Survey, and Dr. C. Hart Merriam, of the Smithsonian Institution, to investigate the same subject on the part of the United States. This concurrent action on the part of the two governments led at length to the conclusion by Mr. Blaine and Sir Julian Pauncefote, on the 18th of December 1891, of an agreement for the appointment of a mixed commission of experts. By this agreement it was provided that each government should appoint two commissioners to investigate, conjointly with the commissioners appointed by the other government, all the facts having relation to seal life in Behring Sea and the measures necessary for its proper protection and preservation; that the four commissioners should, so far as they might be able to agree, make a joint report to each of the two governments, and that they should also report, either conjointly or severally, to each government upon any points on which they might be unable to agree. It was provided, however, that the reports should not be made public until they should be submitted to the arbitrators, or until it should appear that the contingency of their being used by the arbitrators could not arise.1

Under this agreement Messrs. Mendenhall and Merriam were formally appointed as commissioners on the part of the United States, and Messrs. Baden-Powell and Dawson as commissioners on the part of Great Britain.2

of Arbitration.

Meanwhile negotiations continued for the Conclusion of a Treaty conclusion of a treaty of arbitration, which was finally signed on the 29th of February 1892. By the first article of the treaty it was provided that the questions which had arisen between the two governments "concerning the jurisdictional rights of the United States in the waters of Behring's Sea, and concerning also the preservation of the fur seal in, or habitually resorting to, the said Sea, and the rights of the citizens and subjects of either country as regards the taking of fur seal in, or habitually resorting to, the said waters," should be submitted to a tribunal of seven arbitrators, two to be named by the President of the United States, two by Her Britannic Majesty, and one each by the President of France, the King of Italy, and the King of Sweden and Norway. The arbitrators were required to be "jurists of distinguished reputation in their respective countries," and, if

possible, "acquainted with the English language." They were to meet at Paris within twenty days after the delivery of the counter cases of the contracting parties, and to proceed “impartially and carefully to examine and decide" the questions laid before them. It was further provided that all questions considered by the tribunal, including the final decision, should be determined by a majority of all the arbitrators. Each party was to name one person to attend the tribunal as its agent, to represent it generally in all matters connected with the arbitration.

By Articles III., IV., and V. provision was made for the submission of Cases, Counter Cases, and Arguments. By Article III. the "printed Case of each of the two parties, accompanied by the documents, the official correspondence, and other evidence on which each relies," was to be delivered in duplicate to each of the arbitrators and to the agent of the other party within a period not exceeding four months from the date of the exchange of the ratifications of the treaty. By Article IV. either party was permitted, within three months after the delivery on both sides of the printed Case, to present in like manner "a Counter Case, and additional documents, correspondence, and evidence, in reply to the Case, documents, correspondence, and evidence so presented by the other party." Provision was made, however, for au extension of sixty days for the filing of the Counter Case and its accompaniments, on the presentation of a proper application for that purpose. By Article V. it was made the duty of the agent of each party, within one month after the expiration of the time allowed for the delivery of the Counter Case on both sides, to present a printed argument "showing the points and referring to the evidence upon which his government relies." It was also provided that either party might support its printed argument before the arbitrators by oral argument of counsel; and the arbitrators were authorized, if they desired further elucidation with regard to any point, to require a written or printed statement or argument, or oral argument by counsel, upon it, the other party being entitled to reply in the same manner.

The questions submitted to arbitration were Questions of Right defined by Articles VI. and VII. By Article and of Regulations. VI. five questions were submitted for specific judgment. Article VII. referred to the arbitrators the subject of concurrent regulations, in case their judgment on the five questions in the preceding article should be adverse to

the United States. The text of Articles VI. and VII. is as follows:

"ARTICLE VI.

"In deciding the matter submitted to the Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit:

"1. What exclusive jurisdiction in the sea now known as the Behring's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?

"2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?

"3. Was the body of water now known as the Behring's Sea included in the phrase 'Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring's Sea were held and exclusively exercised by Russia after said Treaty?

"4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring's Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty?

"5. Has the United States any right, and if so, what right of protection or property in the fur seals frequenting the islands. of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit?

"ARTICLE VII.

"If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination the report of a Joint Commission to be appointed by the respective Governments shall be laid before. them, with such other evidence as either Government may submit.

"The High Contracting Parties furthermore agree to coöperate in securing the adhesion of other Powers to such regulations."

Question of Damages.

Article VIII. of the treaty related to damages, which had formed a subject of much difficulty and occasioned not a little delay in the negotiations. By this article it was provided that the high

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contracting parties, "having found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, either may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation." In Article IX. of the treaty the provisions which were agreed upon on the 18th of the preceding December, in relation to the appointment of a joint commission of experts, were incorporated. It has been seen that Article VII. provided that, in determining what concurrent regulations, if any, were necessary for the protection of the seals, the report of the joint commission should be laid before the arbitrators, with such other evidence as either government might submit.

Joint Commission of Experts.

New Modus Vivendi.

On February 2, 1892, nearly a month before Discussion as to a the conclusion of the treaty of arbitration, Mr. Blaine proposed to Sir Julian Pauncefote the adoption of a new modus vivendi for the ensuing fishery season. It appears that in the discussion leading up to the agreement for a joint commission of experts, as concluded on the 18th of December 1891, and subsequently embodied in Article IX. of the treaty of arbitration, it was suggested that the subject of a modus vivendi might be considered by the commissioners. The joint commission held its first meeting, which was in the nature of a preliminary conference, on the 8th of February 1892. At the second preliminary conference, held on the 11th of February, the American commissioners, Messrs. Mendenhall and Merriam, under instructions from their government, proposed the discussion of a modus vivendi. The British commissioners, Messrs. Baden-Powell and Dawson, declined to enter into the subject, on the ground that it was not within their powers, but belonged to the two governments. When informed of this decision, Mr. Blaine addressed a note to Sir Julian Pauncefote, expressing his surprise and saying that an early assembling of the commissioners had been urged on the ground "that they could provide a modus vivendi that would be sufficient, while the arbitration should go on with plenty of time to consider the various points." Sir Julian, however, replied that the authority of the joint commission

was limited by the terms of the agreement under which it was organized; that, while he had certainly urged, as an additional reason for an early meeting of the joint commission, that its reports would furnish valuable materials for such discussion, the commissioners could not properly deal with the question of a modus vivendi without special authority from their governments; and that he had communicated to Lord Salisbury the proposal made by Mr. Blaine on the 2d of February that the two governments should agree on a modus vivendi, and was awaiting his lordship's reply. When Lord Salisbury's reply was received, it was found to be to the effect that Her Majesty's government could not express any opinion on the subject of a modus vivendi until they knew what the United States desired to propose. Mr. Blaine answered that the President desired to suggest "that the modus should be much the same as last year in terms, but that it should be better executed." Lord Salisbury, however, maintained that "so drastic a remedy" was unnecessary, and suggested as a temporary measure for the ensuing season the prohibition of all killing at sea within a zone of not more than thirty nautical miles around the Pribilof Islands, such prohibition being conditional on the restriction of the number of seals to be killed for any purpose on the islands to a maximum of 30,000. To this proposal the President strongly objected. Before the agreement for arbitration was reached, the prohibition of pelagic sealing was, he said, a matter of comity; from the moment the agreement was signed, it became, in his opinion, a matter of obligation; and he declared that, while the United States would abide by the judg ment of the tribunal which had been agreed upon, it could not be expected to suspend pending the arbitration the defense of the property and jurisdictional rights which it claimed. On the same ground the President declined to entertain a proposal that the taking of seals in Behring Sea should continue on condition that the owner of every sealing vessel should give security for satisfying any damages which the arbitration might adjudge. As a result of this correspondence Lord Salisbury presented another proposition, out of which an agreement finally grew. Her Majesty's government, he said, concurred in thinking that when the treaty should have been ratified there would arise a new state of things, but that until it was ratified their conduct was governed by the language employed

For. Rel. 1891, 612-613.