made by. these officials on and about the Pribilof and Commander Islands, they fail to have seen, or at least to re- cord, a single instance in which the act of coition took place in the water, although ii would seem that instances must have been frequent in the waters about their vessel, if their statements as to the scarcity of the adult males on the Islands are to be accepted, ai As to the opinion of Capt. Bryant, relied upon by the Commissioners, the attention of the Arbi- trators is directed to his deposition submitted with the case of the United States, ' The other W. H. Ball as an authority cited in the Report, namely, Mr. W. H. Dall, gives the following testimony in relation to pelagic coition, after saying that his statements ' Appendix to Case of the United States, Vol. 11, p. 6. Capt. Brvant an autliority. authority. Si if AQUATIC COITION. ('.;] '' as to copulation in tlie water rest lai-fjely upon W. ll. Daii ns nn . .... ii'itliority. assumption," and after reciting his observations as to seals seen playing in the water : " 1 have never had an opportunity to assure myself that the pairs of seals seen playing in the water were, of opposite sexos, or, if they were, that their play was of a sexual nature, or, if it was, that the act was complete or effective.'" r In view of the facts stated and of the quantity ,^Z^!:^^i: of testimony on this point published witli their f'"' Report. Case,- the United States submit that there is no proof, " ample " or otherwise, to support the as- sertion that coition takes place in the water. (Sec. 24G,p. 43.) • " The United States further claim that the posi- tion taken in the Report on the question of when the female seals leave the rookeries after the birth of their young(«nie,p. 57) is entirely inconsistent with the proposition maintained by the Commis- sioners"that the timeofimpreguationofthe female isnot necessarily comprised withintheperiod dur- ing which she seeks the shore for the purpose of giving birth to her young" (Sec. 297), and the statement made in the Pteport that the breeding females remain for several weeks on shore after bearing their young (Sec. 30). As the period of ' Poxtrp. 359. ~ ; , - Appendix to Ct\se of the United States, Vol. II. pp, U, 42, lOo, Inconsi.stencies of the Report. I :3 !; : it i.! Hi 'i eta. '■■'"■■ m Mi I'll m^'^ i: - ■!; »i.. ! i 1 III - ; rr;: 64 lIABliS OF TUE rUR-SEALS. Inconsistencies of gestatiop. is stated bv the Commissioners to be the report, about twelve months (Sec. 434), coition in the water would necessarily be four or even six weeks (Sec. 306) later than the arrival of cows at the Islands, which would necessitate the arrival of the cows by as many weeks later the follow- ing year, since they give birth to their young immediately upon landing (Sec. 30). col^^at^tii'e'wandJ*^ ^^ ^^^® frequency of pelagic coition be as great as alleged in the Report, the date of the arrival of the cows would be growing continually later and would be now much later than in former years. No proof is offered in the Reportonthis important point. In opposition thereto the United States Commissioners have appended to their report a table showing tlie arrival of the various classes of seals on the Islands,' and the United States herewith submit on the same question the further evidence of Maj. W. H. Williams, Special Treas- ury Agent in charge of the Pribilof Islands, who states that95 per cent of the cows had given birth to their young by July 12, 1891, showing the arrivals must have been at the usual time," and of Mr. Stanley -Brown, who arrived on tlie Islands on the 9th of June, 1892, and who states that some cows had arrived previous to that date.^ ' Case of the United States, p. 386. «Pos< p. 397. 3 Post p. 386. u MANAaKMKNT. GJ s nd- linost MANAGEMENT OF THE riilBILOF ISLANDS AS THE ALLEGKD CAUSE OF THE DECREASE OF THE ALASKAN SEAL HERD. The Britisli Commissioners at several places in .'f'"' J^^'^^'""! i iiuttt'd to be 11 their Eeport admit that the regnlations in force pe^'^'t- and the methods employed in taking seals en the Pribilof Islands are the best that could have been adopted, having been founded on the long expe- rience of the llussian Governn\ent after nearly a century of occupation (see Sees. 659, G7G). The Report further states that " from a tran- scendental point of view the hiethods proposed were appropriate, and even perfect, but in prac- tical execution, and as judged by the results of a series of years, they proved to be faulty and injurious " (Sec. GG2). It is, therefore, not the methods, butthemannerof their execution, which is the subject of criticism by the Commissioners. Other than this general charge of faulty execu- Fxpcssivc killing tion, the one variation from the llussian methods made by the United States which is disapproved of in the Report is the number of seals allowed to be taken (Sec. G59). In establishino- their assertion thatthenumber rrcof Imlstbclinu• =' tod to period 1870- of seals annually killed on the Islands was excess- i*<^o. ive, it is insisted by the United States that the Commissioners should be confined to the first decade of the lease of the Pribilof Islands to the Alaska Commercial Company (1871-1880), be- [316] F .!^; 11 -;f' Im ')' ■■■ti GG M.WAOKMKXT. !■ ■ 1 : ' i m- ..^ iMr ,-■'„* ~ V. ,1 ,. '.'hi'. ■ -■', 1 1 ^ • Admisiiion ns to period after deoidi'tl deerease. Proof imist be liiiii- cause pcluo-ic sealii)fj was then too iiisifjiiiticant tjd to period 187C- . i tp i i 18S0. to perceptibly affect seal life, and that any con- sideration of the manaii-ernent subsequent to the introduction of pelagic sealing, which is admit- ted to be a factor " tending towards decrease " (Sec. GO), is irrelevant to the question at issue, unlsss it can be shown that there was a suflBcient increase in the number of seals killed on the Islands, or sufficient changes in the methods employed in taking the quota, to materially affect and deplete the seal herd, even without the introduction of pelagic sealing. The United States admit that, after a decided decrease in the birth rate of the seal herd iiad been caused by pelagic sealing, the number allowed by the lease to be killed was more than the reduced herd could properly endure ; but they assert that any evil effects resulting from the manogeuientonthe Islands is directly charge- able to the conditions established by pelagic sealing. It was not until the year 1889 that thedecrease in the birth rate of the seal herd (which decrease had been augmented annually by an ever in- creasing fleet of pelagic sealers) became suffi- ciently evident among the young male portion of the herd toseriouslv attract the notice of and to alarm the Government agents on the Islands.' » Cas? of the United Stntox, p. 184. AN AM-KOI'-.l) CATSK OF DKCREASE. 1)/ 111 that voar fur the Hiot time tluMvc'lnlit of'skiiis .Aiiiiii-s:oii ns i,. ])oriud al'tor ilciiil d fell Ik'Iow the average o^' foimer years.' The tiecn'Hse. repdrt of the (tftieial in charge of the Ishinds resulted in an immediate reducti(Mi of the (jiKjta allowed by the Treasury Department at Wash- ington, and in a curtailment of the time allowed within which totakesuch ({uota.- Notwithstand- ing the endeavors of the United States to meet the new conditions created by pelagic sealing with restrictions upon slaughter, which were made stil! mote rigid in 1891, the herd con- tinued to become more and more depleted, and in 1892 a decrease appears over 1891, though the consensus of opinion of those on the Islands is that in the last year the n ale seals have increased to a limited extent.'' The United States, however, insist that flie Trrcievnn..yofM.ci. failure, if any. to take into account the " new- factor" (viz, pelagic sealing) is wholly irrelevant to the true issue, and they have presented testi- mony in relation to the manao-ement on the Islands for the purpose of showing, and which shows, that such management could not, under normal conditions, have caused a decrease in the Piibilof seal herd. ' Max lleilbroiiiu'i', yont p. 3G9 and tiibk' fufing. - Cnsc of the United States, p. 153. •' J. Stanley-B:'own, loxi p, 3S5. [81 G] f'2 f ! G8 MANAOKMENT. Faiiuro of Report The Repoi't ftiils to establish ti siiii^le Instanco to uliow clianpo of iimim«pnicnt after wliei'o the manaireiiifciit on the Islands or the 1880. Ec80iTation us to charges of fraud. methods employed thereon have been chani^ol since 1880 from the " appropriate and even per- fect " system adopted in 1870, or where the number of seals killed annually has been in- creased beyond the annual quota of the first ten years of the lease. The Government of the United States reserves to another portion of this Counter Case the re- peated and, as it conceives, very imjustifiable insinuations of the Commissioners of the malfea- sance by United States officers, of fraudulent practices of the Alaska Commercial Company when lessees, and of collusion, necessarily im- plied, by the London firm of C, M. Lampson & (Jompany ; only stating here, that all such evi- dent attempts to mislead the Tribunal of Arbi- tration and to obscure the true issue are un- founded in fact and unsupported by proof or evidence of any sort. All reference, therefore, to the management of the Pribilof Islands subsequent to the introduc- tion of pelagic sealing, when it became a factor in the decrease of the seal herd, the United States repeat, is irrelevant to the true issue — the cause of the present depleted condition of the Pribilof rookeries. AX ALLEGED CAUSK OF DKCRKASK. G9 The alleged excessive killin<'' of male seals Foinuifttion of I'lmrgo of oxcesiiivo must rest entirely on the proposition, which the killing. Report endeavors to establish, that, by means of this license to slaughter 100,000 young males on the Islands, the breeding males have become ao depleted as to be unable to fertilize the females, thus creating a decrease in the birth rate suffi- cient to account for the present condition of the Alaskan seal herd. To establish tins, the Com- missioners refer, among other things, to the re- port to the Treasury Department in 1875 of Captain Charles Bryant. This official did, as Captain Brjftnt as a witness for the Com- s';ated in the Report (Sec. 678), advise the Secre- mUsioners. tary of the Treasury, in view of his observations, to reduce the number of the quota to 85,000 skins ; but the true reason of this recommenda- tion is obscured in the Report by a collection of quotations from various writings, of which he is thg author, and by placing an erroneous inter- pretation on his language. The reasons for his report of 1875 are clearly Reasons for his re- shown by an examination of his testimony before a committee of the House of Representatives in 1876. Captain Bryant there makes the follow- ing statement : " In the season of 1868, before tlie prohibitory law was passed and enforced, numerous parties sealedon the Islands at will and took about two hundred and fifty thousand seals. port. « 'III I'll- \\ ti> ; "I'T ■Q. MANAGEMENT. ■ ' ■'?«!!' I" 4- Keasons for iiis re- Tliey killed mostlj all the product of 18G6-'67. In makinir our calculations for breedincj seals we did not take that loss into considenition, so that in 1872 73, when the crop of 18GG-'67 would have matured, we were a little short. These seals had been killed. P^or that reason, to ren- der the matter doubly sure, I recommended to the Secretary a diminution of 15,000 seals for the ten years ensuing. I do not, however, wish to be understood as sa3'ing that the seals are all decreasing — that the proportionate number of male seals of the proper age to take is decreasing. '■' Q. The females are increasing ? " A. Yes, sir ; and consequently the number of pups produced annually.'" In 1872 the seals taken were principally four and six years old and some of seven years old were killed (Sec. 812). This wtvs drawing from the same class of seals killed in 18G8," vvdiich would, had they been spared, have appeared on the rookeries as breeders in 1873 and the years thereafter. . . The follov/ing year (1873) the class of skinfs preferred were "three-year-olds" (Sec. 813), or those born in 1870; the so-called "crops" of 1 8G9 and 1870 would not have been fit to cro on ' Ho. Hop., Uth ConK., IstScss., Ropt. No. GSi, p. 00. - Appendix to Case of tlio United Stale.;, Vol. II, p. 7. f^'Hr W"'^ m AX ALLEGED CAUSE OF DECREASE. 71 the breediiio^ frrounds till 1875 or 1876, which Reasons for his rc- would correspond with Captain Bryant's state- ment that the decrease in male life ceased in 187G and breedinj^' male seals beg-an to increase to such an extent in 1877 that he affirmed that in two years (1879) the loss would be made good (Sec. 679). Yhis is further and fully ex- plained by the same witness in his deposition appended to tlie Case of the United States." The evidence presented in the Repoit, which nivbions of ivi- treats of the period from 1870 to 1880, consists (1) of statements to the effect that 100,000 or more skins could not be taken on the Islands without depleting the herd, and (2) of other statements or conclusions to the effect that the male seals, both breeding and iionbreeding, Imd decreased during the first decade of the lease of 1870. As to thetirst statements mentioned, it is in- irroioTnncy of n.o first division. si-^ted by the United States that it is entirely 'rreievant how many seals were taken en the Islands annually, unless it can be shown that the nmnber killed resulted in a dinunutiou of the normal number of the seal herd, or at least the male portion of it. The f-o-cuUed proof, how ever, on this point which the Report presents as UnfiiiriKwofshifp- to the Russian period ot occupation is so 'nam- poriod. ' Appendix to the Case of tlip United States, Vol. II, p. 7. I V, \t !l II » 72 MANAGEMENT. |l 'S Unfiiirncss as to festly Unfair thai, attention should be directed to Stat omenta as to ' . . Eu-siiin period. its misleaduig character, ihe Commissioners state that from 1787 to 1 80G the number of skins taken was 50,000 annually; from 1807 to 181G, 47,500 ; and from 1817 to 186(j, 25,000. The desire is to suggest the inference that the killing of 50,000 v/as excessive, the lieport givmg as u secondary reason for the evident decrease the "nearly promiscuous slaughter (for the first part of this period) of seals of both sexes and all ages." (Sec. 40.) The United State's contend that the "nearly promiscuous slaughter," mentioned as a se'-.- cl- ary cause, was the princij)a,l cause, and that : I y expression "for the first part of this period" is intentionally indefinite, though it appears from the Report that the killing of females was not prohibited until 1847 (Sec. 37, p. 8). The Report states that in 183Gan exceptionallyseverewinter caused a great mortality among the seals, so that only 4, 1 00 of all classes were observed on the rook- eries (Sec. 800), which reduced the birth rate for a number of years and necessaiily, also, the annual number of skins secured. The inclusion of this time of scarcity in all classes of seals in the period of 1834 to 1 8(50 is most misleading as to the question of how many mnle seals can be taken when the rookeries are in their normal AX ALLEIKD CAUSE OF DECItEASE. 73 condition. An examination of the Russian iloou- Tiicnmuberiikiiu-a from l«;o-lSGo. ments herewith submitted shows that from 1 3(50 to 18G5, inchisivG (when it may b^ assumed the rookeries had recoVv3red from the mortaUtv of 18.3G and the slaughter of female seals prior to 1847), the annual quota ranged from 45,000 to 70,000 on St. Paul Ishmd alone, and that the only I'oason why more were not taken was the plethoric condition of the Chinese, Russian, and American markets.' The other class of statements or conclusions Second division uf c'vidonce. advanced, to show that the breeding anci non- breeding seals decreased during the ten years following the leasing of the Pi-ibilof Islands in 1870, may bo divided into three heads, namely, (1) an alleged increased proportion of females to breeding males, (2) an alleged recognition by the lessees of the decrease of male seals, and (3) alleged os^erdriving and resort to new arras to obtain the quota. The first allegation is Comparisons of 1 1 ,. . • 1 , ,, 1 harems 1870 and based entu-eiy on comparisons between the early isoo irrekvuut. years of the lease of 1870 and the last two or three years of the same (1880-1891). The United States Insist that such comparisons are irrelevant, for, even if the breeding males were dlsproportionntely few during the latter years, it ' Poit pp. l'.)3 199. Bmn-oft's Alaska, p. 532: "In 1S51, 30,000 could be killed .nuually ut St. Paul Islau I alone, an.l in 18GI as miiny as 70,Oor>, witliont fi'.ir of exhausting the supply." > ■! \ 1 \ \: 'V- »=^TaRMmt,»Liii(tt.i)kll«WW! am Bm ■ 74 MAXAGK.MRXT. iskv: uienf Compavisoiis of is tlie result of a decreased birtli rate caused by liiiroiUM IS "(I and iSiio irrelevant. pelitgic seuHug'. Tlie United States, however, deny that liarems liave increased "from four to eight times" over their size in 1870--1874. (Sec. 54.) Tr^w ,'V;*"'''"'""*^^ Mr. Renry W. Elliott, who is relied on as an H. W. Llliott 3 stiite- •' ' authority in this matter by the Commissioners to show that the harems averaged from 5 to 20 cows in 1874 (Sec. 293), states, in the same pas- stige fronn^'hich the quotation used in the Report has been extracted, that there are " many in- stances where 45 or .OO females are n.nder the charge of one male," and he closes his sentenc(i by statiiig that the average given is not entirely satisfactory to hnnself. ' This curtailment of Mr. Elliott's statement is in flzo of iim-ems in July 1 9, 1892, Professor B. W. Evermann, of the United States Fish Commission, a well-known authority on subjects of natural hiscor}'-, counted the numiyer of bulls, cows, and pups on a section of Lukannon RookerV; St. Paul Island, and the result was as follows: l;] bulls, 90 cows, and 211 pups.- If each cow in a harem was repre- sented by a pup, the averatji-e number to a bull would be 15, certainly not an excessive number even according" to the Jleport. The Oonmiissioners also rely on a newspa|)er Aik'coa Mimmmy •' ' ^ of ,1 ivpo.-t i.v ir. w. extract, which pur])orts to be a summary of a Kiiiott in is'^ ', , * "4: 76 MAXAGEMKNT. I;.- -1 If f V Allogocl ro(Mgiii- tion of decrease by lessees. Alleged siimmvi-y vtdum'j III of tho Appciitlix to the CllSO of Greiit of n reporl. hv II. U . • • /t-« i- -r« rt -kt Kiiiott iiiisJo. Bntiiui (Parliumeiitnry Paper C — 0;3GS, No. 2, 1801, ]). GO) discloses the fact tliat this state- ment appears after the signature of Henry W. Elliott, and it can not, therefore, be construed as a portion of such report. Furthermore, how the Commissioners can question Mr. Elliott's power to compute the number of seals on the Islands, as they have done, and still rely at all on his computation as to the number of barren females needs explanation. The second mode by M-hich they endeavor to show a decrease in th.e seal herd prior to 1880 is by pointing' to an alleged recognition thereof on the p;irt of the lessees in the reduction made by them of their catch in 1875, and to an alleged lowering of the standard of weights of skins. 'J he Report proceeds as follows : " In the same year [1875] the number of skins obtained was considerably reduced in the face of a steady market and before the decline in prices of the two succeeding years " (Sec. 44). This state- ment is cltarly incorrect, as is shown by the references citi.-d.' Another allegation as errone- ous as the foregoing is contained ipi the state ' British Coiiirs. Kept, p. 132. Apjiendix to Cnse of the United States, A'ol. II, ))p. 508, 5K5. Table of teals taken on Tribilof Islam's for all purposes, poxt p. 427. .V- AX ALLKUEl) CAUSE OK DEC'REASK. 77 'I w merit of tlie Tieport tliat the stimdavd of skins was lowered from time to time, imply iiin^ an iiicreasino; scarcity of males (Sec. 094). In 1 870 Avoragowoi^iitsof " . , . AIask:ui catoli, 1870- the averao;e \veifi:ht of all the skins of the Alaska i^«'->- catch was 8 pounds, which remained about the average till 188G, the average; weight being in that year lO^j pounds ; from that time, coinci- dentall}^ with the increase of pelagic sealing, the weight dropped to 9| pounds in 183G, 8| pounds in 1887, 8|- pounds in 1888, and finally in 1889 to Tiinj pounds, tiie lowest standard ever reached.' The United States, therefore, deny the statements made in the Report as to the reduction of the " standard of weights" ([>age 119, C). Tlie Commissioners also rely upon a statement Tiie mimbcr of seals tiikon from alleged to have been made to them by Mr, Northeast Point. Daniel Webster that, 'a 1874 and 1875, from 35,000 to 36,000 sk! is were taken from North- east Point rookery and that, since 1879, from 29,0C0 to 18,000 skins only had been taken there, thus implyi?ig a large decrease in the seals resorting to this great rookery (Sec. G77). The annual killings on Northeast Point are combined in a table submitted herewith," which give? the numbers annually laken thereon and the percont- ' Max lleilbroiir.er. 2;o.v^ p. 300 and ttihio fncirg. » Tab'c of seals KilK'd on Northeast Point, pod p. -127. ' ■ \ '"I •Ji s'l i ■I ' H' i 1 '■ f 'ft't:^ .AfAXAOEMENT. m il 1 : !"■■ '-t . I ^'L' .«.,:. ■t?;v . ■ 'i ■* ■1 tii > m ik Tiip mnnixM- of age to tlic av1k>1(> iiMiiihrr killed on St. Tnul sen Is 1 11 lit' II from i ri i • i i • i • >• i Ko.'tii-eust roiiit. Isiuiid. iToin tins table it appears that m I 8/ .'5 20,009 senLs were taken, being oiA) j)er ceui of the whole number; in 1874, 34,526, or 37.5 per cent; in 1875, 35,113, or 39 percent; in 1888, 33,381, or 39.7 per cent; and in 1889, 28,794, or 33.9 ])er cent. The average percentage for the nineteen years during whicli tiie lease may be said to liave been in t)peration (sonic 3,400 only having been taken the first year under the same) is 31.4. The Commissioners give the number taken in 1889 as 15,070, claiming the same to be from official records, but the citation given is to a report to the House of liepresentatives printed in 1870 (Sec. 077). Evidently this is a clerical error, but it deprives the United States of the opportunity to examine the authority intended to be cited. Alleged resoi-fc to The Qucstion of driving in 1879 from areas, reserved ureas ill 1S79. before reserved and untouched, is used in the Report to show that the male seals had decreased to such an extent as to compel the resort to these hauling grounds. The Commissioners refer to this in the following words : " Whatever may have lieen the detailed history of the seal inter- ests on St. Paul in the intervening years, the fact that in 1879 it became necessarv for the first time to extend the area of driving, so as to in- AX AI.LKdKIt (Alsr. 01' DKCUlvVsK. T\) elude Zapadnio and Polavini ronkerics, oi- the Aiii3 Re{)()rt sliouldnotbe considered, in examinuig the (j^uestion as to the cause of the decrease of the seal herd. The ovordnviiis; ami f, i-' ^ ^ • ' ^ i i rodi'iviii^ subsociui'iit question or overdrivino' and redrivmg has already to isso imicvant. been fully treated of in the Case of the United States ;" it may be noted, however, that Mr. Elliott is qu(jted as stating that overdriving was first begun in 1879 (Sec. 714), which is the year mentioned in the erroneous statements, above referred to, as to the commencement of drivini>' from Polavina and Zapadnie. It is insisted by the United States that driving and redriving after the introduction of pelagic • sealing, if any occurred, are directly chargeable to the condition created by open -sea hunting. The United States, tl-ei'efore, deny that any Deniiii of decrease valid evidence has been advanced bv the Com- ' Appoudix to Case of tho United States, Vol. II, pp. 117-127. * Case of the United States, p. 158. •fwm ftO PELAGIC SKALING. Denial of cU'crinsc niissionevs sufllclent to estiihlisli that any portion prior to 1H80. oFtlie seal herd decreased prior to 1880, or that there was a paucity of nude hfe during' that period on the breeding grounds, or that the management and niethods in force on the Pribilof Islands have been a cause of decrease in the Alaskan seal herd. ! H^h ^h PELAGIC SEALING. Tho Report an That portion of the Report of the British Com- apology for pelagic *■ *■ scaling. mlssioiiers M'hich considers the effects of pelagic sealing upon the Alaskan herd is in the nature of an apology and an attempted j ustification, for the Commissioners specifically admit that pelagic sealing is indiscriminate (Sec. G33) and tends towards decrease (Sees. GO, 71). The apology rests upon three propositions which they endea - vor to establish by evidence principally obtained from interested parties at Victoria and which are herein treated in the order of their import- ance as recognized in the Report. 1. That the percentage of female seals in the pelagic catch is not large. The Report first cites in this connection so- called " evidence," alleged to have been obtained from Indian hunters at various points along the Northwest Coast (Sees. G35-G41), and in which there is a careful avoidance of names of inform- Tho Indian evi' dence submitted. •55! PEHCENTAOE OF COWH IN CATCH. 81 ant«. It is insisted by the United States that Thoiudiunevi- ■ (lencc submitted. such testimony is vahieless for tlie purpose of establishing any oonckision worthy to be relied upon in this controversy. The second class of testimony presented to Testimony of inter. •^ ' cfted jmrties submit- sustain the position of the Repor is obtained *^'''- from sworn statements of Canadian seolers, which the Commissioners admit are not " entirely un- tinctured by motives of personal interest " (Sec. G;34). These alleged statements of Indians, whose names are not made known, and of other witnesses, admitted to be subject to suspicion, are the sole foundation, so far as matters of ffict are concerned, for the defense by the British Commissioners of pelagic sealing. 'J'he largest percentage of females odmitted „ i'«i'<'"t"/e "f o -i t> ipiniiio3 ailmitti'U to by these "most experienced and intelligent*^'^*"''™' pelagic sealers " (Sec. 042) to have been taken by them along the Northwest Coast is fifty out of one hundred seals, and but three men make this admission (Sees. G44, 645, 646). The other witnesses quoted (fifteen in number) vary con- siderably in their opinions as to the number of females taken in a catch, the percentage alleged ranging from two and a half to over forty, the majority giving it as from twenty to tliirty (Sees. 644,645,646). It is difficult to understand how statements in- •' consistent with tlie these statements can be harmonized with the de- Kepoi-t. [316] G 'i 'M 4 IMAGE EVALUATION TEST TARGET (MT-3) /. 1.0 I.I 1.25 145 MR ^ (5 "'"^^ lull - lilH II '■" 116 2,2 .^ i 40 2.0 1.8 1.4 1.6 6' #1 w^^i '/ Photographic Sciences Corporation I., WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 <" c^^ 6^ I, ■I 82 PELAGIC SEALING. '''if? t 8 If m statements iu- pleted condltioiiof the male life of thePribilof seal consistont with the i-i-r> i-ii Beport. herd, SO often alleged in the Heport, and with the statement that " the persistent killing of young males has led of late years to the existence of a very large surplus of females, and that, there- fore, the proportion of females to the whole num- ber of seals, whether at sea or ashore, is, at the present time, according to the information obtained by us, quite abnormal " (Sec. 635). As this information last referred to has evidently not been published by the Commissioners in connec- tion with their discussion of pelagic sealing, un- less it is embodied in the statements obtained at "a conference held with a number of representa- tive pelagic sealers" (Sec. 648), at which con- ference " no degree of reticence was shown in answering direct questions on all points in- volved " (Sec. G18), it is impossible to draw any conclusions therefrom, except that this informa- tion is in direct contradiction to the testimony of the witnesses named in the Report. In view of the admitted untrustworthiness of the evidence advanced, and in view of the con- clusive proof presented in the Case of the United States on this question, the United States deny that the percentage of females in the pelagic catch has been exaggerated in their case, and present herewith as corroborative evidence on The Btatcmcnts in the Report denied. 1 PERCENTAaE OF COWS IN CATCH. 83 1 females. this subject the r'^port of Capt. C. L. Hooper, Cupt. Hooper s in- TT o -r» T»«- I • 1 • T> • o 1 • vestiRalioDi., suimncr U. o. K. M., who cruised in Jiermg feea duriug of is92. the summer of 1892 and under the direction of the Governmeutof the United States madeaseries of systematic observations as to the distribution and classes of seals found in those waters, for which purpose he took a limited number of seals at sea.* The result of his observations and experiments was that, of 41 seals shot and secured, 29 Catchos of vcsscig seized by Eussiii , were females. Mr. Malowanski, the aeent ofi«92, sto per Lent. the Russian Sealskin Company on the Com- mander Islands, examined about 2,700 skins taken from sealing schooners, seized in the neighborhood of those Islands by the Russian authorities during the summer of 1892, and found that over 90 per cent were the skins of female seals.' This is also veritied by Mr. Grebnitzki,' the Russian official in charge of the Commander Islands, and by an examination of over 1,000 of the same skins specially made in London.* Tiie depositions of the expert furrier Mr. Behlow, who has examined the catches of a number of sealing schooners entered at the port of San Francisco during the summer and fall of 1892, ' RciMrt of Capt. C. L. Hooper, posl table fucirg p. 210. - John Miilowanski, post p. 374. '. ^ N. A. Grebnitzki, post p. 3CG. * statement by Ok W. Martin k Sons, post p. 117. [31 G] u 2 r II m j Examination of pelagic catclics, 1 HO:.', &4 PELAGIC SEALING-. m 1^ ll ih . II k'*. i^ ■ fe'S ff Examination of confirm the fact that a very hirge proportion of pelagic caU-hes, 1892. the pelagic catches consist of female seals. i'poi)oriion of Thls lai ge ratio of females taken at sea does fcmttlos tiiki n ot sea t «« " ^ i ^ ^ c i -n m -i /» prior to 1870. not diner irom that observed before the Pribilot Islands were leased. In the official report on the seal question made by a special agent of the United States on November 30, 1809, the following appears : " Nearly all the 5,000 seals annually caught on the British Columbian coast are pregnant females '"' ^'' ■'"," ^ and Capt. Bryant, in 1870, also states that "formerly in March and April the natives of Puget Sound took large numbers of pregnant females." ^ 2. That pelagic sealing in Bering Sea is not asde- structive to seal life as pelagic sealing in the North Pacijic. There is an evident attempt on the part of the British Commissioners to establish that the principal harm to the seal herd resulting from pelagic sealing is inflicted during the herd's Grou uis for the migration in the Pacific Ocean. This is based, Eeport d statemeuti<. .' ., . , primarily, on the assumption that no gravid females are taken in Bering Sea (Sec. 648), and that the alleged occasional deaths of " a few ' C. J. Behlowr, post pp. 353-358. « Ex. Doc. No. 32, 4l8t Cong., 2d Sees., p. 39. •' Bull. 2, Mu9. Conip. Zoiilogv, p. 88. !if ^|. IN BERING SEA AND NORTH rACIFK' 85 females in milk " (Sec. 649) does not destroy Groundf. for tu Report's gtiitemcnts. the offspring of such females (Sees. 355, 356). It will be seen, on an examination of the state- ments of the pelagic sealers quoted in the Report (Sees. 645, 646), that but eight refer to the num- ber of females taken in Bering Sea, and these give percentages whicli are practically the same as those given for the catch in the North Pacific. It is, therefore, conceded that the destruction of female life in Bering Sea is as great as along the Northwest Coast. The distinction is made, how- Pi-pgnnnt femnies. ever, that no gravid females are taken in Bering Sea. It must be recollected, in this connection, that the admitted period of gestation of the fur- seal is "nearly twelve months" (Sec. 434), and that, therefore, an adult female which has been fertilized is pregnant at all times when found in the water, and certainly so if the fact alleged in the Report, that the female remains on the rookeries from four to six weeks after giving birth to her young, could be established (Sees. 30G, 307). The designed implication that very few nursing Nursing females. female seals are taken by pelagic sealers (Sec. 649) is based on pure assumption, no evidence capt. Hooper's in- being advanced to support it. Capt. Hooper, ^*' '^ '""''' already referred to, states that of 29 female seals taken by him in 1892 in Bering Sea, 22 were I- 11 M ill ••^ M '* 86 PELAGIC SEALING. r01 &'■ 'ir * p.; m ■'■'fi . Examination of nui'sing females;' and Mr.C.H.Townsend,of the wikI, i8'.>2. U.S. Fish Commission, the well-known naturalist who accompanied him, includes in his deposition a photograph of two half-skinned cows taken August 2, 1892, 175 miles from the Pribilof Is- lands," exhibitingthe distended mammary glands, "which in all cases were filled with milk." * That the pups of these nursing cows are de- Ijendent solely upon their mothers for nourish- ment has already been discussed both in the Case of the United States and in this Counter Case.'* The Commissioners, to support their position, endeavor to explain away the obvious inference derivable from the fact that a large number of dead pup-seals were observed by them on the Pribilof rookeries during their cursory examina- tion of seal life on the Islands. It is evident- from the eflPorts made and theories advanced to explain this mortality, that the Commissioners considered the presence of these bodies prima facie evidence of the fact they endeavour to dis- prove (Secp. 344-356). These officials have, through some strange circumstance, been led into the belief that they were the first to Hoad pups on the rookcvii'?'. ,V*ii'',l.'i •i,X ' Capl. Hooper's report, post table facing p. 210, ■ C. H. Townsend, pout p. 304. =• Anif, p. 53. IN BERING SEA AND NORTH PACIFIC. 87 o])serve tliiH mortality uinoinif the pups on the Wciui i>up» on ih.' rookeries (Sec. 8;}), from wliich belief they dviiw the inference that " the death of so many young seals on the Islands in 1891 was wholly excep- tional and unprecedented" (Sec. 355). The dep- ositions, however, of 'many witnesses appended to the Case of the United States show not only that dead pups had been observed on the rook- eries as early as 1885, but that the numbers had after that year annually increased.' Mr. J. Stanley-Brcwn testifies that he had already seeji and noted the dead bodies before the Commis- sioners arrived at the Islands in 1891, and that the cause of death had been fully discussed by those on the Islands." The same opinion as to the cause of this mor- cmisc :f dcaili. talitv, which " in no instance was ^'' ^'' * at first voluntarily advanced " (Sec. 83) to the Com- missioners, namely, " the killing of the mother at sea " (Sec. S3), existed for several years before the British officials examined the Pribilof rook- eries.^ It is unfortunate for the position taken by the Commissioners, to the effect that the mor- tality was unusual and that the cause assigned ' Appendix to Case of the United States, Vol. II, pp. 32, 39, 51, 71, etc. ■ ■W^ - Appendix to Case of tlio United States, Vol. U, p. 10. =' Appendix to Case of United State*, Vol. II, pp. 32, 30, 51, 71, etc. . ,,. . ; . '.'...', ... V ..,, ■ (,i m Xm ■^Iffif- ^:*-*f>;i 88 PELACHC SEALING. Wii' Cause of death, by tliose on the Islands a day or two after the investigations by these officials was a novel sug- gestion, that, notwithstanding the "care "asserted by them to have been taken to complete their per- sonal knowledge of all documentary evidence obtainable, '* including the previous ollicial cor- respondence " (Sec. 8), they should have over- Mr. Blaine's nolo looked a note from Mr. Blaine to Sir J. Paunce- uf Maroh 1, 1800. fote, dated March 1, 1890 (Parliamentary Paper [C, 6131], 1890, p. 424), in which were inclosed extracts from an official report made to the House of Representatives in 1889, which document is so often quoted in the British Report. Among these extracts appears the following statement made by Dr. H. H. Mclntyre {ibici^., p. 430) : " The marauding [pelagic sealing] was exten- sively carried on in 1885 and 188G, and in pre- vious years, and of course the pups that would have been born from cows that were killed in 1885, or that perished through the loss of their mothers during that year, would have come upon the islands in 1888. * * "*• I would say, fur- ther, that if the cows are killed late in the season, say in August, after the pups are born, the latter are left upon the island deprived of the mother's care, and, of course, pensh. The effect is the same whether the cows are killed before or after the pups are dropped. The young perish in either }[ TN BKRTXa >(E.\ AND NORTH PACrFiC R9 case " (ibid., p. 430). At another place, nuotincf Mr. BUine's not.- from the testimony of Jacob H. Moulton, the follow In^ appears : " Q. When a female is nurs- inof her young and goes out for food and is killed or wounded, that results also in the death of her young? — A. Yes, sir" {ibid., p. 432). This explanation of the cause of the death of Causes of death ai- legcd in the Beport. pup-seals is not recognized by the Report, except to contradict it. In place of it four specific causes are advanced, " to which the mortality noted may be attributed with greatest probability " (Sec. 356) : First, the killing of the mothers by taking them in " drives " from the borders of the breed- ing grounds ; second, an epidemic disease ; third, crushing of the pups in stampedes ; and, fourth, raids on the rookeries (Sec. 356, a, b, c, d). The first cause alleged, namely, the driving and . i- Driving and kiii- *=• ' •' ' ° ing of the mothew killing of the mothers, is unsupported by any d»»cuM«d. proof whatsoever, and will not account for the deaths on Tolstoi Rookery, where the greatest number of bodies were seen by the Commission- ers (Sec. 350), because no '' drive " was had in 1891 within a quarter of a mile of that rookery.' The second cause alleged, an epidemic disease, 2. An epido ^ic. is mere hypothesis, and has already been treated in the Case of the United States.^ • J. Stanley-Brown, poll p. 888 ; W. II. Williams, pott p. 399. ■ Case of tbo United States, p. 216. ' S I ■ •m^ vo PELAGIC SEALING. :<. Pup*c-riielie(l in DtmJipwWR. li w .U i 4. Possible raids Qs a cause discussed. The third alleged cause, the crushliiij of the pups in stampedes, has no evidence to support it. The only instance of even a supposed stampede en any breeding grounds is mentioned in the Report in the following words : " During the summer of 1891 a panic was caused on the Reef Rookery of St. Paul Island by the drifting over it of the smoke from a steamer which was en- tering the anchorage there " (Sec. 332). The Commissioners do not specify the information upon which this statement is made, and Mr. J. Stanley-Brown testifies that no one saw such an alleged stampede.' The difficulty and practical impossibility to cause a stampede or create a panic in a breeding ground are clearly shown by Dr. H. H. Mclntyre,- Mr. J. Stanley-Brown,' and others conversant with seal life.' If a stampede ever did take place among the breeding seals, no evidence has been advanced to prove it. The fourth and last cause, which is stated to be " within the bounds of probabilitv " (Sec. 356, p. 64), is that the female seals were killed by raiders, or by a stampede resulting from a raid. The Report offers no evidence whatever of such » Poat p. 388. 'Po» ! y _j r 92 rrr, AGic sealixo. Bi m j!fk;^ 'ii « ' 1, ^ t t ■> 1 Groat dccwMo of followinff statements. Mr. Stanley-Brown, who •load pupt in 1892 ° . ta j was also on the Islands in 1891, says : " Dead pups were as conspicuous by their infrequency in 1892 as by their numerousness in 1891."* Col. Joseph Murray, who has been Assistant Treasury Atjent on the Pribilof Islands from 1H89 to the present time, states : " I went over the rookeries carefully in 1892 looking for dead pups. The largest number on any rookery occurred on Tolstoi; but here, as on the rookeries generally, but few of them were to be seen, as compared with last year. This was the first time in my four seasons' residence on the Islands that the number of dead pups was not greater than could be accounted for by natural causes."' And Mr. A. W. Lavender, the Government agent in charge of St. George Island, made an actual count of the dead pups on the rookeries of that Island, August 29, 1892. He found on the five rookeries 41 dead pups, "all of which were near the water.'" Professor Evermann, the expert naturalist of the Fish Commission, estimates the number of dead pups on Polavina ' " Rookery in 1892 at less than 250, and states that there were more dead pups here than on all the other rookeries combined.* ' J. Stanley-Brown, post p. 388. " A. W. Lavender, poai p. 26.1. ^ Joseph Murray, poit p. 378. * B. W. Erermann, post p. 271. 11 IN BERING 8EA AND NORTH PACIFIC. 93 Tn consequence of the zenlous and efficient Cmwo of dccrcnw enorts ot the naval veHsela cliaifjed with the pro- tection of the seal herd and the enforcement of t\\e3lodiis Vivendi, few sealing vessels enteredthe eastern half of Bering Sea in 1892, and those waters were practically free from ojien-aea hunters. If the cause of the mortality of 181)1 among the pups was any of those advanced by the Report, it is a rer.uirkable and, for the opinion of the Commissit)i;ers, an unfortunate circumstance that wi^h the decrease of sealing' in Bering Sea dead pup sea h have decreased likewise, Ontheotherb;uiu,the increase of seal- inuroaipd mor- mgin Asiatic watersauouttlieCommander Islands roukcrie*. has been followed bv a lari>e increase of deaths among young seals on the llussian rookeries.' The destructiveness of the Bering Sea catch, Comi-araiiyo buv* as compared with that in the North Pacific, is ^'»"'''" ^•«tii'«-»- further shov^n by the relative sizes of such catches. A. compilation made from the state- ments of yearly catches of tiie Victoria sealing fleet, attached to the Report of the British CWi- missioners (pp. 205-21 2), shows that the average catch per vessel for three years (1889-18!)1) along the Northwest Coast was 587, while the Bering Sea catch for the same period of time was 783.'* It is impossible to compute accurately the ' John MaIow<\nBki, post p. 374 ; N. A. Qrcbnitski, post p. 360. ^ Tables complied from Comuiissionun' tables, post p, 411, \m III \ I ! 1! ,H s .T'h 94 rELAaiC SEALING. { III „T 1 iV. 5*; m if p}, Comparative sizes ratio botweeii the North Pacific and Bering Sea of Bering Sea and ^ ^ Pacific catohes. catches for a longer period, as prior to 1889 the Bering Sea catch included a portion of the catch in the North Pacific (p. 211, note). , \;...;r BeH^^/eard^Paci! The Report, in treating of pelagic sealing fie compared. along the coast, states that the season extends from February to June, inclusive, and that in Ber- ing Sea it includes July and August (Sees. 132, 212, 308, 582). It can be assumed, therefore, from the statements in the Report, that the coast catchoccupies four and one-half months in taking and the Bering Sea catch but two months. On the authority of these statements above noted a table has been compiled, which shows the aver- Arcrago daily anrg daily catch per vessel for three years (1889- ralch in Benng Sea o ,/ t. ./ \ and Pacific compared. igQl) aloug the coast to havc been 4.3 and in Bering Sea 13.' This includes 1891, when the enforcement of the Modus Vivendi seriously cur- tailed the season in Bering Sea. The United States, therefore, contend that pelagic sealing in Bering Sea is at least three times as destructive to seal life as that along the Northwest Coast. 3. That the waste of lije resxdting from pelagic sealing is insignijicant. This third proposition is advanced in the Report in defense of the method employed in ' Table compiled from Commissioners' tables, post p. 111. ^j->-A RESULTINa WASTE OF LIFE. 95; taking seals in tlie open sea : and the Comniis- Waste of life insig- nificant. sioners, in order to establish their position, col- lect and quote the statements of a number of persons who disagree ^v^ith the proposition which the Benort endeavors to substantiate (Sees. 613, G14). These statements are all characterized as being made bj persons " presumably interested in,orengaged in protecting the breedingislands, but without personal experience in the matter " (Sec. 615). The Report then proceeds to array ,J,'-,, f;;^-! against these opinions a number of statements i'"""*' *• for the most part made by persons directly interested in pelagic sealing," but which, it is al- leged, *' must be considered as of a much higher order of accuracy " (Sec. 616) than the former statements. These interested parties thus quoted in the Report (Sees. 616-621) state that the iJ',;;'''^S,°^*°''^* Indians lose of the seals killed by them " very few" (Sec. 618), "at most, a few" (Sec. 619), and " one per cent " (Sees. 617, 621) ; the white ^i.^'XntfrV"'* ^^ hunters, on the other hand, are credited with losing from 3 to 6 per cent (Sees. 616-621). The Commissioners then present a number of state- ments (Sees, 623-626) collected from inexpe- rienced individuals, which are open to the same criticisms as the adverse statements first quoted in the Report. - !« m ■ ti *" 1"' - I 1) ■f< 96 PELAGIC SEALING. m m m: J ' 'ml •II 6i :1 i: 'i* statements. Tabulated state- An endeavoi' is then made " to^ elucidate the menta of white bun- **"• question " under consideration by tabulating a number of statements made by white hunters and Indians, some of which are supported by their depositions and others not. " The results of this method of treatment" showthat thewhite hunters affirm that tiiey lose but 4 per cent of the seals they kill, while the Indians give their Inconsistencies of loss as 8 per Cent (Sec. f>27). The table en- titled " White Hunters " (p. 107) is averaged, whilethe tableentitled "Indian Hunters "(p. 108) is not, for the obvious reason that these Indians (Sec. G27) appear to have lost twice as many seals as the whites, which is in direct contradic- tion of the statements quoted in the Report, where the witnesses speak of both classes of hunters (Sees. 616-621). If the Indian state- ments are to be accepted that 8 out of 100 seals killed by them are lost, and also the statements of Captains Warren, Petit, and others (Sees. 616-621) that the white hunters lost five times as many as Indian hunters, then the former are admitted to lose at least 40 per cent of the seals they kill. It is difficult to harmonize this con- clusion with the table entitled "White Hunters" (p. 107), and the evidence thus presented is so contradictory that it is hard to see how any con- clusions could have been reached by the Com- missioners. $ RESULTING WASTE OF LIFE. 9t) r- The table entitled " White Hunters "is made Souross of "White _ , - . . Hunters " tible. up irom the statements oi sixteen witnesses; five of these (Nos. 1, 7, 20, 2G, and 27, p. 107) state specifically that the loss of seals they refer to are seals lost hy sinking ; six others, examined at the same time as the former witnesses, do not state what they mean by " seals lost," but it is to be presumed their meaning is the same ; the statements of three others whose evidence " was personally obtained " can not be examined on this point, as such statements have not been published ; Abel Douglass's ratio of loss is given in the table without reference to where it was obtained, so that what he means by " seals lost " is impossible to determine ; the one remaining hunter used in the compilation of the table (William Fewing) is the only one who definitely, or impliedly, states that " seals lost " refers to those escaping as well as to those that sink, and this is particularly noted in the table under " Remarks." It can be fairly assumed, therefore, that this Table ouiy give.-* *' sea's lost by sinking. table only represents the seals lost by sinking. The whole question, so important to this contro- versy, as to how many seals are lost by wound- ing is summed up in the vague admission, that " a certain proportion of the seals shot of course escape" (Sec. 628), and is dismissed by calculat- [316] H i 1 >; n 1 i \ 1^ II I II 1.1 , ; 1 'f: '■Mi u lit ( ' /> ■(<'' St I Si8 PELAGIC SEALING. Seals lost wounding. labic only gives i or- the number of encysted bullets found in seals lost by sinking. -' _ male seals killed on the Islands in 1890, showing an average of one bullet to 280 seals killed (Sec. 628). The notion that the carcass of eveiy seal killed on the Islands is searched for encysted bullets is sufficiently absurd, but it st'ems to be assumed in the reasoning^ of the Commissioners, ^y The necessarily large percentage of seals which lose their lives by wounding is shown by Mr. Townsend in his account of his experience as a pelagic hunter.' He states that " many times the animal is wounded sufficiently to get out of reach of the hunter before it dies;"' and, again, "it is from the instantly killed the seals are secured ; the wounded animal uses its death struggle to get out of reach."' It is evident how much this class of "seals lost" must outnumber those wh'i jh, killed outright, sink before they can be secui 1 ;^ and yet the Comniissioners have, presumably through oversight, ignored this important factor of waste of life and have dealt solely with the seals which pelagic hunters lose by the sinking of the carcass. 1 Pout p. 395. "' * ■"' ' See also reports of Capt. C. L. Hooper, post pp. 20S-219. M' If' * J ^: EESULTIXG WASTE OF LIFE. 99 The United States, having reviewed these tiu' baao* for iiie . apology insiiflicifiit. three propositions set lorth in the Report, namely, (1) that the percentage of female seals in the pelagic catch is not large, (2) that pelagic sealing in Bering Sea is not as destructive to seal life as in the North Pacific, and (3) that the waste of life resulting from pelagic sealing is insignificant, deny that any one of these grounds for the Commissioners' apology have been, or can be, established. K'.r.i ' ijf m ]\4 ■nr sijsi rt(7-?. U *• i ,'■, ■ iiit ■:-!i ■ ■' . 'V- >,.;■,,'. ■i'^\;i\ •■ ' I'l.-; ''-J ttirM [316] >v ), '4 ,t;^i H 2 i^''-'' :•.' '^^i h M f\-'. ml w< ^ 1. .'i ^ $ I \m M- fCHi 1 ll i' •1 i i 3: t*t " theory. HATTERS UPON WHICH THE REPORT BELIES TO ESTABLISH CONCLUSIONS ADVANCED THEBEIN AND TO FOBHULATE THE REOXTLATIONS RECOU- KENDED, WHICH HATTERS HAVE NOT BEEN DEALT WITH IN THE CASE OF THE UNITED STATES. HABITS OF THE FUR-SEALS. 1. That the Alaskan sea herd has a defined winter habitat. The Commissioners have advanced a most extraordinary theory as to the life history of the Alaskan sea herd. It is presented in the The " wiiitov luibi- following words : " Tlie fur-seal of the North Pacific may thus be said, in each case [referring also to the Commander herd], to have two habitats or homes between which it migrates, both equally necessary to its existence under present circumstances, the one frequented in summer, the other during the winter " (Sec. 28). Again, the Report stutes that the portion of sea lying off the West Coast, between the 56th and 46th parallels of north latitude, which limits include the whole length of the British Colum- bian coast, " is the winter hahitat of the fur-seal of the eastern side of the North Pacific " (Sec. 192, p. 31), and that Bering Sea may be named " their summer hahitat " (Sec. 192, p. 31). w ^i WINTER UABITAT TUEOKY. 101 This theoretical proposition of an animal pos- object of propos- iiig this theory. sessnig two homes is contrary to what lias been observed in respect to the habits of animals in general, and is advanced for the sole purpose of establishing a property interest in the Alaskan seal herd, resulting from the alleged presence of seals for several months in the waters con- tiguous to Vancouver Island. This object is shown from the following statement in the Report : " This independent native hunting [by the Indians of British (Jolumbia] is undoubtedly n. primitive vested interest of the coast tribes, and its character in this respect is strengthened by the fact, now made clear, that the winter home of the fur-seal lies along, and is adjacent to, the part of the coast which these seal-hunt- ing tribes inhabit'' (Sec. 113). An examination of the evidence (if statements tlc bulls do not resort to the " winter made by the Commissioners without giving the habitat." names of their informants can be so called) on which this remarkable proposition is tidvanced shows an important fact, which seems to have been entirely overlooked by the Commissioners. It is, that " the full-grown males, known as * beachmasters ' or ' seacatchie,' have seldom or never been reported to the south of the 50th parallel" (Sec. 193). It is evident that the Com- missioners never heard of a bull seal below that >' "^ 'rm i 1 •■■'. :•''!; m^ (.1 i m 102 HABITS OF THE FUR-SEALS. Thf buih do not parallel, nor do they anywhere state that they resort to the " idnter bnhiiat:' ever heard of a full-grown male below the 56th parallel, the assumed northern limit of the winter habitat (Sec. 192, p. 31) which they have created, and Capt. Hooper particularly states that bulls are seldom seen below Baranoff Island, the lower extremity of which is above the said parallel.^ This southern "home" is, therefore, according to the Report, resorted to by but a portion of the seal herd ; and that essential part of all animal life, the virile male, has, as is practically admitted, no home but the Pribilof Islands. The new and peculiar habitat alleged by the Commissioners is, therefore, only the winter resort of adult females and the young of both sexes, the remainder of the herd being confined to one home, the Pribilof Islands. It is, however, denied by the United States that the seals, during any portion of their migra- tion, can be said to remain within any limits, such as are assumed in the Report, or that sufficient data have been produced, of any sort whatsoever, to warrant the construction of Chart II (facing p. 150), especially the area to the right of such chart marked in a blue color, which is stated to represent the "winter habitat " of the fur-seal. ' Appendix to Case of the United States, Vol. I, p. 504. The data insufil dent to establish. WINTER HABITAT THEORY. 103 Cant. Kelley, one of the witnesses whose testi- Testimony in op- poBiHon. mony is submitted with the Keport (p. 21 9), states that he has sealed south of Cape Flattery "and has I'ollowed the sealsall aloniif the coasts of Brit- ish Columbia to Bering Sea"(p. 219, Question 3). Capt. Petit also makes the same statement (p. 220, Question 5). It is evident from these state- ments that sealing below the area termed "winter habitat" in the Report was a matter of common occurrence, and not unusual, as would be inferred from the chart heretofore referred to. Tbis is also supported by the statement of every witness whose deposition is submitted with the Report and who was questioned on this point (pp. 231, 237). ' '^ • ■'■■ '■ ■ '^ A quantity of testimony may also be found in tbeCaseof the United States proving that sealing begins off the Californian coast. ^ The Commis- sioners state that "it would appear no large catcheshave been recorded south of the Columbia River, and much of what has been classed in the returns as 'south coast catch ' has been obtained oft' the entrance of the Straits of Fuca " (Sec. 190). This statement is entirely unsupported by evidence of any sort, and seems to have been ad- vanced for the sole purpose of establishing the "winter habitat "theory. It may also be noted in ' Appendix to Case of the United States, Vol. II,'' pp. 330, 331, 344, 346, etc. ill \\ :.%■'. m B 104 UABITS OF TUE FURSEALS. i\i ^. s,i M ym M I'i SuuIh scattered during winter months. Soais followed thls Connection tliat both Capt. Kelley aiul Cant. along VancouTer i j i iKiand. Petit, above mentioned, state that they liave followed tho seals "along" the coa-st of British Colun)bia, which is evidence of the fact that the seal herd was moving northward when hunted off Vancouver Island, The distribution of the Alaskan seal lierd \a much more scattered during the winter months than is implied by the Report, and the rangv) of portions of the herd is much farther south and west than appears on the Commissioners* chart of migration. Capt. Hooper, R. M., who ex- tended his observations of 1892 in Bering Sea into September and continued his investigation of seal life and the migration of the herd until some time in November, states : " Those that leave [the Pribilof Islands] earliest go farthest south, arriving on the coast of California, and those leaving later reach the coast further up. # it * They appear at about the same time off a long line of coast, reaching from California to Washington. When they are so found they are known always to be moving northward up the coast." ^ This is also more fully treated in his report of November 21, 1892.^ Capt. Walter H. Ferguson, who has follov/ed ' C. L. Hooper, post p. 370. " Report of Capt. Hooper, Novembar 21, \fiQ2,poat p. 223. WINTER HABITAT TIIKORV. 105 the sea as a profession for twenty years, and Si-nii foumi in int. who made a careful investigation for six years i"-^v. of the winter resorts of the Ahiskan seiils for the purposeof hunting them during that season, says : "All reports tend to show there nuist be an im- mense feeding ground between latitude 40" and 42° north and extending from longitude 172" west to 135° west. * '"' * The reports of these vessels all show for the months of Novem- ber, December and January, large bodies of fur- seal in this locality." ^ In a volume entitled " List of Reported Dangers in the North Pacific Ocean," compiled by the United States Hydro- graphic Office and published in 1871, mention is made of an area about 40° north latitude and 150° to 151° west longitude where the sea swarmed with seals. " It is evident, therefore, that the limited range of the fur-seal during its migration, as depicted by the Commissioners, is erroneous. From thefurther data collected and mentioned ^'i^"' migration chart prcriented with above a new migration chart nas been cun- Countir cnsc. structed, correcting and modifying the one sub- mitted with the Case of the United States. The attention of the Tribunal of Arbitration is here- with directed to this chart, which the United ' Walter H. Ferguson, posi p. 362. = Post p. 288. 11 MilV;- ill Its 'm 'Am ' IOC) HABITS OP THE FURSEAL«. m\ m N'l.w inicratioii f^^j^tea insifit is more accurate and baaed on fuller clmrt prenfiiti'il with CounttT Ciwt". (j.^ta than tlie chart contained in the Report. ' 2. That the Alaskan seal licnl has changal its habits as a result of disturbance on the breed - iny islands and ofj>elagic seaVuij. incroa:.o,i poiagie i^^\ ^'j^q fl^.^^. assertion advanced by thelleport nature allogccl. \ / J i under this liead is that the seals, for the reasons above stilted., have become more pelagic in their nature (Sees. 44, 85, 86). , , ., This assumption is resorted to, as it aj)pears, to show that land is not a necessity to the fur- seal and in order to hnrmonize the sworn state- ments of the pelag sealers appended to the Report, that at sea tiio seals have not decreased, with the acknowledged decrease on the Islands. To support this proposition the evidence of these interested sealers is advanced to show that .here has been no decrease at se. similar to the de- crease on the Islands, but rather a possible increase (Sees. 87, 89, 1)4, 402). At the same time it is asserted (Sec. 281) that no " stagey" "Stagey" seals seals are taken at sea, that the " stagey" period taken at sea. , i • i i • i i on the rookeries lasts about six weeks, and that this period of hair shedding is caused ' by pro- longed resort to land. All seals must at some ' Chart of migration, Portfolio of maps and charts, appended to the Counter Cose of the United States. ALLKOI'I) ("If AN'OKS. 10; BOll I- period each year aliecl their hair, and it is a fact "Stngpy that many taken in the Wi;,ter are "stn^-ey, tlie cause alk'j^ed hy the Report hein<;' uiKhMil)te(lly the true one. A seal must, thcn-etbro, of necessity be on the Tshmds each year at some period, and it is insisted by the United States that observa- tions on tiie rookeries and liauUni;- grounds are the only criterion of the numerical condition of the seal herd. The Commissioners also present a table giving- tmc of itwrnur ciitch ])i'r l);wt Mini the average catch per man and per boat to show ii^r niun. that the nmnber taken respoctively from year to year has notmateriallychangsd, notwithstanding the continual decrease (Sec. 401), p. 74). This compilation begins with 1887 and includes 1891. The years 1885 and 1886 are not used, for a reason which becomes obvious when the statistics Why luinigps n.i- m the Report are exammed, namely, the average ihihI. per man in 1885 was 127 seals, or G8 more than in any year given in the table, and in 188G, 77 seals, or 1 8 more than the highest number in any following year. In the year 1886 the average per boat was 241, or nearly one-third more than Such nvcmges of in any year thereafter." It must also be recol- ' Charles Bohlow, post p. 357 ; C. W. Prciss, post p. .384 ; Walter E. Matin, jio.it p. 376; see, also, title-page of London catalogue of Bales, post p. 412. ' These averages are taken from the tables of catches transmitted with the Report, pp. 209, 210. n IF- \m m 'M i^i^ 108 HABITS OP THE FUR-SEAL3. fl t ■ ^ < ■M Such averages of lected ill Considering this question that the seal- no value. • • i i i i ing captains have each year become more and more familiar with the migration route of the seals in the North Pacific and their feediug grounds in Bering Sea, which naturally tends to increase annually the catches in these localities; and it is, therefore, only by tne comparison of the catches taken in the older huntino; areas, with which pelagic sealers have been familiar for twelve or fifteen years, that any evidence of value can be obtained, -^vcrogo per boat For this purpose a table has been prepared in " spring catch," , . . , 18SG-1891. from the Commissioners' tables, giving the aver- age per boat for the " spring catch," whicli is obtained in and about the alleged " winter habitat " of the fur-seal. As there is only one hunter to a boat, the average per man is of no value. This table shows an average of 118 soals per boat in 1886, and a constant decrease each following year until in 1891 it was but 15^.* The United States deny, therefore, in view of evidence already presented in their Case^ and the facts above stated, that the seals have not de- creased at sea in a like ratio to that observed on the Islands. ' Table of average catch per vessel and per boat, posi p. -ill, • Case of the United States, p. 1G9. ALLEGED CHANGES. 109 The Commissioners also assert that the seals independi-nt peiu- fomid in Bering Sea are not seals which have temporarily left the rookeries to feed, but are practically independent pelagic herds (Sec 219). The onlv evidence referred to for this is some alleged observations of the direction of the wind and the locality where seals are found, together with the assertion that the locality must be affected by the weather ; but these observations are not given, and, even if true, are quite too slender to furnish a foundation for any conclu- sion/ This suggestion of increased pelagic nature is increased pe.ugii- nature an iissuiii])- based on mere assumption, for which no proof, ti"" reliable or otherwise, is advanced by the Com- missioners, and the United States insist that it is unworthy of serious consideration in this contro- versv. (6) That the location of the breeding rook- eries is dependent solely upon the fact that the seals while there are not disturbed by man. This assertion (Sees. 523, 524). implying also Change of rookeries _ based on hearsay. the possibility of a change of rookeries when the seals are harassed, is partly founded on Indian legends and statements by J. W. Mackay and J. G. Swan, based onhearsay (Sees. 447,448, 449), that rookeries formerlv existed on the North- ' C. L. Hooper, post p. 370. it no HABITS OF THE FUE-SEALS. in!' I. •I'' *-',^.^ I' if? ■J;. enes Change of rookeries west Coast, and they are summarized in the sec- based on licarsnv. • n i i i i /-i tions referred to; butsuchstatementstlie Com- missioners have failed to authen Jcate. By way of further proof of the oame assertion the Report presentstheallegationthatnew breeding-rookeries had been at times noted on the Kamcluitka coast (Sees. 518, 519), which, however, were not visited Kew Asiatic rook- by the British ol^cials. Mr. Malowanski. who is the agent of tlie Russian Sealskin Company, was induced by the " various good authorities on the Commander Islands," on whom the Conuuis- sionei'srely for this statement (Sec. 518), to visit a reputed fur-seal rookery on the Kamchatka coast, and found the reported fur-seals were sea- lions.^ If all the incipient breeding rookeries alleged to exist on the Asiatic coast were exam- ined, doubtless they would be found to be similar to the one above noted. Mr. Grebnitzki, already referred to, states that he deems it to be wholly improbable that the Commander herd visits any land other than the Commander Islands." The United States deny that the Alaskan seals have any other home than the Pribilof Islands, or that, even if constantly disturbed by man while on the rookeries, thev would seek a new habi- tation. In this connection, the attention of the ' John Mulowanski, j)o.?/ p. 376. = N. A. Grebnitzki, pod \\ 363. One home of Alaskan »cal herd. ALLEGED CHANGES. lU Error in statement relied on by Report. Arbitrators is called to the fact that the Pribilof . P'"'!''!"/ , ^'i''"''^ inhabited for 100 Islands have been inhabited by man for a cen- y®*"- tury, and the seals have not desei'ted their home though slaughtered indiscriminately in the early years of the llnssian occuiiation ; and to the fur- Slaughter on Bob- •^ _ '■ ben Island, 1851-'53. ther fact that inl851-'53 the rookeries of llobben Island were cleared of far-seals (Sec. 510), but the few that escaped returned to the rookeries ill the years following (Sees. 510, oil). The Commissioners have endea.vored to estab- lish their position as to the change of habits of the seal herd, through the undue disturbance of the rookeries, by citing the fact that Capt. Bryant referred to the abundance of fur-seals along the coasts of Oregon, WashinGjton, and British Colum- bia in 18G9 (Sec. 422) ; and they seek to create the impression thereby that this was directly the result of the great numbers killed in 18GS on the Pribilof Islands. The Commissioners, through no error of their own, have been led into making this incorrect statement. The " Monograph of North American Pinnipeds," quoted by them, so states; butDr. J, A. Allen, the author of the w^jik, says that the year was 1870, instead of IRGi), as erroneously printed.' The statement as to the abundance of seals off the Oreixon coast was first published by Dr. Allen in the " Bulletin of ' Letter of Dr. Allen, post p. 413. m '•'! :a ,1 I m i'M 'A 112 MANAGEMENT. r: 'r. . i.'> I i ' 5 Error in statement the Museum of Comparative Zooloofy," page 88, relied on by Beport. . ^ oJ> I b > wherein he quotes from a letter received by him from Capt. Bryant, " under date of June 14, 1870," as follows : " The present year unusually large numbers have been seen off the coasts of Oregon, Washington Territory, and Biitish Columbia. * * ^ They were mostly of very young seals, none appearing to be over a year old." An examination of the " Bulletin " on this point by the Commissioners would have revealed the error in the later publication, used by them in their Report, and the further fact that these pup-seals could not have been of sufficient age, while on the Islands, to have been affected by any slaughter whatsoever. ALLEGED FRAUDULENT ADMINISTRATION ON THE PRTBILOF ISLANDS. Indirect ciiarges As already noted {ante, p. 68), the British Commissioners have, without making actual charges of fraud, insinuated and apparently en- deavored to give the impression that fraud was perpetrated on the Pribilof Islands by the former lessees, the Alaska Commercial Company, in taking sealskins therefrom over and above the number allowed annually by the lease. This The parties covert charge of maladministration is a reflec- tion upon the integrity of the United States ^ 1 "♦ FRAUDS CHARGED IN REPORT. 11» officials at San Francisco r.nd those who have at The different times for twenty years had the cliarge and management of the Alaskan rookeries, And, inasmuch as no such increased numbers of skins appear in the reports of sales by Messrs. C. M. Lampson & Company, of ijondon, it involves a reflection, also, upon the integrity of that well- known house. The Government of the United States is loath to believe that Her Majesty's Government inten- tionally and knowingly adopted these charges against the officials of the United States and citizens of both nations, which are entirely unsub- stantiated by evidence, when it incorporated the Report of its Commissioners in its Case before the Tribunal of Arbitration, confidently believ- ing that all such matter, if it had been previously observed by the Agent of Great Britain, would have been expunged from the Report before its submission as a portion of the British Case. Inasmuch, however, as such charges have be- come a part of the Case of Her Majesty's Gov- charge ernment before the Tribunal of Arbitration, the United States consider it a duty to deal there- with, not because the same are sufficiently defi- nite or important to establish any facts material to this controversy, but for the sole purpose of vindicating the officials of the United States ; [316] I p a r t i f J'!l Great Britain and the frauds charged. Reason TTnited States consider the >m I > I' 120 MANAQEMENT. '■■^'A A; -: ' r.r ■ Mooro'i report of skiiis, the custoHis officials at Sau Francisco and J875. the great house of Messrs. Lainpson & Com- pany in London are one and all in collusion and conspiracy to defraud the Treasury of the United States. There would, besides, be another diffi- culty to overcome, as it would be necessary to keep false books and false entries, while in fact nothing is so easily detected as false bookkeep- ing.* , ■■■ . •• . f 'Employes of icisccs As to the allegations in the Report that Gov- ernment officials were formerly employes of the I :• ;• ' " lessees, the United States admit that in one in- stance a Government agent (John M. Morton), who had charge of the administration of the Pribilof Islands, was formerly in the employ of the Alaska Commercial Conipany,- but deny that any similar casa has occurred, and assert that the imputation of fraud from such a circum- stance is unwarranted. Further vindication of the officials and citizens of the United States, to whom the Commission- ers have seen fit to impute fraudulent practices :nd conspiracy to defraud the Government of the United States, is considered to be unneces- sary. . > Fast p. 283. f s.'i ■;,,,,' . " Gustave Niebauin, ^o«(f p. 283. -• - i •■■■.■■ i m THIRD. XtEQULATIONS PKOFOSED IN THE REPORT. The Commissioners of Great Britain have in- tr()(hieed in tlieir Report a number of schemes for tlie future regulation of taking fur-seals be- longinif to the Alaskan herd. The United States . 'i''"' ''"!> '•^"a"'"- ° '^ turns sullieioiit. insist, as claimed in their Case, that they have, upon the facts established by the evidence, such a property and interest in the seal herd frequent- ing the Islands of the United States in Bering Sea, and in the industry there maintained arising out of it, as entitles them to protection and to be protected by the award of this Tribunal against all pelagic sealing, which is the subject •of controversy in this Case. And, quite irre- spective of any right of prop'erty or of self- ■defense in respect of their territorial interests, they claim to have clearly shown that no regu- lations short of })rohibition will be sufficient < ' prevent the early destruction of the Alaskan seal herd. In a consideration of these regulations sug- Jurisdiition of Tvibunnl of Arbitra- •gested, it is apparent that the principal curtail- tion. ment of seal-killing, in each of the various plans •proposed, is to be applied to the Pribilof Islands. - ' " " • ' }J J h !• : i 122 REGULATIONS PROPOSED. Unfairness of rpgulations proposed. 1. '*^M ' : .^ "■ !'.'' m ^ ^H >■; wH ^H On h ;/.; W lands i^ )^Hi !■ (-■ ;ln #-"! •;-•' fS; m J^B 1^ h ^H Juvisdictiou of All recommendations applying to the territoiy ot Tribunal of Arbitra- , tt • i t-i • c i <> i tion. the Uinted htates, even it the property oi that Government in the seal herd is not considered, as seems to be the case from the proposals ad- vanced by the Commissioners, are irrelevant in this Arbitration. The jurisdiction of the Tri- bunal of Arbitration does not, according to the understanding of the Government of the United States, extend to territory or territorial waters, which are not in dispute and the rights over which have not been submitted to this Tri- bunal. The manifest unfairness, however, of the regu- lations suggested calls for the attention of the United States, as the proposals submitted by the Commissioners demonstratemostclearlythespirit of partiality which is a feature of tiie whole Re- port. For this purpose the United States will give brief attention to these suggested regula- tions ; nevertheless, always insisting that all proposals affecting the unquestioned territorial riffhts of the United States are without the jurisdiction of this Tribunal and are irrelevant to the present contention. (a) Improvements in the mct^odi, of taking seals, (Sees. 147-150.) ,, . . ,., Pribiiof Is* The first suggestions advanced by the Com* missioners are in relat'on to improvement in the METHODS OF TAKING SEALS. 123 At sen. Use of obsolete. the rille methods of taking seals on the breeding islands ; Ou Pi-ibiiof is- lands. all or these proposed improvements are already ill force on the Pribilof Islands, though the United States admit that in some minor details a change may be beneficial. The second suggestions ar*^ as to improvements in the methods employed at sea. The first pro- posal is to prohibit the use of the rifle. The fol- lowing statements in the Report show the little importance of such a regulation : " The rifle was introduced though soon superseded by the shot- gun, which has now become the usual hunting weapon" (Sec. 584, p. 100) ; "if killed, as happens in the majority of cases, especially now that the shotgun has superseded the rifle,"etc. (Sec. 604) ; " the use of the shotgun for the purpose of kill- ing seals at sea has nov/ become so nearly univer- sal that it is doubtful," etc. (Sec. 657). It does not seem that the Commissioners can seriously advance a proposition to prohibit a weapon the use of which in pelagic sealing has become ob- solete. . • The second improvement is the adoption of a Gystem of licenses for White hunters, there being no suggestion made for such licenses for Indian hunters. In 1891, according to the Commis- sioners' table (p. 205), 715 whites and 3G8 In- dians were employed on the vessels constituting Lieenses np])ly to ml\ linlf III luiiiters. W .''!if fir Ml 124 REGULATIONS PROPOSED. Licenses apply only the \ ictoria Sealing fleet. Of all these vessels to half of hunters. ,,,,,. / but three had white seamen (p. 205). it can, therefore, be assumed that at least 360 of the In- dians were hunters or canoemen : and, as but two Indians go in a canoe,' 180 of the 3G9 boats and canoes given in the table contained Indian hunt- ers, so that this general " improvement " proposed would only affect one-half of the hunting force of the Victoria fleet. Besides this, the system of licenses proposed, the United Rtc contend, could not be made efiective, eve . ;t ii '..overed all classes of hunters. Increased license The third " improvement ' suggested is to in- fer steam vessels of . , no value. crcaso the license fee for " vessels propelled by machinery." As but two out of fifty of the Vic- toria fleet appear, by the table in the Report (p. 205), to have used machinery in 1891, and as tiieir catches were but 50 and 385 skins, respec- tively, while the average per vessel is shown by the table to have been nearly 1,000, it is impu^j; ■■ bie to see how such a restriction would ^t y:/i' ticularly beneficial. It has also been staled by those interested in pelagic sealing at Victori!* that the steam vessels used in seal-hunting have never paid expenses.'^ ' Appendix to Case of the United States, Vol. I, pp. 498, 504 j Vol. II, pp. 317, 326, 369, etc. '■' Report of Spicial Agent Henry, foxt p. 246. SrECIFIC SCHEME SUaGESTED. 125 [h) Restriction in the number of seals to he taken. {Sees. 151-154.) The Report presents suggestions whereby it is Unfairness of limi- proposed to limit the number of seals taken. It is observable that the limitations proposed for the Islands are for a fixed number and class of seals ; while the restrictions for pelagic sealing are pro- hibitions as to time and place, no provision being made as to number or kind of seals taken. The unfairness of such proposals is manifest. (o) Specific Scheme of regulations recommended. The Commissioners, after this generalization Regulations recom- . . mended. asto the methods of restriction necessary, present specific limitations " at shore and at sea," which they believe would afford the requisite degree of protection, in view of the actual condition of seal life as it presents itself to them at the present time. (Sec. 155.) The first restriction proposed is to limit the Limitation of quota on Pribilof IsUnds. number of seals to be taken on the Pribilof Islands to a fixed maximum of 50,000 (Sec. 155a). This proposed regulation, being appli- cable to the territory of the United States is, as already noticed, without the jurisdiction of this Tribunal. The second proposition is to create a zone about Protective zone proposed. the Pribilof Islands with a radius of 20 nautical I) ill II 4*^ W 'I' r' ill 1^ i>' V 1*1 K \^ irii 126 REGULATI0N3 PROPOSED. Protective proposed. Close .season pro- posed. zone miles, within which pelagic sealing shall be pro- hibited (Sec. 155b). The Case of the United States has fully dealt with this plan of zonal pro- tection/ and the Report itself practically admits the diflSculty of enforcing such a ^ rohibition (Sees. 160, 768). The third proposal of the Commissioners is a close season for pelagic sealing, extending from the 15th of September to the 1st of May in each year, with the additional provision that no sealing vessel shall enter Bering Sea before the 1st of Basis of proposed July {^ ^ach year (Sec. 1 55c). Tliis is based on Jlose season. *' ./ \ / the assumption that males and barren females • • constitute substantially the whole of the pelagic catch in Bering Sea (Sec. 648). If, however, this could be established, it is at once evident, that, if the alleged faults in the management of the Pribiiof Islands were corrected, the class of barren females, alleged as forming a large per- . . centage of the Bering Sea catch (which assertion • is advanced as an apology for pelagic seaHng), would entirely disappear. Thus the excuse for open-sea sea,ling is based on the alleged mis- management of the seal rookeries by the United States. Close season would 'fhe period in which sealing is allowed by the havclittle effect. ^ _ ° _ -^ regulations proposed is substantially the same as 1it:f » Case of the United Statefti pp. 25^-263. SPECIFIC SCHEME SUGGESTED. 127 the time occupied by the sealers in taking the cioso season would have little effect. so-callecl"SandPoint" and"Bering Sea"catches, which in 1891, according to the Commissioners' table (p. 205), constituted 93 percent of the total catch of the Victoria fleet. The Commissioners thus propose that the Pribilof Island quota be cut down 50 per cent and the pelagic catch but 7 per cent. As to the further concession of the Report, Net entering Be- ring Sea before that sealing vessels may be prohibited from enter- J"iy i, no concession. ing Bering Sea till the 1st day of July in each year, it is to be noted that the Commissioners state that the sea is " now usually entered by pelagic sealers between the 20th of June and 1st of July " (Sec. 649). It can not be that such a useless restriction can be suggested in the Report, e.xcept for the purpose of appearing to make a concession when none is really made. The Report further proposes that for every "Compensatory *■ -^ "^ acyustments " pro- decreaseof 10,000 seals taken on the Islands an rosed. increase of 10 nautical miles be given to the width of protected waters about the islands (Sec. 156). As this is simply an extension of the zonal question to a larger area, it is considered to be unnecessary to further discuss this proposed *' compensatory adjustment." A second proposal of the same nature is to curtail the open seosou for pelagic sealing by seven days if the quota I »' -v"^ !» iM] i-'i ; k 'iti i p 'n '■' Mi~ Sr^-h '■ I'^i ■-.."',' iif^> ;■) ^1 mR|;ij ..-Atf. »m»L< W^' nil Pll ^^H'l Ih' ■L 128 EEGULATIONS PROPOSED. "Compenstttory on the Islands is reduced 10,000. The Comrais- adjustinents " pro- pogcJ. sioners evidently consider that this suggestion is " a just scale of equivalency as hetween shore and sea sealing" (Sec. 156); that is, that one Supiwsed pelagic week ofpelajjic sealing equals 10,000seals killed. catch, 10,000 a week. r o & 1 As the open season proposed by them consists of nearly twenty weeks, this presupposes a pelagic catch of 200,000 teals, or four times as many as are contemplated by their regulations to be 1 allowed to the Pribilof Islands. It would also make the combined number of skins derived from the Alaskan herd 250,000, which certainly would be more damaging to seal life than the present condition of affairs, even if the United States allowed 100,000 skins to be taken on the Islands. The recommendation by the Commissioners of a series of regulations such as those above considered is clearly indicative of the bias and partisan spirit which appear in nearly every section of their Eeport. The alternative regulations proposed (Sees. 163-168), such as entire prohibition of killing seals on the breeding islands and periods of rest, with the necessary governmental charge thereby imposed, are not regarded by the United States as subjects requiring attention in the Counter Case. They are manifestly inadmissible. .,.. Unf airn ess of Com- mitsioners shown. Alternative me- thods of regulations. . r REPLY OF THE UNITED STATES TO THE BRITISH CLAIMS FOR DAMAGES. In regard to the schedule of claims for damages appended to the Case of Great Britain, upon which findings of fact are asked under the provisions of Article VIII of the Treaty of Arbitration : The United States admit that a portion of the Ssizurcs ndmitted. vessels named in the schedule were seized by their cruisers at or about the time stated, that the vessels were at the times of such seizures in the waters of Bering Sea and more than one marine league from any land owned by or within the jurisdiction of the United States ; but such seizures were made upon the waters included in the treaty of cession of March 30, 18G7, between Russia and the United States. As to others of the vessels mentioned in the Prohibition of soni- 111 iTT'io I'T 1 '"S '" I!P'*'"S Sen schedule, the United States admit that they were admitted. ordered by the cruisers of the United States to leave Bering Sea, where they were unlawfully engaged intakingfur-seals; and, as to others, that they were about to enter that sea for the same unlawful purpose and were warned not to do so by the cruisers of the United States. But, whether the vessels so ordered out of Bering Sea, or warned not to enter the same, left it, or refrained from entering it, by reason of such [316] K fl .vjS m : 11 fl '■■'I ■ '1 1 i ^ ii m\' m^^: 130 REPLY OF UNITED STATES Reasons why sei' zures made. Prohibition of seal- ordeis tind Warnings, the United States are not ing in Bering Sen admitted. informed save by the statements accompanying said claims, and they do not admit that such orders or warnings were obeyed. The United States charge that each and all of the vessels when so seized were engaged in the hunting of fur-seals in the waters of Bering Sea in violation of the statutes of the United States, and that such seizures were made in accordance with the laws of the United States' enacted for the protection of their property interest in the fur-seals which frequent Bering Sea and breed only upon the Pribilof Islands, which Islands are part of the territory of the United States ; and that the acts of the crews and owners of these vessels in hunting and catching seals were such as, if permitted, would exterminate the Alaskan seal herd and thereby destroy an article of commerce valuable to all civilized nations. Vessels seized. It is further insisted. :ai the part of the United owned by United * States citizens. States, thatthestcam schooners ihornton, Grace, Anna Beck, and Dolphin and the schooners Say- ward, Carolena, Pathfinder, Alfred Adams,Black Diamond, and Lily, for the seizure of which claims for damage are made, were at the time of their seizure owned in whole or in part by citi- ' See. 1956, Revised Statutes of the United States ; see Appendix to Case of the United States, Vol. I, p. 96. U ^^ ■^•iu:; r TO BRITrsir CLAIMS FOT? DaMVOF'S. 1«1 zens of tlie United States, aiul that, therefore, v.-sscis soizod, , . „ , , 1 • 1 . 1 owned l>v Unitril no Claim lor damages can be urged in then- be- statei citizeii:-. half by Great Britain ; that the steam schooners' Thornton, Grace, Anna Beck, and Dolphin and one-half of the schooner Soy ward were owned by one Joseph Boscowitz, a citizen of the United Rfii'tioj's of Uos- ^ cowilz, wurreii, una States ; that James Douglas Warren, in whose *^'^°v^'^- name the claim is made as to the steam schooner Thornton, had no real interest therein, but that the same was mortgaged to her full value to ' • • Joseph Boscowitz, who was in fact the real ,/.''««;P'' Boscowitz, '■ Unitt'd States citizen, owner ; and that Thomas H. Cooper, in whose """•-''• name the claims growing out of the seizures of the schooner W. P. Sayward and of the steam schooners Grace, Dolphin, and Annci Beck are made, had in fact no interest therein and has in no respect been damnified or sustained loss by the seizures thereof, either as owner of these schooners and steam schooners, their outfits, or their catches, the same being mortgaged to their full value to Joseph Boscowitz, above referied to, and having been conveyed to Thomas H. Cooper, without consideration, for the sole pur- pose of giving them a registry as British vessels. ' It is also insisted by the United States that a. j. BccUtei, United States citizen, the schooners Carolena and Pathjinder were in owner. ' Deposition of Thomas H. Cooper, post p. 320. AfTidavit of T. T. Williams, Appendix to Case of the United States, Vol. II, p. 491 ; post p. 351. Testimony in Wurrcn i'«. Boscowitz, /io«< p. 301-310. m m [316] K 2 i m m : 'V f m fi'i ■ii 132 REPLY OF L'NITKD STATES A. J. Beohtol, fact at tlie time of their seizure ownetl by one United states oitiien, . t n i i i • • n i ti • ^ c- i owner. A.J . Bechtel, then a Citizen oi the United otates, and that WilUam Munsie and FreJerick Carne, in whose names the claim for damages growing out of the seizure of these schooners are made, had in fact no interest in the schooners or their outfits and catches; that the schooners Alfred Adams, Black Diamond, and Lily, for the seizure of which claims are made in the schedule, were A. Frank, United in fact at the time they were seized owned by Slates citizen, owner. » i-t i i one A. Frank, who was then a citizen of the United States ; that Gutman, In whose name the schooner Alfred Adams was registered, was not the actual owner of the schooner, her outfit or catch, but, on the contrary, that the said schooner, her outfit and catch, were owned by said Frank ; that after the release of the Alfred Adams from seizure her name was changed to Lily, in behalf of which damages are also claimed in the schedule, she remaining the property of A. Frank, and he alone being interested in her outfit and catch, and not Morris Moss, in whose name the last mentioned claim is presented ; and that said Frank was also the owner of the schooner Black ■ . ■ ,; Diamond, her outfit and catch, and that he was the real person who sustained damage or loss by ' T. T. Williams, post p. 351. i^ 1 TO BRITISH CLAIMS FOR DAMAGES. 133 reason of the seizures of the Aljred Adams, Lily, a. Frank, United , , _^ . ,, Statci citizen, owner. iind Black Diamond. It is further insisted, on the part of the United No dnmages can bo awarded for prospcc- States, that all the items in tiie several claims in tive profits, tiie schedule, designated as " loss of estimated catch," " probable catch," " balance of probable catch," " reasonable earnings for months of October, November, and December," "loss of profits," for seasons subsequent to seizure, and sill items in said claims based on future or con- tingent events, are in the nature of prospective profits or speculative damages, and are so uncer- tain as to i'orm no legal or equitable basis for finding facts upon which damages can be predi- cated. Claims of the same nature were made on behalf of the United States before the Tribunal of Arbitration on the Alabama Claims, which met at Geneva in 1872, and in passing upon this class of claims that Tribunal said : " And whereas prospective earnings can not properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies, the Tribunal is uTiani- mously of opinion that th' rr is no ground for awarding to the United Slaces any sum by way of indemnity under this head.^ Decinion in Geneva Arbitration. ' W. H. Williams, post p. 352. - Papers relating to tlic Treaty of Washington (Alabama Claims), Coiigi'essional publication, Vol. 4, p. 53. li ! it %^ 134 REPLY OF UNITED STATES. All (1 II m It g s clgiined osvevaive. Qiioitions sub- mitted under Article VIII. fl 'C It is further insisted, on the part of the United State.s, that the value of each and all the vessels 80 seized, mentioned in the schedule of claims, and the detailed accounts in relation thereto, are grossly exaggerated, and that, in fact, the values of these vessels and their respective outfits were far below the amounts stated and claimed ; and the damages claimed are in all respects excessive,' aside from those which, as stated above, are wholly untenable. i i-.mt-l , ; . ■ ' The United States do not deem it necessary to state in detail wherein the valuations and dam- ages claimed are excessive and exaggerated, or submit proofs in relation * hereto, further than by the analysis of said cla ^ound in the Appen- dix tothis their Counter i./ase,at page 339, for the reason that the "questions of fact involved in the claim " of either of the parties to the Treaty ajjainst the other, to be submitted to the Tribu- nal of Arbitration under the provisions of Article YIII, shoidd, as this Article is understood by the United States, ha ve relation onlv to such facts as tend to fix the litbility of one party to the other, and do not include facts which only relate to the amounts of such claims. ' Tables showing values of vessels seized, etc., post pp. 339-340 Rep. rt British Commissiciers, pp. 205, 810, and 211. .fT..' - '/.' COXCLUHIOX. The Government of tlie United States, in clos- ing its presentation of the matters in controversy cngc by this reply to the printed Case of Great Britain, reasserts the positions taken in its printed Case and all of the propositions and conclusions con- tained therein, and is prepared to maintain the same by argument before the Tribunal of Arbi- tration. JOHN W. FOSTER, Ayent of the United States. 135 t« the PHSIIOI s tiiken in tlie |)OII- M?) ^^'m ■■^ ^.m ai Bl< .' !-•': 0\ ''■; K fif • m [fUif m'' :!-: SUBJECr-INDEX OF COUNTER CASE. Acts committod on high seas, not iihvays justifiable .... Admission as to decrease after 1880 .... Affection of cows for pups .... Agents of Government as employes cf lessees Alabama cluinis, decision of Tribunal of Arbitration on Alaskan fur-seals. {See Fur-seals.) „ seal-herd : Decrease of (See Decrease. ) Intermingling with Russian herd One home of Alfred Adavis: American ownership of Name of, changed to Lilii .... Alternative regulations proposed in Rej-ort American ownership of scaling vessels seized .... Anna Beck, American ownership of Apology for pelagic sealing. (AVe Pelagic sealing.) Aquatic coition ; IJryant's opinion as to .... Dall's opinion as to .... Evidence in favor of .... Frequency of, afllrmed by Uritish Commissioners Inconsistent with statements in the Report Insufficiency of ovidence in Report favoring Necessitates later arrival of cows each year No instance of, seen by British Comniissioncis .... Possibdity of, affirmed b\ Alritish Commissioners Arbitration. (See Treaty of Arbitration.) Argument .... Arrival of cows. (»^ei; Cows.) ,\rticle. {See Treaty of Arbitration.) Ardill, MountiHl Constable Asiatic rookeries, new. (See Change of rookeries.) Authorities in tlio Report : Charles Bryant Henry W.Elliott Average catch per boat : . In 18S(J Spring catch, 1886-181)1 .... {See Table.) Average catch, per man in 1885 and 1836 Barron female seals. {See Cows.) Beachmast«rs, {See Bulls.) 35 GG 53 120 133 48 110 130 132 128 130 130 62 e2 01 Gl 63 63 6t 62 60 66 53 53 107 108 107 .;:i..; INDEX OF COUKTER CASE. \ I mi '<» 'v' U^. Bcclitel, A. J., a citizen of United States Berlni; Sea : Alleged to be summer liabitat of fur-sealg Baiieroft's views as to protection of, from whalers Captain Hooper's investigations in, in 1892 Catch 'n, not included in proposed close season .... Control exorcised over Cruisers in, in 1892 Distinction between, and Pacific Ocean .... Distribution of fur-seiils in ... Independent seal herds in, alleged Intermingling of Russian and Alaskan seal herds in Jurisdiction over. (6Vp, a?«o Control exercised over.) .... Ji'o Territorial rights claimed over .... .... Not included in term Pacific Ocean Pelagic catch in. {See Pelagic sealing). „ sealing in, compared with that in !XortI» Pacific ... Percentage of cows taken in Prohibition of sealing in, by United States ... Right to fish in, does not include right to take seals in .... Russian cruisers in .... .... Russia's title to shores of, undisputed Time of entrance of, proposed to be limited Visits of whalers to .... .... „ ,, not inconsistent with position of United Warning of vessels out of .... " "Whalers visiting, closely watched Bering Sea Commission Organization of .... ■' {See British Commissionei's.) Birth rate, effect of pelogic sealing on Black Diamond, American ownership of Boscowitz, Joseph ; A citizen of United .Slates Ownership of, in vessels seized Relations of Warren, Cooper, and British case : As originally presented Chapter I of Chapter IV of Consists now of original Case and Report .... Deals, With what mntter Di'jilomatic corresijondence resulting from, iis originally prcse Fails to distinguisli between Bering Sea and Pacific Ocean Incompleteness of Misconceives character of control claimed over Bering Sea Reply of United States to .;. Supplement thereto .... British claims for damages, reply of United States to .... British Commissioners .... Cojicede nothing by proposed time to enter Bering Sea .... Curtailment i>f Elliott's statement us to size of harems by Did not first see dead pups on the rookeries „ visit alleged new Asiatic rookeries States nted Page. 132 100 25 S3 l-'7 18, lit, 2fi, 29,30 51 17 48 100 48 7 1!) 20 84 83 120 25 27-30 17 127 2-i, 26-28 28 120 26 43 44 tjt) ro 131 131 131 2 10 23 2,3 7 2 17 2 18 7 2 120 43 127 74 87 110 INDEX OF COUNTER CASE. 139 British Commissionera -Continued. Disqualifit 1 for impartial investigation .... Distortion of statement of Elliott by .... Erroneous statement as to opinion of cause of dead pups Ignore seals lo.^t by wounding Instrueted to eojperatc with American Commissiowers .... Manner of conducting investigations .... Object of, in advancing winter habitat theory Report of. (See Report of Britisli Commissioners,) Secretary Blaine's note concerning Unfairness of, as to average catch per boat and per niun..,. ,, in close season proposed .... „ in discussing quota ,, regulations proposed by .... Bryant, Charles : As an authority in the Report Error in publislied statement of, used in Report On aquatic coition .... ,, excessive killing .... ,, when cows enter water .... Report of, in 1875, and reasons for Bullets found in seals killed on the Islands .... Bulls : Do not resort to alleged winter habitat .... Range of, in winter .... Bundles of sealskins : Containing more than two skins would be observed Counting of .... Investigated by Maj. Williams Two wkins only in en li of Weight of .... ... .... „ explained . . Canadian sealers. (See Pelu^ic sealers.) Carolena, American ownership of Case of the : Harriet Loriot Pearl Case of the United States : Deals chiefly, the matter with which Positions taken in, reasEerted Catch, average. (See Average catch.) Catch of sealing vessels. (See Pelagic sealing.) Change of liabits : Alleged in Report Change of rookeries. (See Change of rookeries.) Increased pelagic nature alleged ,, ,, an assumption „ ,, partly bused on error ' Independent herds in Bering Sea unproveu Change of rookeries : Based on hearsay Disproved . . ... On Asiatic coast not Vi.ited by British Commissioners ... „ unproveu ... Bobbun Island experience disproves rage. 46 115 87 98 4i 45 101 45 107 127 72 128 53 111 62 69 58 69 98 101 101 117 116 117 117 118 118 180 38 22 20 7 135 106 106 109 111 109 109 111 110 110 111 ^ m fell: \ ii iri i 140 INDEX OF COUNTER CASE. it* IP' : ' r I .s IK' I'" I f i; Charges of fraud. (See Fruuda alleged.) Charts : Chart No. II of Report „ III of Report „ IV of Report In Rcporl of British Cominissiouers. {See Report of liritish Conunis sioners.) New migration chart .... Of cruises in 1892 Sealing chart, 1891 1892 Claims for damages — Excessive Reply of United States to British Close season — Basis for, proposed, ba^ed on alleged errors in management Extended a week to equal 10,000 decrease in quota Proposed, does not include Sand Point and Bering Sea catches Proposed in Report for pelagic sealing ,... .... Proposed, would have little effect .... Close time. {See Close season.) Coast catch. {See Pelagic sealing.) (/S'ee Spring catch.) Coition. {See Aquatic coition.) Colonial system : Russia's Ukase of 1821, a renewed declaration of .... Commander Islands, Sealing vessels around, in 1892 Commissioners of Great Britain. {See British Commissioners.) "Compensatory adjustments " suggested in Report Conclusion of Counter Case .... Cooper, Thomas II. : Not injured by seizures ... Relations of Bocowitz, Warren and Copulation. (*"ee Aquatic coition.) Correspondence. {See Diplomatic correspondence.) Counter Case : Conclusion of .... .... .... Object of Counting of skins : At London „ Pribilof Islands ,, San Francisco .... DilTerenco in, at islands and at London Manner of Statement of Elliott as to, distorted by Report Various compared CowB : Affection of, for pups Arrival of. in 1891 „ 1892 Barren, in Bering Sea catch basis for close season .... „ 250,000 alleged in 18: Enter Water, When „ Bryant's statements as to when , Page. 103 108 102 105 51 52 61 13t 129 126 127 127 12G 126 15,21,23 18 29 .... 127 .... 133 .... 131 .... 131 133 1 117 115 116 119 115 115 118 53 64 64 12G 75 67 63 INDEX OF COUNTER CASE. 141 Cows— Continued. Tigc. Bnter water, Report's testimony on when, insufficient 59 ,, ,, within fourteen or seventeen days after birtli of pup GO Fecundation of, alleged to take place in water .... 60 Feeding of 57 ,, position taken by Report on 57 „ Townscnd on .... 59 „ while suckling denied by British Minister at Tokio 57 Later arrival of, at islands disproved (i4 Nureing, examined by C II. Towr.send 8(5 ,, few taken by pelagic sealers, implied by Report 85 ,, of pups by. (See Nursing of pups.) ,, taken in Bering Sea by Capt. Hooper 85 Percentage in pelagic catch .... 80 Period of gestation of, nearly twelve niontha .... 85 Pregnant, assumed not to be taken in Bering Sea by Report 84 ,, at all times when in tho water .... .... 85 Cruisers, Russian : Directed to patrol colonial seas 26-28 In Bering Sea 27-30 Dall, W. JI., Opinion of, as to aquatic coition 62 Damages : American ownership of vessels for which, are claimed 130 Article VIII of Treaty as to, interpreted I'M British Claims for, replied to 129 Claims for, excessive ; 134 ,, in name of Cooper 131 No, can be awarded for prospective profits 133 Speculative, decision of Geneva Arbitration .... 133 „ Great Britain estopped from claiming 133 Sustained by warning out of Bering Sea not admitted 129 Data : For charts in Report of i^ritish Commissioners .... 49 Insufficient to establish winter habitat tiieory .... 102 Dead pups : All, were emaciated 91 Cause of , not novel when told British Commissioners 87 „ decrease of; in 1892 93 Caused by killing mothers denied by Report .... 89 Ci;u3C8 advanced by Report .... 89 Deiith of, not caused by an epidemic disease .... 89 ,, ,, driving and killing mothers 89 „ ,, raids .... .... 90 „ „ stampedes 90 Tacrease on Russian islands coincident with inoreased sealing in Asiatic waters .... 03 Not first observed by British Commissioners .... 87 ', Number of, in 1892 much less than in 1391 91 Observed prior to 1891 87 On Polovnia Rookery in 1892 : 92 On the rookeries 80 Presence and cause noted in diplomatic correspond'^nco in 180O 88 Prima facie cause of 8fl Decrease : Admission as to period after, decided , 66 '''m l'!i H) EH \': ffl k s -I f I t 142 INDEX OF COUNTER CASE. Decrease — Confhi ucd . Alleged recognition of, by resort to new arena „ to be caused bj management .... „ to bo greater on land than at sea Comparison of harems, 1870 and 1890, irreL'vant to show Surplus of virile males, notwithstanding Evidence advanced to show, prior to 188C No resort to reserved areas in 1879 showing ' Noted in young males in 1889 •' Of 1892 over 1891 Pelagic sealing admitted as to tending towai'd ' Prior to 1880 denied ' ,, proof advanced to show .... Recognition of, by lessees alleged Under Russian management caused by indiscriminate killing .... Difference of views os to object of Treaty .... Diplomatic correspondence : Concerning the British Case Shows that United States always claimed property interest in seals Distribution of fur-seals in North Pacific Do/pAt A, American ownership of Elliott, Henry W. : Alleged report of, in 1890 As an authority in the Report . On size of harems in 1871 Statement of, as to counting skins distorted by Report Employes of lessees as Q overnment agents Erroneous translations Evermann, Prof. B. W. : On size of harems in 1892 Statement as to dead pups in 1892 Evidence, untrustworthiness of, in Report Excessive killing : Bryant on, in 1875 Foundation of charge of {See Management.) Exclusive jurisdiction. {See Jurisdiction.) Fecundation. {See Aquatic coition.) Feeding excursions. {See Cows.) Feeding. {See Cows.) Feeding grounds during migration Female seals. {See Cows.) Firearms. {See Ritle and Shotgun.) Frank, A., a citizen of United States Fraudulent practices. {See Frauds.) Frauds— As alleged in the Report Belief that Great Britain inadvertently adopted charges of Charged in Report Charges of, unwarranted „ In counting Pribilof sealskins. {See Counting of skins.) In management mentioned In weight ot bundles implied. {See Bundles of sealskins.) Investigation of Moore in 1875 as to No auti4ont,»' fo; r>»port .'harging 78 65 100 73 74 73 79 66 67 66 79 71 76 72 7 8 104 130 73 53 74 115 120 13 75 92 82 69 69 105 132 114 113 112 120 68 119 115 INDEX OP COUNTER CASE. Frauds— Continued. PartioH charged with, in the Report Reflection on C. M. Lanipson & Company as to Why United States considers charges of Fur-seals : Abundance of, alleged for 1869, but founded on error Australian, liabits of, in nursing Breeding male, {See Bulls.) Charts in Report showing distribution of, in Bering Sea Decrease of Alaskan, (See Decrease.) Distribution of, assumed by Report inaccurate .... ,, in Bering Sea „ in Pacific Ocean Female, (See Cows.) Habits of, (See Habits.) Home of, (See Winter-habitat theory.) Intermingling of Commander and Robben, assumed in Report Migration of, (See Migration.) Must resort to land for a time during hair shedding Number of, to be taken, suggested by Report Only portion of, resort to alleged winter habitat Pelagic Nature of. (See Change of habita.) Property interest in .... „ „ of Indians in, advanced by Report Right to protect, does not involve exclusive jurisdiction over Bering Sea " Stagey." (See " Stagey " seals.) Waste of life among, from pelagic sealing Geneva Arbitration. (See Tribimal of Arbitration on Alabama Claims.) Gestation, period of Government agents as employes of the lessees Gravid cows. ( See Cows.) Great Britain and frauds alleged Grebnitzki, N.A. : As an authority in the Report (footnote) Examination of pelagic catches bv .... .... Grace, American ownership of the Guns. (See Rifle and Shotgun.) Habitat. (See Winter habitat.) Habits Aquatic coition Arrival of cows on the rookeries in 1891 Change of, alleged Change of. (See Change of habits.) Harems, size of .... Of Australian fur-seaU given by Sir F. McCoy Winter habitat theory. (See Winter habitat theory.) Harems, size of In 1874, according to Elliott ..„ ; In 1891 - In 1892 Harriet. (See Case of the.) Hauling grounds, no, ever re-erved Home of Alaskan seal herd. (See Winter habitat) Hooiicr, Capt. C. L. : Investigations of, in 1892 „ M 10 migration of seaU ... U3 112 113 113 112 66 t ' 49 62 48 104 52 107 125 102 121 101 7 94 63 120 113 62 83 130 48 60 64 106 73 66 m in *rM \fi ■*'~ ;' «i I III '■ ' ih i r '4 if r IM' !^* 144 INDEX OF COUNTER CASE. Hunter*. (See IVliigii' sciiliiig.) Inponsistenc'ii's in Report Indian hunters. (See Pelagic s.-aling.) Indian 1 ribes, property interests of, in seals, advanced by Eeport Independent pelngic seal herds .... Interininfi[ling of seal herds in Bering Sea .... Interclinngo of seals between Pribilof and Commander Islands Intornational eoaperution : Apparently assented to by Lord Salisbury Invited by Mr. Hazard United States sought International law, growth of Inspector's count. {See Counting of skins.) Investigations by British Commissioners .... Improvements in methods : At sea suggested .... Increased licenses for steam vessels of no avail Licenses for lumters proposed On Pribilof Islands suggested in Report .... Prohibiting use of rifle Island count. (See Counting of skins.) Issues : The true Statement of, by Mr. Blaine United States' views of .... Jackson, C. 11. : A questionable authority On promiscuous nursing of pups Joint Commission. {See Bering Sea Commission.) Jurisdiction : Distinction between exclusive, and right to protect seals.... I. (See also Bering Sea, control exercised over.) Over ^Bering Sea „ seals can be protected without Of Tribunal of Arbitration as to regulations Jurisdictional controversy : Always incidental to other issues Final observations upon .... Not the true issue .... Origin of When entered upon by United States Killing : Methods of. (iSce Management.) .• • ' Excessive, alleged „ {See also Management.) Indiscriminate, prior to 1847 cause of early decrease Lampson & Co. {See Frauds.) Lessees of Pribilof Islands : '■• ii: ; Alleged recognition of decrease by Licenses apply to only half number of hunters For hunters ,, stenm vessels proposed Liability. {See Damages.) riiKC. C3 101 109 48 48 9, 10 13 35 45 123 124 123 122 123 7, S3 10, 11 12,33 55 55 7,19 7 10, 19 121 8 30 S3 8 13 G5 72 70 123 123 124 8 BO Is h r INDKX OF COUNTER CASE. Li/i/ . Ainerican ownership of I'oi'iiii'rly Alfred Adiimi T/oys of Ainorioiiii and Urilish cniisci .-.. {See Sualiiig logs.) London roiint. {See Counting of skins.) Loriot. (&>(? Ciiso of the.) Luknnnon Kookcry. {See Rookery.) McCoy, Sir F. : Authority of, for statements on habits of fur-seals Knowledge of, as to promiscuous nursing of pups, insufficient .... On affection of cows for pups „ promiscuous nursing of pups .... Maladministration. {See Frauds alleged.) Male seals, surplus of Jfalowonski, John, examination of pela,gic catches by Management : Alleged errors in, basis for close season „ ,, Report's opology for pelagic sealing As an alleged cause of decrease in seal herd ..., Discussion of, after 1880, irrelevant Evidence used to charge, with decrease Excessive killing under, alleged Failure in, to note deereose caused by pelagic scaling irrelevant Failure of Report to show change of, after 1880 Frauds in. (See Frauds.) Methods employed admitted to be almost perfect Proof must be limited to period prior to 1880 Russian, discussed .... Size of quota irrelevont unless decrease shown .... Management of the Pribilof Islanda. {See Management.) Maps. {See Charts.) ^ Methods. (See Management.) Migration : Captoin Hooper's investigations of 18P2, as to .... Direction seals travel during Distribution of seals during.... Feeding grounds during ' Increased knowledge of sealers as to route of New chort of Where seols appear off coast during .... Mismanagement. {See Frauds.) Modus Vivendi of 1891, signing of .... " Monograph of North American Pinnipeds," ervor in, used in Report Moore, J. S. : Investigation of, in 1875 Report of, on question of frauds Mortality among pups. (See Dead pups.) North Pacific : Distribution of seals in Pelagic eatch in. (See Pelagic sealing.) Pelagic sealing in, compared with thot in Bering Sea Northwest catcli. (See Pelagic soaling.) Northwest Coast : Rookeries on. {See Rookeries.) Ten years' trading privileges on • Visited by vessels of all nations [316] 14.") VM) ia2 5(3 55 53 55 7t s;i 12G 12G 65 08 71 05 07 08 65 05 71 71 104 101 104 105 108 105 104 44 111 119 119 104 84 22 17 Ur H lis -tnu^ HI w 'H.- iiw m\m 146 INDEX OF COUNTER CASE. M Xumber of Ro:tU killed on tho Pribilof Islands. (Spe Quota.) ,, to be taken, rcHtriction as to, propoHod in Report .... Nuwing cows. (iSee Cows.) Nursing .'' pups ; Analogy with other animals opposed to promiscuous, admitted..,. Authorities relied upon in Report to prove promiscuous Bryant on the Elliott on the Promiscuous, alleged in Report denied not proTen Sir ¥. McCoy on „ stated by C. 11. Jackson .... Op«n-sea sealing. {See Pelagic scaling.) Open season. (See Close season.) Origin of jurisdictional controversy Overdriving subsequent to 1880 irrelevant Ownership of seized veijels. (See Vessels seized.) Packing count. (See Counting of skins.) Pacific. (See North Pacific.) Partiality of British Commissioners. (iS'ee British Commissioners.) Pathfinder, American ownership of Pearl. (See Case of the.) Pehigic catch. (See Pelagic sealing.) „ coition. (See Aquatic coition.) „ hunters. (5'ee Pelagic scaling.) „ nature. (See Change of Habits.) „ seal herds Pelagic sealing Admitted to tend towards decrease Alleged number of seals lost by Indians „ „ by white hunters Apology for, in the Report „ in the Report based on alleged faults in management ,, in Report insufilcient .... Begins below alleged winter habitat Catch in Bering Sea three times as much as in Nort'i Pacific „ supposed to equfil 10,000 seals a week Catch of, proposed to be four times quota Catches in Bering Sea and North Pacific compared Close time for. (See Close time.) Effects of, on birth rate General use of shotgun in Improvements in, suggested. (See Improvements in methods.) In Asiatic water coincident with increase of dead pups on Russian Islands In Bering Sea compared with that in North Pacific Inconsistencies of statements by Indians and whites Interested witnesses are those engaged in Percentage cf cows admitted tJ be taken „ in catches of vessels seize;! by Russia in 1892 „ in c.itch „ taken by, prior to 1870 „ taken in, according tn Indians „ „ Bering Sea by „ „ Statements ab)ut, inconsistent with Report 12.5 St 54 53 53 63 63 60 C.5 6.5 8 79 130 109 83 60 95 95 80 12G 99 103 94. 128 128 03 6G 123 93 84 90 81 81 83 8) 84 to 83, 85 81 m INDEX OF COUNTER CASt!:. rdonic sealing — Continueil. I'rohibition of. in Derinc Sea by United States Seals lost by wounding in „ „ not considered in Hcport " Stagey " seals taken in Steam vessels used in,... Tubulated statement of white hunters as to number lost Unl rust worthiness of witnesses as to Use of riflo in, obsolete Waste of life by „ insignificant in, evidence advanced by Report White huiitcr.s appear to lose 40 per cent of seals '• White hunters," table Pregnanoy, period of r-cgnant cows. (s Cows.) I'ribilof Islands : Improvement in methods on. (Nee Iniprovciiicnt in methods.) Inhabited by man for a century, and seals have remained Lessees of. ('See Lessees of Pribilof Islands.) Regulations as to (piota on, proposed by Profits, prospective. {See Damages.) Prohibition of sealing in Bering Sea by United States Promiscuous nursing of pups. {See Nursing of pups.) Property in seals Suggested by Mr. Rayrrd {See Right of protection and of property in seals.) Property interest of Indians in seal-herd alleged Property right. {See Right of protection and property in seals.) Prospective profits. {See Damages.) Protection and property rights in seals. {See Right of protection and porty.) Protection of seals : Always the main question By Russia in 1892 Independent of jurisdiction over Bering Sea Justifiable independently of jurisdictional rights Main object of arbitration .... Protection, right of. {See Right of protection and property in seals.) Protective zone. {See Regulations.) Provisions of Treaty. {See Treaty of Arbitration.) Pups : Affection of cows for Dead. {See Dead pups.) Nursing ot. {See Nursing of pups.) Questions submitted under Article VIII ul' Treaty of Arbitration Quota : Bryant's reasons for advising reduction of, in 1875 Decrease of, by 10,00u uqdals extension of close season by one week ... Limitatio". of, proposed in Report .... Portion of, from Northeast Point .... Proposed in Report to be one-fourth of pelagic catch Reduction of, in 1889 Size of, from 1860 to 1865 „ irrelevant unless decrease shown „ under Russian management unfairly stated 10,000 decrease of, equals 10 miles increase of zone of pro- 147 Page. 120 08 07 107 liit. m 82 12:{ \H 95 !)() 97 63 111 125 120 121 9,10 101 R 29 19 10 7 53 69 127 125 77 128 67 73 71 71 127 — •/ ' Ht 148 INDEX OF COUNTER CJiHE. i it;.;: ll:' ' I: ^i Raid* not n rause of doatli of pupa Ri'driving fiu)iKpqiicnt to 1880 irrelovnnt RoRi.ttry, Hrilish, soln purpose of convejanco of vcmuIi to Cooper .... Reproduction, ai-t of. (See Aquatic coition.) Roply of United Htntos to British Cnso ,, ,, claims for daniagos Rosorvod aroan, alleged resort to Rifle: Prohibition of, suggested in Report Use of, in Healing obsolete ..» Regulations : Alternative methods of, proposed by Report „ proposed inadmissible As to methods of taking seals. (Spp Improvoment in methods.) As to numbers to bo taken, proposed .'.■ Close season. (See Close season.) " Coinpcn.v.tory adjustments," proposed in Ro))ort For ])rotective zone difficult to enforce ,, proposed Jurisdiction of Tribunal of Arbitration as to , Limitations as to quota on I'ribilof Islands, proposed Proposed, as to entrance of Bering Sea „ by British Commissioners „■ for Pribilof Islands irrelevant ,, show partisan spirit of Briti.sh Commissioners Specific scheme of, proposed... Ten-mile increase of zone for 10,000 reduction of quota The only, sufllcient Unfairness of proposed Report : Alleged, of Elliott in 1890 Of Bryant in 1875, ahd reasons for Capt. Hooper .... „ Moore in 1875 .... .... .... Report of British Commissioners.... Advances property interest of Indians in seal-herd Alleges few cows in pelagic catch ,, waste of life in pelagic scaling insignificant Alternative regulations proposed Apology for pelagic sealing in, insufficient Apologizes for pelagic sealing ... Assumes intermingling of Commander and Robben seals Causes of dead pups suggested by Chart No. II of, discussed ' ' ^ . Ill of, di^(•ussed .... „ IV of, discMis.sod . .... Charts in, data for compiilution of ,, insufficiency of data for compilation of ■■.■ ,; principal data for compilation of ,, showin;^ distribution of seals, inaccurate Contents of Dead pups on the rookeries considered in l)eliver\ of, to agent of United States EMor relied upon in, to show increased pelagic nature Til lit'. IK) 71» lai r 121) 7« Vi^ 12:h Via 125 127 120 125 121 125 127 121 122 123 125 127 121 122 73 G9 83 110 43 101 80 94 128 99 80 52 89 49 49 49 49 50 50 52 46 86 111 INDEX OF COUNIKR CASK. Report of Oritidli CoiiniiiKsionors -Cuiitiimcd. Kiiiln to mIiow c'lmnfji" of iiiiumgf'inciit, after 1880 Kiiiiids alli'^pd ill. (See Frnii(l«.) Inconsistcncioiior ... „ 119 to aqiiati(M'oi(i()ii TtK*uiigii)tent Htatoments of BcalcM in IinufUcii'ni'y of cvidenco in, to oittabliNh aquatic coition ... I'art of British Case .... rosidon of, on aquatic coition J'o.sitioii taken by, as to feeding of cows Hojjulationn ])ropo»cd in Reply of United States to Soals lost by woundinjj not considered in (State sealing in Bering .Sea not as destructive as in North Pacific Tabulated statements of white hunters in Why delivered ... Right of protection and jiroperty in seals .... Assertion that it is new .... British views of claims to .... .... .... Claim of, not now .... Claimed by Mr. Bayard „ Mr. Blaine .... „ Mr. Plielps .... .... Dr. Dawson discusses.... Facts relating to, fully discussed llistory of claim of Robbcn Island : Rookeries on, cleared of seals but not deserted Rookery : Lukannon, harems on Northeast Point, number of seals taken from „ percentage of quota from Polivina, not a reserved area .... ,, only 230 dead pups on, in 1892 Reef, alleged stampede on .... .... Tolstoi, dead pups on Zapadnio, not a reserved area Rookeries : Change of. (See Change of Rookeries.) Dead pups on the Formerly on Northwest coast unproven Location of, dependent on isolation... Now Asiatic. (See Change of rookeries.) Robbcn Island Russian Management. (See Alanageraont.) Russian seal herd, intermingling of, with Alaskan herd Russia's action in 1892 „ colonial system. (See Colonial system.) „ title to shores of Bering Sea unlisputed San Francisco, count of skins at .... .... Sand Point catch not included in proposed close season Sayward, American ownership of Schedule of claims for damages. (See Damages.) Scheme of regulations proposed Schooners. (See Vessels.) Sea, Bering. (See Bering Soa.) ■.• ■• 5' _ ■ " ■ , • • aa 14 J) r«({o. 68 81 6:) i)t! ua 2,3 61) ">7 121 41 07 84 90 a 10 32 32 38 32 30, 33, 36 34 37 37 :j2 .... Ill 75 77 78 79 92 90 89 79 ... 109 86 .... 109 .... 109 .... Ill 48 29 17 .... 116 .... 127 .... 130 .... 125 I ft p Rf ■' I.' I' / n |.i a •II 150 INDEX OF COUNTER CASE. Sea scaling. (See Pelagic sealing.) Scaeatoliie. (See Bulls.) Seal herds. (See Alaskan seal herd, Russian senl herd, Fur-seali.) Sealing. (See Pelagic scaling.) Sealing chart. (See Cbf.r^s.) Sealing fleet. (See Victoria fleet.) Sealinjf, logs of — - 1891 ., Pi incipal data for charts in Report 1802 Scaling vessels about Commander Islands in 1892 Seals. (See Fur-seals.) Seals lost. (Se.^ Pelagic sealing.) Seals lost by sinking Sealskin.s — Bundling of. (See Bundles of sealskins.) Counting of. (5fe Counting of skins.) Packing of ' Secrclary Elaine to Sir J. Paimcefcto ooizurts ; Certain, of sealing vessels admitted Cooper not injured by Place of Eeaeon, were made .... (See A'^essels seized.) Shedding of hair. (See " Stagey " seals.) Shotgun, general use of, in pelagic sealing Sinking, seals lost by .... .... Spring catch, average catch per boat in " Stagey " period " Stagey " seals : Alleged, not found in Mater Arc taken at sea .... Stampedes : No evidence of any .... Not a cause of death of pups Standard of weights : Average, since 1876 .... , Fell below average in 1889 for first time Reduced in 1889 Stanley- Brown, J., on when cows enter water Steam-vessels, licenses proposed for Suckling. (See Nursing.) Summer habitat, (."ype Winter habitat.) Surveillance. (See Bering Sea, control exercised over.) Surplus of virile male senls Table— Of average catch per boat and per man presented by report „ „ in spring catch Of catch per boat ond per man omits years 1885 and 1886 Table entitled "White Iliuiters"— Only gives seals lost by sinking Sources of Thornton, American ownership of rag*. 49 50 51 29 97 116 45 129 131 129 130 123 97 JOS 100 106 107 90 90 77 67 77 60 124i 74 107 108 107 07 97 130 ... 10, 21 , 22, 2-1 10,21. INDEX OF COUNTER C.iSR. Townsencl, C. II. — Exaininntion of seal.s bj E.vpericiice of, as to cow.s feeding .... On seals lost by wounding Translations — {See Erroneous translations.) Treat}' of 1824 between tlio United States and Eussia ,, 1825 between Great Britain and Bussia „ arbitration — British claims for damages under Article VIII ol Character of caso called for by .... Contemplates only case and counter case Counter case under .... Difference of views as to oTiject of .... How controversy resuUing in the, arose .... Main question involved is the protection of seals.... ... Questions submitted under Article VIII of Tribunal of arbitration — Jurisdiction of, as to regulations Tribunal of arbitration on Alabama claims, deeision of, as to speculative damages .... .... .... Ukase of 1799— Dirc-ted against foreigners .... Object of, to maintain colonial system Ukase of 1821 ' Construction of, by British government First referred to by Lord Salisbury Protests against Renewed declaration of colonial system Unfairness of British Commissioner.". (.SVe British Commissioners.) Use of rifle in sealing obsolete United States — Citizens of, interested in vessels seized Early claim of property in seals by Imposition practiced upon Reply of, to British case Restatement of their case necessary (See. Issues.) (See Jurisdiction? I controversy.) {See Right of protection and property in seals.) Views of, as to true issues Vessels seized : American ownership of By Russia in 1802 Ownei'ship of Alfred Addms „ Aiiiiri Berk .... „ Black Diamond „ Bosio'iitz, an American, in „ Cnroliii'i „ Dolphin „ Grncc t» l^'l.'l „ Pathfinder ... „ Sai/ward Thornton [? 151 j I'a^e. 80 (iO 9S i {See Boscowitz, Bochtel, and Frank.) 123 8 7 11 35 130 30 130 130 130 131 130 l;50 130 130 130 130 130 i|. • ..if .'11 152 INDEX OF COUNTER CASE. t t % r i r i ii k f k ii 1' i ' Vessels : , i • • . Seizure of sealing. (See Seizures.) Ves.iel8, steam, number of, in Victoria fleet ... Victoria fleet, steani vessels in W, P. Sayward. {See Sai/wa7'd.) Warning of sealers out of Bering Sea Warren, James Douglas, relations of Boscowitz, Cooper, and Waste of life. (See Pelagic sealing.) . •., .^ Weapons. (See Rifle and Shotgun.) • ^ Weight of Bundles. (See Bundles of sealskins.) , . Weight of sealskins. (See Standard of weights.) . ^^ , • , . Whalers : Closely watched by cruisers Protection of Bering Sea against Visits of, to Bering Sea „ ,, not inconsistent with position of United States White hunters : Licenses proposed for (See Pelagic sealing.) Table based on statements of Wilson, Sir Samuel, on nursing of lambs Williams, Maj. W. H., investigation of, as to number of skins in a bundle ... Winter habitat : Advanced by the Report Bulls do not resort to Data insufficient to establish Location of, alleged Object of advancing, by the British Commissioners Only resort to, by port-ion of seal herd Scaling begins below Seals followed through Used to estflblish property interest of Indians in seal herd Winter resort of bull -seals AVitnesses : Pelagic sealers, interested Wounding : , . Seals lost by Seals lost by, not considered by Report ?apadnie Rookery. (See Rookeries.) .m,.. rj;,!, Zone, protective — Increase of, by 10 miles for 10,000 decrease of quota Proposed by Report Page. 124 124 129 131 .... 126 24 24, 20-28 25 .... 123 97 54 .... 117 .... 100 .... 101 .... 102 .... TuO .... 101 .... 102 .... 103 .... 104 .... 101 .... 101 .... 81 98 .... 97 127 125 iW ■n I !tf8|t, f '■,■•■' ' * '0' c:e.G3SI^