The
United States stands distinguished among the nations as the foremost champion of international arbitration.
Our ablest and wisest statesmen have recognized it as the best way of adjusting most questions of difference arising between governments, when the ordinary diplomatic methods fail.
Such being the settled policy of the country, it would be unfortunate for the cause of peace and civilization in the world if that policy should be prejudiced in the
United States for want of correct information or through partisan bias.
One of the last arbitrations in which the
United States participated was that held at
Paris in 1893 for the settlement of the questions which had arisen with
Great Britain respecting the fur-seals of the
Pribyloff Islands in
Bering Sea; and the impression seems to prevail with many of our people that this arbitration was unwisely entered upon, that it was fruitless in its results to us, and that the responsibility for the failure is chargeable to the administration which agreed to it. Every one of these conclusions is incorrect, and in the interest of the great cause of international arbitration, their fallacy should be exposed.
It is well, in the first place, to examine the origin of the controversy.
Alaska was ceded by
Russia to the
United States in 1867, and in 1870 the seal islands in Being Sea were leased by the government to a private company, with the privilege of taking on the land a certain number of seals annually.
Soon thereafter it became apparent that the seal herd was exposed to serious diminution by means of pelagic or open-sea hunting.
As early as 1872 the attention of the government was called to this danger, and it was suggested that a revenue-cutter be sent to cruise in the vicinity of the passes of the Aleutian chain, through which the herd travelled on its way to and from the seal islands, with a view of preventing such hunting.
But
Mr. Boutwell,
Secretary of the Treasury, declined to act upon the suggestion, stating: “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 the attempt within a marine league of the shore.”
With the progress of time pelagic hunting increased along the
Canadian and
American coasts, with greater slaughter of the herd, and with occasional incursions into
Bering Sea.
There was gradually developed a contention that the principle laid down by
Secretary Bout-well did not apply to
Bering Sea, because
Russia had claimed and enforced exclusive jurisdiction over all its waters, that it had been acquiesced in by the maritime nations, including G/un>reat Britain, and that all the rights of
Russia therein passed to the
United States by the cession.
The act of Congress of 1868 (Section 1,9）56) made it unlawful to kill seals “within the limits of
Alaska Territory or
in the waters thereof,” and it was claimed that the waters of
Alaska embraced all that portion of
Bering Sea east of the line designated in the
Russian treaty of cession.
Under the foregoing construction of the treaty and the statute, the first seizure of British vessels in
Bering Sea took place under instructions of the
Secretary of the Treasury by the revenue vessels in 1886, and other seizures followed in 1887.
Suits were instituted in the federal court at
Sitka under the act cited, and the vessels were condemned.
The judge, whose tenure of office under the practice in vogue as to that Territory was limited to the political administration which appointed
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him, following the line of argument submitted by the
district attorney in a brief prepared in the office of the
Attorney-General, held that “all the waters within the boundary set forth in the treaty . . . are to be considered as comprised within the waters of
Alaska, and all the penalties prescribed by law . . . must therefore attach within those limits.”
He further held that “as a matter of international law, it makes no difference that the accused parties may be subjects of
Great Britain.
Russia had claimed and exercised jurisdiction over all that portion of
Bering Sea . . . and that claim had been tacitly recognized and acquiesced in by the other maritime powers of the world.”
The seizure and condemnation of the British vessels were followed by an attempt to secure a more precise and strict definition of “the waters of
Alaska” by congressional legislation.
A lengthy investigation was Had by a committee of the House of Representatives in 1888; in in January, 1889, a report was made by
Mr. Dunn, of
Arkansas, chairman of the committee, fully sustaining the view taken by the
Attorney-General and the federal judge in
Alaska, and submitting a bill which declared “that Section 1,956 of the
Revised Statutes of the
United States was intended to include and apply to, and is hereby declared to include and apply to, all waters of
Bering Sea in
Alaska embraced within the boundary lines” of the treaty with
Russia.
This bill was passed by the
House, but in the Senate it was sent to the committee on foreign relations, and that committee recommended that the clause above quoted be disagreed to; and the chairman,
Mr. Sherman, in support of the recommendation, stated that the proposed legislation “involved serious matters of international law . . . and ought to be disagreed to and abandoned.
and considered more carefully hereafter.”
Subsequently, by virtue of a conference report, an act was passed declaring Section 1,956 to include and apply “to all the dominion of the
United States in the waters of
Bering Sea.”
The seizure and condemnation of vessels, as stated, constitute the origin and foundation of the complaint of the
British government, and of the lengthy correspondence and negotiations which resulted in the arbitration at
Paris.
These seizures were the act of the administration of
President Cleveland.
and had the endorsement of the executive, politico-judicial.
and legislative departments of that administration.
In so far as the views of the opposing political party may be inferred from the attitude of
Secretary Boutwell and
Senator Sherman.
they were against the legality or wisdom of the policy.
The complaint of
Great Britain in 1887 was 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 o(f the seals from extermination. \With this proposition pending, and with all the questions arising out of the seizures unsettled, the executive government of the
United States passed into the hands of
President Harrison,
Mr. Blaine, on assuming the duties of
Secretary of State, sought to carry into effect the proposition of his predecessor for an international agreement.
He found that few of the governments approached had shown any interest in the proposition, but early in the administration he pressed the subject upon the attention of
Great Britain, and as soon as possible secured a joint conference at
Washington with the
British and
Russian ministers.
After prolonged interviews the conference proved a failure, as
Great Britain was unwilling to enter into any international agreement which the two other interested powers felt was at all adequate to protect the seals from extermination.
The measure which
Secretary Bayard had initiated for the settlement of the questions arising out of the seizure of British vessels having proved impossible of realization.
there seemed no other alternative but to defend the action of the )previous administration and thereupon followed the notable diplomatic correspondence between
Mr. Blaine and Lord Salisbury, in which the former sought with all his recognized forensic skill to defend the action of the
Secretary of the Treasury in ordering the seizures and, as far as he felt it possible to do so. to sustain the correctness in international law of the attitude of the
Attorney-General and the judge of the federal court of
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Alaska.
In no part of that statesman's career did his devotion to his country more conspicuously rise above partisanship than in that correspondence.
It is doubtful if any living American could have made a more brilliant or effective defence of the action of his government, and whatever fallacies exist in his argumient are chargeable to the previous administration which had occasioned the controversy and marked out the line of defence.
The correspondence showed the two governments in hopeless disagreement.
Three courses were open to
President Harrison, and one of them must be chosen without further delay: First, he could abandon the claim of exclusive jurisdiction over
Bering Sea or protection of the seals beyond the 3-mile limit, recede from the action of his predecessor as to seizure of British vessels, and pay the damages claimed therefor.
Such a course would lave met with the general disapproval of the nation, and would have been denounced by his political opponents as a base betrayal of the country's interests.
Second, he could have rejected the arguments and protests of the
British governnment, and continued the policy initiated by his predecessor in the seizure of all British vessels engaged in pelagic sealing in
Bering Sea.
But this course had already been proposed to
President Cleveland, and decided to be improper.
The Hon. E. J. Phelps who, as minister to
Great Britain, had conducted the negotiations with Lord Salisbury growing out of the seizures of 1886 and 1887, in a lengthy despatch to
Secretary Bayard.
reviewing the conduct of
Canada which had prevented an adjustment once accepted by Lord Salisbury, made the following recommendation: “Under these circumstances, the government of the
United States must, in my opinion, either submit to have these valuable fisheries destroyed, or must take measures to prevent their destruction by capturing the vessels employed in it. Between these two alternatives it does not appear to me there should be the slightest hesitation. . . . I earnestly recommend, therefore, that the vessels that have been seized while engaged in this business be firmly held, and that measures be taken to capture and hold every one hereafter found concerned in it. . . . There need be no fear that a resolute stand on this subject will at once put an end to the mischief complained of.”
But this recommendation of
Mr. Phelps was not approved by
Mr. Bayard, who was unwilling to adopt a course which might bring about a rupture with
Great Britain, the probable outcome of which would have been an armed conflict.
In view of this decision and the state of public sentiment, with a prevailing opinion in a large part of the press and with public men that the attitude of the government was legally unsound, and that the interests involved did not, under the circumstances stated, justify the hazard of a great war between these.
two English-speaking nations, the adoption of this second alternative by
President Harrison would have been the height of madness.
The only remaining alternative was arbitration.
President Harrison felt that if we could commit to an international tribunal the far greater interests and principles involved in the
Alabama claims, it would be the part of wisdom to adopt the same course as to the pending questions of difference, and there can be no doubt that the sober judgment of the country confirms his action.
If, therefore, the
Paris arbitration was unwise in any of its features, it must have been in the manner of submission of the questions to the tribunal.
But in this respect, also, the conduct of
President Harrison was greatly restricted by the action of his predecessor.
He was required to formulate for the decision of the tribunal the contentions upon which the seizures were made, and the first four points embraced in Article VI.
of the treaty will be found to cover accurately the grounds upon which the
Attorney-General in 1887 asked for. and the federal judge based, the condemnation of the British vessels.
It is a singular incident that when the case of the
United States came to be prepared and the
Russian archives were examined, what had been assumed in the legal proceedings to be historical facts could scarcely be substantiated by a single official document.
It is also notable that the only additional question introduced in the treaty provision for submission to the tribunal — that embraced in the fifth point, to wit, the right of protection or property in the seals, and which in
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the judgment of the counsel of the
United States became the leading, if not the only, defence of the seizures — was not advanced in the legal proceedings of 1887, and was not mooted until a late stage of
Mr. Blaine's controversy with Lord Salisbury.
The chief credit for the development of this point is due to
Mr. Tracy,
Secretary of the Navy, who submitted a paper of rare legal ability on the subject to the
President.
The treaty after having undergone the careful scrutiny of the
President and
Hon. E. J. Phelps, whose advice had been sought by the president, was submitted to the Senate and approved by that body without a single dissenting voice, so far as is known.
If the conduct of the
President, in the management of the controversy created by his predecessor, had not been in the judgment of the country wise and patriotic, or if the provisions of the treaty had not been properly framed, it would scarcely have escaped the attention of his political opponents in the Senate.
Hence, the only remaining criticism which might be advanced against the arbitration must relate to the management of the case before the tribunal.
But in this respect also it must be recognized that the
President's action was circumspect and free from all partisanship.
In naming the arbitrators on the part of the
United States, he chose, with the cordial approval of the
Chief-Justice and his associates,
Mr. Justice Harlan.
of the Supreme Court, as senior American member of the tribunal.
In filling the second place he selected
Senator Morgan, the recognized leader of all international questions in the Senate of the party whose officials had originated the subject-matter of arbitration.
Hon. E. J. Phelps,
President Cleveland's minister in
London, an experienced diplomatist, and a lawyer of national repute, had been consulted by the
President several months before the treaty had been agreed upon, and when the cease came to be prepared he was named as senior counsel.
With him was associated
James C. Carter, of New York, the recognized leader of the
American bar; and before the tribunal was organized
Frederic R. Coudert, an accomplished French scholar and a prominent jurist, was added to the list.
These three gentlemen were the political friends of
Mr. Cleveland. With them was joined a single party friend o(f
President Harrison,
H. W. Blodgett, for many years a distinguished judge of the Federal Court.
Senator Morgan, in a subsequent letter, wrote: “Our party was and is responsible for using the means that were employed both for the raising and the settlement of these questions, and it was a just measure of responsibility that
Mr. Harrison devolved upon us when, out of a body of arbitrators and counsel, and
Mr. Secretary Foster, the agent, selected by him--seven in all — he selected four Democrats and three Republicans.”
As to the manner in which these gentlemen discharged their trust, we have the following testimony of
Mr. Justice Harlan, in a public address: “I may say that no government was ever represented upon any occasion where its interests were involved with more fidelity, with more industry, and with greater ability than was the
United States by its agent and counsel. . . . If more was not obtained is was solely because a majority of that tribunal . . . did not see their way to grant more.”
On five points submitted to the tribunal, embracing the historical and legal questions, the decision was unfavorable to the
United States.
While the action of the government in making the seizures was based on the weakest ground of our defence, which proved untenable, it cannot be doubted that the motives which actuated its conduct were patriotic and praiseworthy.
But had our effort to save the seals from destruction been from the outset based upon a right of protection and property in them, our case before the tribunal would have been much stronger and the decision might have been different.
Nevertheless, it cannot be justly claimed that the arbitration was fruitless in its results for us. It is no small matter that a question which threatened a rupture of our peaceful relations with
Great Britain was adjusted by a resort to the arbitrament of reason and not of force.
The Alaskan seal herd is of great value to us and to the world, and it is the duty of our government to be vigilant in protecting it from destruction: but the legal issues involved in our controversy with
Great Britain regarding them did not seem to justify the hazard of an armed
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conflict, and it was a great gain to us that the controversy was peacefully settled without national dishonor.
The decision of the tribunal was adverse to the
United States on the legal points in dispute, but the award contained an important provision for international regulations, which were intended by the tribunal to be a protection to the seals, and which in the judgment of the majority of that body would in practice prove an adequate protection.
The agent and counsel of the
United States contended that no regulations would be a certain protection of the herd which did not prohibit all pelagic sealing, and the
American arbitrators voted for such prohibition, and sustained their votes by very able and cogent opinions; but the majority of the tribunal took a different view of the subject.
The regulations adopted were opposed both by the
American and
Canadian arbitrators.
When first published they were accepted by all the
Americans who participated in the arbitration as a decided triumph for the
United States, and were regarded by the
Canadian sealers as a serious menace, if not a death-blow, to their interests.
If they are carefully examined they will be found to be more favorable to the
United States than the regulations which
Mr. Bayard proposed to Lord Salisbury as a settlement of the question, or which
Mr. Blaine offered to
Sir Julian Pauncefote.
If, therefore, we obtained more from the tribunal than our government proposed to accept from
Great Britain, the arbitration cannot justly be characterized as fruitless in its results for us. The adequacy of the regulations cannot be properly judged, because they have not yet been put in force in their true spirit and intent.
This will not be done until they are also made to apply to the
Russian waters, and until more stringent rules for their enforcement are adopted.
It has been a source of disappointment to many who have taken an interest in the preservation of the seals that these rules have been so lax and so imperfectly observed.
The obstruction in these respects is now, as it has been from the beginning, the selfish and inhuman conduct of
Canada.
As it has been shown by the foregoing review that the
Paris arbitration was not unwisely entered upon, that it was not altogether fruitless in its results for us, and that the administration which agreed to it cannot be held culpable for the manner of its submission or management.
But it will naturally be expected that something be said concerning the question of damages, a subject which was not settled by the award.
In Article VIII.
of the treaty it was expressly stipulated that “the question of liability of each for the injuries alleged to have been sustained by the other” should not be embraced in the arbitration, but should “be the subject of future negotiation.”
In the discussion following the adjournment of the tribunal, the fact seems to have been lost sight of that the
United States preferred serious claims for damages against
Great Britain on account of the injuries done by British pelagic sealers to the
Alaskan seal herd, and that
President Harrison proposed that this question of damages should, together with the
British claims for seizure of vessels, be submitted to the tribunal.
It was because
Great Britain refused to consent to arbitrate this claim that the whole subject was omitted.
The award of the tribunal was in effect that in certain waters, and at certain times, pelagic sealing is improper and should not be permitted.
How far the claim of the
United States subsists for injuries in the past sustained by the seal herd in those times and waters is one of the questions to be determined by the “future negotiations” contemplated in the treaty; and prominent persons well informed as to the controversy contend that it is still a vital question.
While the liability for damages was not within the jurisdiction of the tribunal, it is generally admitted that the effect of its decision was to fix upon the
United States a certain measure of responsibility for damages on account of the seizures.
which would have to be met through the “future negotiations.”
Without further investigation than the documentary evidence before the
Paris tribunal, the sum of $425,000 was agreed upon between the
Secretary of State and the
British ambassador as a full satisfaction of the claims for the seizure of the British vessels, and the Congress of the United States was asked to make an
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appropriation for that purpose.
In the discussion which arose in the House of Representatives when the subject came before that body, it was most unfortunate that it should have assumed a partisan aspect.
When certain members argued that the sum asked for was greatly in excess of the just and legal claims of the
Canadian sealers, and that it was in direct conflict with the views of the agent and counsel of the
United States before the tribunal, they were taunted with the charge that this obligation had been contracted by the administration of which they were supporters.
The member of the committee on appropriations who had the measure in charge said: “This is not our foreign policy.
We are paying a debt which you gentlemen gave us.”
Mr. McCreary, chairman of the committee on foreign affairs, in advocacy of the appropriation.
used this language: “regret that we have been placed in an attitude where we have to pay this amount; but the gentlemen on the other side of this
House cannot claim that we caused the existing situation.”
How unwarranted were these assertions is shown in the foregoing review.
It may have been the wisest policy to vote the appropriation, but it was no breach of our international obligations not to approve of that sum; and it is not to the discredit of Congress that it exercised its judgment as to the action of the executive in agreeing to a settlement with
Great Britain which altogether ignored the claim of the
United States for damages to the seals by improper pelagic hunting, and the views of its own representatives before the tribunal as to the
British claims.
While a difference of views may properly exist between the executive and legislative departments upon these subordinate questions, no disposition has been entertained or shown by any portion of our government or people to evade our just obligations under the treaty.
And the fact that the spirit of the award leads us to pay out of the national treasury a sum by way of damages, which at the most must be regarded as insignificant for a great nation, should certainly have no tendency to modify in the slightest degree our devotion to the great policy of international arbitration.
