4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring 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 3-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 co-operate in securing the adhesion of other Powers to such Regulations.

ARTICLE VIII.

The High Contracting Parties having found themselves unable to agree upon a reference which shall include the question of the liabil ity 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; and, being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, do agree that 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.

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ARTICLE IX.

The High Contracting Parties having agreed to appoint two Commissioners on the part of each Government to make the joint investigation and Report contemplated in the preceding Article VII, and to include the terms of the said Agreement in the present Convention, to the end that the joint and several Reports and recommendations of said Commissioners may be in due form submitted to the Arbitrators, should the contingency therefor arise, the said Agreement is accordingly herein included as follows:

Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, all the facts having relation to seal life in Behring Sea, and the measures necessary for its proper protection and preservation.

The four Commissioners shall, so far as they may be able to agree, make a joint Report to each of the two Governments, and they shall also report, either jointly or severally, to each Government on any points upon which they may be unable to agree.

These Reports shall not be made public until they shall be submitted to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators can not arise.

ARTICLE X.

Each Government shall pay the expenses of its members of the Joint Commission in the investigation referred to in the preceding article.

ARTICLE XI.

The decision of the Tribunal shall, if possible, be made within three mouths from the close of the argument on both sides.

It shall be made in writing and dated, and shall be signed by the Arbitrators who may assent to it.

The decision shall be in duplicate, one copy whereof shall be delivered to the Agent of Great Britain for his Government, and the other copy shall be delivered to the Agent of the United States for his Government.

ARTICLE XII.

Each Government shall pay its own Agent, and provide for the proper remuneration of the counsel employed by it and of the Arbitrators appointed by it, and for the expense of preparing and submitting its case to the Tribunal. All other expenses connected with the Arbitration shall be defrayed by the two Governments in equal moieties.

ARTICLE XIII.

The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary officers to assist them.

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ARTICLE XIV.

The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration as a full, perfect, and final settlement of all the questions referred to the Arbi

trators.

ARTICLE XV.

The present Treaty shall be duly ratified by Her Britannic Majesty and by the President of the United States of America, by and with the advice and consent of the Senate thereof; and the ratifications shall be exchanged either at Washington or at London within six months from the date hereof, or earlier if possible.

In faith whereof, we, the respective Plenipotentiaries, have signed this Treaty, and have hereunto affixed our seals.

Done in duplicate, at Washington, the 29th day of February, 1892. JULIAN PAUNCEFOTE. JAMES G. BLAINE.

[L. S.] [L. S.]

OUTLINE OF ARGUMENT.

The general outline of the argument submitted to the Tribunal of Arbitration on behalf of Great Britain will be as follows:

That Behring Sea, as to which the question arises, is an open sea in which all nations of the world have the right to navigate and fish, and that the rights of navigation and fishing cannot be taken away or restricted by the mere declaration or claim of any one or more nations; they are natural rights, and exist to their full extent unless specifically modified, controlled, or limited by Treaty.

That no mere non-user or absence of exercise has any effect upon, nor can it in any way impair or limit such rights of nations in the open seas. They are common rights of all mankind.

In support of these principles, which are clearly established, and have never been seriously disputed by jurists, authorities will be cited.

That in accordance with these principles, and in the exercise of these rights, the subjects and vessels of various nations did from the earliest times visit, explore, navigate, and trade in the sea in question, and that the exercise of these natural rights continued without any attempted interference or control by Russia down to the year

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That in 1821 when Russia did attempt by Ukase, i. e., by formal declaration, to close to other nations, the waters of a great part of the Pacific Ocean (including Behring Sea) Great Britain and the United States immediately protested against any such attempted interference, maintaining the absolute right of nations to navigate and fish in the non-territorial waters of Behring Sea and other non-territorial waters of the Pacific Ocean. Both countries asserted that these rights were common national rights, and could not be taken away, or limited by Ukase, Proclamation, or Declaration, or otherwise than by Treaty.

That in the years 1824 and 1825, in consequence of these protests, Russia unconditionally withdrew her pretensions, and concluded Treaties with the United States and with Great Britain which recognized the rights common to the subjects of those countries to navigate and fish in the nonterritorial waters of the seas over which Russia had attempted to assert such pretensions.

That from the date of such Treaties down to the year 1867, (in which year a portion of the territories which had been referred to in and affected by the Ukase of Russia in the year 1821, was purchased by and ceded to the United States), the vessels of several nations continued, year by year, in largely increasing numbers, to navigate, trade, and fish in the waters of Behring Sea, and that during the whole of that period of nearly fifty years there is no trace of any attempt on the part of Russia to reassert or claim any dominion or jurisdiction over the non-territorial waters of that sea, but, on the contrary, the title of all nations to navigate, fish, and exercise all common rights therein was fully recognized.

That on the purchase and acquisition of Alaska by the United States in the year 1867, the United States were fully aware and recognized that the rights of other nations to navigate and fish in the non-territorial waters adjacent to their newly acquired territory, existed in their full natural state, unimpaired and unlimited by any Treaty or bargain whatever.

That, from the year 1867 down to the year 1886, the United States, while they lawfully and properly controlled

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and legislated for the shores and territorial waters of their newly acquired territory, did not attempt to restrict or interfere with the rights of other nations to navigate and fish in the non-territorial waters of Behring Sea or other parts of the Pacific Ocean.

That, under changed conditions of territorial ownership, and in view of certain new circumstances which had arisen in consequence of the growth of the industry of pelagic sealing in non-territorial waters, the United States reverted, in the first instance, to certain claims based upon those of the Russian Ukase of 1821, which the United States, together with Great Britain, had successfully contested at the time of their promulgation; but in the course of the discussions which have arisen, these exceptional claims to the control of non-territorial waters were dropped, and in

1

their place various unprecedented and indefinite claims. put forward, which appear to be based upon an alleged property in fur seals as such.

Finally, that while Great Britain has from the first strenuously and consistently opposed all the foregoing excep tional pretensions and claims, she has throughout been favourably disposed to the adoption of general measures of control of the fur seal fishery, should these be found to be necessary or desirable with a view to the protection of the fur seals, provided that such measures be equitable and framed on just grounds of common interest, and that the adhesion of other Powers be secured, as a guarantee of their continued and impartial execution.

ARRANGEMENT OF CASE.

It will be convenient to state the arrangement and order of the Case here presented on behalf of Great Britain.

ARTICLE VI.

The first three points of Article VI are as follows:

1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and excercise 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?

10 3. Was the body of water now known as the Behring 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 Sea, were held and exclusively exercised by Russia after said Treaty?

It is proposed in the first instance to deal with these points, which relate to the original claims by Russia to certain rights in Behring Sea, and the action of Great Britain respecting these claims.

HEADS OF ARGUMENT.

The questions therein raised will be considered under the following heads:

(A.) The user up to the year 1821 of Behring Sea and other waters of the North Pacific.

(B.) The Ukase of 1821 and the circumstances connected therewith leading up to the Treaties of 1824 and 1825. (C.) The question whether the body of water now known as Behring Sea is included in the phrase "Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia.

Chapter I.

Head A.

Chapter II.

Head B.

Chapter III.

Head C.

(D.) The user of the waters in question from 1821 to Chapter IV. 1867.

It is then proposed to consider point 4 of Article VI, which is as follows:

4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring 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?

Head D.

Chapter V.
Head E.

Chapter VI.
Head F.
Chapter VII.
Head G.

Chapter VIII Article VI, Point

5.

Article VIII.

This point will be considered under the following heads: (E.) What rights passed to the United States under the Treaty of Cession of March 30, 1867.

(F.) The action of the United States and Russia from 1867 to 1886.

(G.) The various contentions advanced by the United States since the year 1886.

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Point 5 of Article VI is as follows:

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 3-mile limit?

This will be briefly considered, but the proposition which appears to be embodied in this question is of a character so unprecedented that, in view of the absence of any precise definition, it is impossible to discuss it at length at the present time. It will, however, be treated in the light of such official statements as have heretofore been made on the part of the United States, its discussion in detail being necessarily reserved till such time as the United States may produce the evidence or allegations upon which it relies in advancing such a claim.

Article VII is as follows:

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 co-operate in securing the adhesion of other Powers to such Regulations.

The terms of this Article make it necessary that the consideration of any proposed Regulations should be postponed until the decision of the Tribunal has been given on the previous questions.

Beyond, therefore, demonstrating that the concurrence of Great Britain is necessary to the establishment of any Regulations which have for their object the limitation or control of the rights of British subjects in regard to seal fishing in non-territorial waters, it is not proposed to discuss the question of the proposed Regulations, or the nature of the evidence which will be submitted to the Tribunal.

With regard to the points raised under Article VIII 12 (which refer to questions arising out of claims for damages), it will be contended on behalf of Great Britain that the seizure of the ships was unlawful, and the Arbitrators will be asked to find that in each case the seizure took place in non territorial waters, that such seizureswere made with the authority and on behalf of the Government of the United States, and that the amounts of damages which Great Britain is entitled to claim on behalf of the owners, masters, and crews are the respective amounts stated in the Schedule of particulars appended to this Case.