CHAPTER XXVI

THE BERING SEA ARBITRATION

HISTORY OF THE QUESTION

DURING 1890 and 1891, while my time was absorbed with the reciprocity negotiations, Secretary Blaine was largely engaged, first in negotiations with the British Minister and, afterwards, in an animated correspondence with Lord Salisbury over the questions of jurisdiction in Bering Sea and the protection of the fur-seals which have their habitat in that sea. The negotiations and correspondence finally resulted in an agreement to submit the questions at issue to arbitration. Just at this stage of the negotiations, Mr. Blaine fell ill and was incapacitated for active service for some months; and President Harrison asked me to take charge of the business.

Mr. Blaine had already agreed upon and signed with Sir Julian Pauncefote a draft of the questions to be submitted to arbitration. My task was to frame a treaty embodying these questions and making provision for the arbitration, negotiate a modus vivendi as to the seal herd pending the arbitration, and to prepare the case of the United States before the Tribunal of Arbitration.

The acquisition of Alaska from Russia in 1867 brought upon us not only the bitter controversy with Great Britain respecting the fur-seals, but also that other animated controversy relative to the Alaskan boundary. We learn from the declarations of Secretary Seward, who negotiated the acquisition, of Senator Sumner, who procured its ratification by the Senate, and of Mr. C. M. Clay, our Minister in St. Petersburg at the time, that the motive of both the United States and Russia in the transfer of the territory was to check the growing power of Great Britain on the continent of North

America. It is a curious fact that out of this transfer grew the two controversies of this generation which arrayed the two English-speaking nations in a hostile attitude to each other, but which happily were adjusted by peaceful methods.

At the time of the cession the best-known and chief products of Alaska were furs, and of these by far the most valuable were those obtained from the fur-seal herd of the Pribiloff Islands, a group of small islands in Bering Sea. Under the Russian régime the care of the herd and the taking and marketing of the skins had been reduced to a system of great perfection, acquired by many years of experience and observation.

One hundred and fifty years ago the fur-seals, one of the most valuable of all fur-bearing animals, were the most widely distributed throughout the world and most numerous of that species of animals. Besides those in Bering Sea, they were found on the islands along the coast of Mexico, South America, in the Antarctic seas, along the coast of Africa, the Indian Ocean, Australasia, and the northern coast of Asia. In some of these localities they were reported, when discovered, as swarming on the shores, and numbering in places several millions.

Towards the close of the eighteenth and for some time in the nineteenth century sailing-vessels engaged in the taking of the skins of the seals; and as at that early period after the discovery of those regions no governmental authority was exercised for their protection, the seals were slaughtered on land indiscriminately and in great numbers. In no part of the world was protection extended to those valuable animals except by Russia in the North Pacific Ocean, and in a few decades they were utterly destroyed for commercial purposes in all other regions. Only in the Commander Islands on the Russian side of Bering Sea and in the Pribiloff Islands did they continue to exist in any considerable numbers.

When the Pribiloff Islands, called by the Russians "the

golden islands," because of their fruitful yield of furs, passed into the possession of the United States, the same system of protection and husbanding of this industry was adopted which had been so successfully followed by the Russians. No seals were allowed to be killed in the water, but only on the land, and then only at a specially appointed season of the year. No female seals were ever killed, but as they were polygamous in their habits a considerable number of the males of suitable age could be taken without diminishing the number of newborn seals or materially reducing the size of the herd.

For some years before the cession of Alaska the Russians were able to take approximately one hundred thousand skins annually from the Pribiloff Islands, and after the cession, up to the year 1890 under the American régime, the annual yield was about the same. For the same period the value of the skins taken by the American lessees was estimated to have been $31,000,000, and the receipts of the Government of the United States from the lease and duties $12,000,000.

During the entire Russian régime the Pribiloff Islands were carefully guarded, no intercourse was permitted except by authorized persons, whaling and other vessels were excluded from the adjoining waters, and the seal-herd was exempt from attack even during its annual migration into southern waters. The same conditions continued during the first ten years of the American occupation.

But about the year 1880 Canadian and some American vessels began to attack the herd in the sea as it passed up the American coast on its way to the Pribiloff Islands, and to kill the seals for their skins. Yearly the sealing-vessels increased in numbers, and in 1885 they entered Bering Sea in pursuit of the herd, followed the seals up to the Pribiloff Islands, remained in that sea during the summer, and continued their slaughter when the seals temporarily left the islands in search of fish-food upon which they subsisted. The practice of hunt

ing the seals in the water, termed pelagic sealing, tended to the extermination of the herd, first, because the taking of the seals in that manner was necessarily indiscriminate, the old and young, males and females, being killed; and, second, because only a portion of the seals killed or wounded were secured, the others sinking and being lost.

The effect of pelagic sealing began to manifest itself in 1885 in a marked diminution of the herd on the Pribiloff Islands, and each succeeding year the effect was more and more apparent. The sealing industry on those islands was conducted by a company, known as the Alaska Commercial Company, under a lease from the United States, and the steady decrease of the herd alarmed the company, as it threatened seriously to affect its profits and its ability to pay the Government tax under the lease. Hence it appealed to the Government of the United States to exercise its authority to protect the industry and preserve the herd from destruction.

Accordingly in 1886 a few vessels were seized by the United States revenue cutters, and in 1887 a still larger number, the majority of them being Canadian. They were taken into Sitka and there condemned by the United States Court, with their cargoes of skins, and sold. All these seizures were made on the high seas more than one marine league from shore. The ground of the condemnation by the court was that pelagic sealing was a violation of the Act of Congress which made unlawful the killing of "fur-seals, or other fur-bearing animal, within the limits of said territory [Alaska], or in the waters thereof."

In answer to the objection of the Queen's Counsel, who appeared for the Canadian vessels, that the vessels when seized were on the high seas and beyond the jurisdiction of the United States, the court held that all the waters of Bering Sea were within the jurisdiction of the United States. The judge based his decision upon the fact that in the treaty of cession the western boundary of the territory and dominion

of the United States was fixed at the one hundred and ninetythird degree of west longitude; that Senator Sumner, in his speech at the time of the approval of the treaty, referred to the waters east of that line as "our part of Bering Sea," thus indicating the understanding of the negotiators; and that Congress in its legislation had so treated the matter by extending jurisdiction over it. The judge further stated as a historical fact that Russia had exercised exclusive jurisdiction over Bering Sea, had protected the seals in those waters by rigorous laws, in which Great Britain had acquiesced, and that the United States succeeded to all the rights theretofore enjoyed by Russia.

These seizures led to strong protests on the part of the British Government and the presentation of claims for damages, followed by a diplomatic correspondence, in which Secretary Bayard, without discussing or yielding the grounds upon which the seizures had been made, proposed an international arrangement for the protection of the seals from extermination. Mr. E. J. Phelps, our Minister in London, also conducted negotiations, in which an agreement was practically reached with the British Government, but failed because of the protest of Canada.

The presidential election of 1888 brought the Republican Party back into power, and Secretary Blaine was confronted with this unsettled diplomatic question. The negotiations were transferred from London to Washington, and a series of conferences took place in 1889, between Mr. Blaine, Sir Julian Pauncefote, and M. (afterwards Baron) Rosen, the Russian representative, with a view to reaching a comprehensive arrangement for the protection of the Russian and American herds, the only remaining ones of any importance in the world.

It soon became apparent that no satisfactory agreement could be reached with Great Britain, and Mr. Blaine then sought to enlist the Russian Government in a plan which he