ing to customs, commerce, and navigation," were "extended to and over all the mainland, islands, and waters of the territory ceded." It was also made unlawful for any person to "kill any otter, mink, marten, sable, or fur seal or other furbearing animal, within the limits of said territory, or in the waters thereof;" but the Secretary of the Treasury was empowered to authorize the killing of the mink, marten, sable, "or other fur-bearing animal, except fur seals," under such regulations as he might prescribe. It was made his duty "to prevent the killing of any fur seal" until it should be otherwise provided by law. By the act, or joint resolution, of March 3, 1869, the islands of St. Paul and St. George were "declared a special reservation for government purposes," and it was made unlawful for any person to land or remain on either of them without authority from the Secretary of the Treasury. By the act of July 1, 1870,2 entitled "An Act to prevent the extermination of fur-bearing animals in Alaska," the Secretary of the Treasury was directed to lease, for a term of twenty years, the right to engage in the taking of fur seals on the islands for an annual rental of not less than $50,000, and a tax of $2 on each fur-seal skin taken and shipped therefrom. The number of seals to be taken from the island of St. Paul was limited to 75,000 per annum, and from St. George to 25,000, and it was made "unlawful to kill any fur seal upon the islands of St. Paul and St. George, and in the waters adjacent thereto, except during the months of June, July, September, and October," or "to kill such seals at any time by the use of firearms, or use other means tending to drive the seals away from said islands," but the natives of the islands were permitted, subject to regulations to be prescribed by the Secretary of the Treasury, to kill such young seals as might be necessary for their own food and clothing during other months, and such old seals as might be necessary for their own clothing and for the manufacture of boats for their own use.

Act of 1889.

apply; nor did take place as to

In the statutes to which reference has just been made, no definition is attempted of the extent of the waters to which their provisions any international controversy subsequently the killing of fur seals in Behring Sea until

15 Stats. at L. 318; R. S. sec. 1954.

216 Stats. at L. 180; R. S. secs. 1960-1972.

1886. In 1889, however, while the question that was raised in 1886 was still pending, an effort was made to amend the law so as to make it "include and apply to" all the waters of Behring Sea east of the line described in the treaty of cession. On the 25th of February in that year Mr. Stockbridge introduced in the Senate a bill to amend section 1963 of the Revised Statutes of the United States, and to provide for the better protection of the fur-seal and salmon fisheries of Alaska. This bill was referred to the Committee on Fisheries, by whom it was reported with an amendment in the nature of a substitute on the 27th of February. When the Senate proceeded to its consideration, attention was called to the fact that the bill as amended related solely to the salmon fisheries, and not to the fur seals, and the title was changed so as to read, "A bill to provide for the protection of the salmon fisheries of Alaska." The bill was then passed and sent to the House of Representatives, where it was referred to the Committee on Merchant Marine and Fisheries. From this committee it was reported on the 28th of February by Mr. Dunn, of Arkansas, who at the same time offered an amendment by which it was proposed to declare that section 1956 of the Revised Statutes of the United States, which prohibits the killing of any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, "within the limits of Alaska Territory, or in the waters thereof," should "include and apply to all the waters of Behring Sea in Alaska, embraced within the boundary lines mentioned and described in the treaty with Russia, dated March 30, A. D. 1867, by which the Territory of Alaska was ceded to the United States." On the bill and this amendment Mr. Dunn asked the previous question, and after one or two inquiries the amendment was agreed to, and the bill as amended was passed.

When the amendment was laid before the Senate, Mr. Edmunds observed that it raised a very important and in some respects a difficult question, if it meant what those who advanced it intended it to mean. If it did not mean that, and only applied to the taking of seals by citizens of the United States in Behring Sea, while subjects of Great Britain were to be permitted to fish there, it made, he said, a very curious discrimination. He moved to refer the amendment to the Committee on Foreign Relations. This motion was supported by Mr. Hoar, who said that the amendment presented the great

question whether the United States proposed "to assert the doctrine of mare clausum in regard to a sea larger than the Mediterranean and the gateway to which is 450 miles wide.” Mr. Stockbridge expressed the hope that the bill and amendment would be referred. Mr. Morgan remarked that he did not understand that the amendment presented the question of mare clausum. He did not, he said, admit that "Russia's former assertion of the right to control the waters of the Behring Sea," was "entirely unjust, and that in purchasing Alaska we did not succeed to her rights in that particular." In his opinion the question presented by the amendment was simply "whether the United States, having on the Aleutian Islands very valuable fur-seal fisheries, have the right to protect those animals in seas that do not belong strictly to the mare clausum principle, and which are very valuable to commerce, against that kind of fishing and hunting that is utterly destructive of the whole of the generation of fur-seals." The bill was referred to the Committee on Foreign Relations without objection, and was reported back with the recommendation that the House amendment be disagreed to. Mr. Sherman, who, as chairman. of the committee, made the report, stated that this recommendation was not based upon any opinion as to the merits of the House amendment, but upon the fact that it had no connection with the bill itself, and ought to be considered separately. The amendment was then rejected, and a motion was made for a conference with the House of Representatives. This motion was agreed to, and Messrs. Sherman, Edmunds, and Morgan were appointed as conferees on the part of the Senate. In the House the conference asked for by the Senate was agreed to, and Messrs. Dunn, McMillin, and Felton were appointed as conferees. On the 2d of March a report of the conference was presented both in the Senate and in the House, and was agreed to. By this report section 1956 of the Revised Statutes of the United States was merely "declared to include and apply to all the dominion of the United States in the waters of Behring Sea," and it was made the duty of the President each year to issue his proclamation, warning all persons against entering those waters for the purpose of violating the provisions of that section, and to cause one or more vessels of the United States

Congressional Record, vol. 20, part 3, pp. 2282, 2372, 2426, 2448, 2502, 2563, 2614, 2672.

to cruise in the waters in question, and arrest all persons and seize all vessels found to be or to have been engaged in any violation of the laws of the United States therein.

The bill as thus amended and passed was approved by the President March 2, 1889.1

On the 3d of August 1870 the acting SecLease of the Seal retary of the Treasury, in pursuance of the Islands in 1870. act of July 1, 1870, leased the privilege of taking fur seals on the islands of St. Paul and St. George to the Alaska Commercial Company, a corporation organized under the laws of the State of California, of which Mr. John F. Miller was president. In consideration of this privilege, which was granted for twenty years from the 1st of May 1870, the company agreed to pay into the Treasury of the United States an annual sum of $55,000 and a tax or duty of $2 on each fur-seal skin taken and shipped by it, and also the sum of 62 cents for each fur-seal skin taken and shipped, and 55 cents a gallon for each gallon of oil obtained from the seals for sale on the islands or elsewhere and sold by the company. It also agreed to furnish certain provisions and maintain a school for the inhabitants of the islands of St. Paul and St. George. It engaged not to kill on the former island more than 75,000 fur seals annually, nor on the latter more than 25,000; nor to kill any fur seal on the islands in any other months than June, July, September, and October of each year; nor to kill seals at any time by the use of firearms or other means tending to drive them from the islands; nor to kill any female seal, or any seal less than one year old; nor to kill any seal in the waters adjacent to the islands or on the beaches, cliffs, or rocks where the seals haul up from the sea to remain. Apart from the prohibition to kill any seals "in the waters adjacent" to the islands of St. Paul and St. George, there was no reference in the lease to marine jurisdiction.

Mr. Boutwell's Letter of 1872.

On the 25th of March 1872 Mr. T. G. Phelps, the collector of customs at San Francisco, sent to Mr. Boutwell, then Secretary of the Treasury, a paragraph clipped from the San Francisco Daily Chronicle of the 21st of that month, in which it was stated that "parties in Australia" were "preparing to fit out an expedition for the capture of fur seals in Behring Sea;" that "a Victoria com

125 Stats. at L. 1009.

pany was organized for catching fur seals in the North Pacific;" and that an agent, representing some eastern capitalists, had been in San Francisco "making inquiries as to the feasibility of organizing an expedition for like purposes." Mr. Phelps said that, in addition to the several schemes mentioned in the Daily Chronicle, he had received information that an expedition was being fitted out in the Hawaiian Islands for the same purpose. He stated that it was well known that during the month of May and the early part of June, the fur seals in their migration from the southward to the islands of St. Paul and St. George uniformly moved through Unimak Pass in large numbers, and also through the narrow straits near that pass which separate several small islands from the Aleutian group. The object of the expeditions in question was to intercept the fur seals at these narrow passages, and there, by means of small boats manned by skillful Indians or Aleutian hunters, to slaughter the animals in the water after the manner of hunting sea otters. The evil to be apprehended from such a proceeding was not so much, said Mr. Phelps, the loss resulting from the destruction of the seals at those places, as their diversion from their accustomed course to the islands of St. Paul and St. George, which were their only haunts in the United States. He suggested whether the act of July 1, 1870, did not authorize interference by means of revenue cutters "to prevent foreigners and others from doing such an irreparable mischief to this valuable interest." On the 19th of April 1872 Mr. Boutwell replied that the Treasury Department had been advised that such an employment of the revenue cutters would not be “a paying one, inasmuch as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel," and that it was not apprehended that they would be driven from their accustomed resorts, even were such attempts made. "In addition," said Mr. Boutwell, "I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempts within a marine league of the shore. As at present advised, I do not think it expedient to carry out your suggestions, but I will thank you to commuuicate to the Department any further facts or information you may be able to gather upon the subject."

1

Papers relating to Behring Sea Fisheries, 124-126.