The eighth article of the treaty left the question of liabilities for injuries alleged to have been sustained by the citizens of either country in connection with the arrests and condemnation of the English sealing vessels to be determined by the arbitrators upon the submission to them of all the facts.

Agreeably to the terms of the ninth article of the treaty, by which "Each government shall appoint two commissioners to investigate conjointly with the commissioners of the other government all the facts relating to seal life in Bering Sea, and the measures necessary for its proper protection and preservation," Sir George Baden-Powell, Member of Parliament, and Dr. Dawson were retained by Great Britain, as were Dr. Merriam and Professor Mendenhall by the United States, to act as such commissioners. With full instructions to investigate thoroughly the conditions of seal life and to ascertain what permanent measures were necessary for the preservation of the fur-seal species in the North Pacific Ocean, the joint commission proceeded to Bering Sea and set to work gathering material for the use of their respective governments in the arbitration trial to be held in Paris. It is not a little remarkable that side by side four scientists prosecuting the same line of inquiry, considering together the same evidence, and reading together the same incontrovertible facts, should have arrived at such widely different conclusions. The impartial observer must yield to the suspicion that the conclusions of the commissioners were colored by a desire to further the interests of their countries, and that their scientific investigation had not been wholly free from a trace of diplomacy. The American commissioners found overwhelming evidence to establish in their minds beyond all questions of doubt the fact that the seal herd had greatly diminished in size, and that such condition had been chiefly brought about by the destructive practice of pelagic sealing They consequently recommended its entire suppression. Subsequent history has proved the correctness of these conclusions, and it is to be regretted that the case in Paris was complicated by the radically differing report of the British commissioners. They, on the other hand, somewhat begrudgingly admitted a

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falling off in seal life, for which circumstance they insisted that the killing on the islands by the American company was the main cause, and they also discovered that pelagic sealing in itself was not necessarily destructive to the herd. As a remedy, if indeed a remedy were called for by existing conditions, they proposed severe restrictions in relation to the number of seals annually taken upon the islands, and as an area of protection to the seals, recommended a marine belt of ten miles about the Pribyloff Islands, within which no pelagic sealing should be permitted.

These two very contradictory reports necessarily formed the basis for the consideration of the Paris tribunal, whose office it was to determine a future course of action looking to the preservation of seals in Bering Sea.

The arbitrators

The tribunal met in Paris in the spring of 1893, and continued its sessions well into the summer. chosen were Baron de Courcel (France), Marquis Emilio Visconti-Venosti (Italy), M. Gregario W. W. Gram (Sweden and Norway), Lord Hannan and Sir John S. D. Thompson (England), and Justice John M. Harlan and Senator John T. Morgan (United States). The American case was conducted through the agency of the Hon. John W. Foster (who had succeeded Mr. Blaine as Secretary of State), together with Edward J. Phelps, James C. Carter, Frederick R. Coudert, and Henry Blodget as counsel.

Although it had been expressly disavowed by Mr. Blaine that the United States put forth any claim to mare clausum over the Bering Sea, it is nevertheless impossible to consider the American position before the tribunal in Paris as otherwise than an attempt to justify such a contention. While no direct and formal allegation of the applicability of the principles of mare clausum appear in the proceedings, the United States nevertheless sought to make good its position in Bering Sea by maintaining the propriety of early Russian assertions of dominion over those waters, or over at least a hundredmile belt about their shores. These Russian claims in Bering

Sea cannot well be regarded other than assertions of mare clausum; and the attitude of the United States, taking shelter behind these early Russian assumptions, necessarily committed her in defence of those claims and principles. Again, the United States, in attempting to justify herself for having exercised an alleged right of search upon vessels of a friendly nation outside of her own legally recognized territorial waters, and in the absence of treaty stipulations authorizing her to do so, necessarily claimed sovereignty over the sea wherein the acts of visit and search had been committed. There can be no right of police over the high seas in times of peace other than as directed against suspected common enemies or pirates, and its exercise must assume proprietorship.

In the early days of Spanish and Portuguese exploration and conquest, vast oceans were demanded as the property of the State. With the growth of the British navy, certain exaggerated claims to marine proprietary rights were, for a period, advanced by England; but the spirit of modern times has been so decidedly hostile to all attempts to establish dominion over the sea that to-day civilized nations are disposed to tolerate no infraction, however slight, of the broad principle of mare liberum. The ultimate extent to which "territorial waters" may be urged in accordance with the present law of nations, includes only a marine belt of three miles along the open coast, and all harbors and bays whose openings to the sea do not exceed in width ten to twenty miles, or in general, such inland bodies of water, the narrowness of whose entrances from the sea and whose configuration clearly indicate them to be enclosed seas. The United States has always been conspicuously foremost in the advocacy of freedom of the high seas; she was indeed the first to protest against Russian unwillingness to accept these enlightened principles in the Pacific. It is to be regretted that in this matter the United States should have appeared before the tribunal and the civilized world in the unfortunate light of taking a step backward in order to resuscitate and reclothe a defunct mediæval doctrine.

The American case supported the contention that Russia had acquired dominion over Bering Sea by prescription, a

right or title gained by immemorial use. Alexander I. had made formal proclamation of this title in his ukase of 1821, and counsel contended that Russia had ever after enjoyed full and undisturbed possession of her asserted proprietary right over Bering Sea until by treaty of 1867 she had parted with such rights to the United States. And it was urged that the long period of time that Russia had remained in open adverse possession of those waters, exercising all the privileges a nation enjoys over a territorial expanse of sea without protest or hindrance, had given her a full and complete prescriptive title, which title passed unimpaired to the United States.

The question of Russia's undisputed exercise of her alleged rights in Bering Sea came before the tribunal as an issue of fact to be proved or disproved by weight of evidence, and the legal aspect of the question of prescription, its applicability to the present case, and its scope and force as a principle of the law of nations, were not touched upon by the arbitrators. It may well be doubted that even had Russia really been left undisturbed, as alleged, in her occupation of Bering Sea for a century or more, a prescriptive right to its waters would consequently ensue. There is abundant authority in international law to demonstrate that rights gained through immemorial usage do not appertain to the sea. All rights of navigation, fishing, etc., upon the high seas are of a nature that do not depend upon constant use for their validity. They may be used at will, or never used at all, for non-use cannot imply relinquishment. Because a nation never sailed a vessel across the sea may she forever be denied the privilege? Because a nation has alone fished in a distant sea may she forever bar her neighbor from fishing there as well? Again, it is conceived that prescriptive titles may be acquired only in such things as are inherently capable of acquisition, always implying an original or prior grant constituting at least a color of title. It is incompatible with the doctrine of the freedom of the high seas to suppose any one nation is capable of acquir ing rights therein above, or greater than, the common rights of all nations. Few in time past, and no one to-day, ventures to assert that Bering Sea falls within that class of enclosed

waters which form an exception to the general rule of mare liberum, or open free sea. Such then being the case, it is almost certain that, even had the fact of universal acquiescence in Russia's claims of dominion north of the Aleutian Islands been satisfactorily proved, a resulting prescriptive title would not have been accorded by any impartial tribunal.

It appeared at once that the American contention of Russia's exclusive sovereignty could not be maintained. Reliance had been placed in evidence afforded by certain Russian documents to establish Russia's prescriptive right to jurisdiction over those waters, and as a natural sequitur the similar American rights acquired by purchase. The testimony in question, upon closer scrutiny, was found to be false, and the American case, unsupported by proof, failed upon the first and second points.

The third point in the case, involving the true meaning of the term "Pacific Ocean," as employed by Russia and England in a treaty of 1825, and which in the full comprehensiveness of its meaning included the Bering Sea, was decided unanimously in favor of the English contention. This refuted Mr. Blaine's argument that English and American expressions of protest against Russian assumptions in the North Pacific had never been directed against Russian operations north of the Aleutian Islands or in Bering Sea. The object of this count was to strengthen the American prescriptive title to the waters of the Bering Sea in the event of decision favorable to the United States. But this issue having already been disposed of adversely to the United States in the first two counts, its value and importance were consequently lost.

Failing, then, in the first three points in the case, the fourth one became meaningless to the United States and was dropped without comment. This left the fifth and last issue in the case, the only one upon which the American commissioners could take a firm stand; the main force of the American argument was brought to bear upon it in an endeavor to establish a right of property in, or actual ownership of, the seals, and a consequent right of the United States to protect its own property upon the high seas.