I

Victoria on the 19th January, and I got 734 seals during the season and lost 37. never saw a young pup alongside its cow in the water.

About one-third of the seals taken on the coast are cows with pup or capable of being with pup. In Behring's Sea I got four cows with pups in them.

GEORGE HOWE.

WILLIAM FEWINGS.

I have beenthree years hunting seals on the Pacific coast and in Behring's Sea. In 1887 I was on board the sealing schooner Favourite, in 1888 on the Viva, and in 1889 on board the Triumph. In each year the vessel I was on entered the Behring's Sea early in July and left the sea the latter part of August or early in September, except this year, when the Triumph left the sea on the 11th July under threat of seizure, after searched by the United States cutter Rush. In 1887 the hunters I was with were partly Indians and partly whites. In the two last years the hunters were all whites, using shot guns and rifles. The rifles were used by the more experienced hunters and better shots for long range shooting, up to 100 yards, but few hunters attempted that range. The general range for rifles is not over 50 yards and most shots are made at a less range. A few hunters used the rifle for all distances. I used either rifle or shot-gun, according to the distance and position of the seal and the condition of the water.

My first year I got about four hundred seals. In getting this number I failed to capture about twenty-five shot at, or killed or wounded, but which escaped. In my second year I got over five hundred, and lost about thirty. This year I got one hundred and forty, and lost only one. I have frequently shot from two to five seal in a bunch, and got them all. One day in 1887 I got two bunches of five each, and another of four, and got the whole fourteen.

Indian hunters use spears, and either get every seal they throw at or it escapes unhurt, or but slightly wounded. Indians, it can be safely said, get every seal they kill.

Oscar Scarr, a hunter on the Viva, in 1888 got over six hundred seals, and lost only about twenty. The average number lost by white hunters does not exceed six in one hundred, and by the Indian not six in one thousand. I have never shot, nor have I ever seen, a female seal with a young one beside or with her. It is very seldom a female is killed in Behring's Sea carrying her young with her, and out of one thousand killed on the coast earlier in the season less than one-third are females carrying their young.

VICTORIA, BRITISH COLUMBIA, August 9, 1889.

WM. FEWINGS.

WALTER HOUSE.

I was a hunter on the schooner Walter L. Rich on her sealing voyage this year. It was my first year on the Pacific coast, but I had seven years' experience on the Newfoundland coast catching hair-seals. This year on the Rich I got one hundred and eighty-five seals and lost five, which sank before I reached them. I used a shot-gun. The hunters on the Rich lost about the same proportion, some a few more, some Tess. I never saw a cow seal in the water with her young beside her or near her, nor have I ever heard of such a case.

VICTORIA, BRITISH COLUMBÍA, August 10, 1889.

JAMES WILSON.

WALTER HOUSE.

I was carpenter on board the sealing schooner Triumph on her voyage this year. One of the hunters was drowned just before entering Behring's Sea, and I took his place. I was out hunting seals about a week, but the weather was bad and I got only twenty-three seals. I had had no experience. I used a breech-loading shotgun, and shot seals at a range of from 10 to 15 yards. I lost one seal through the carelessness of the boat hands running the boat over the seal, which sank directly under the boat.

Most of seals lost by hunters are shot at long ranges with the rifles. One hunter on the Triumph this year got over sixty seals and only lost one. I never saw a cow seal with her young beside her. Out of the twenty-three I got, five or six were cows carrying their young.

VICTORIA, BRITISH COLUMBIA, August 9, 1889.

JAMES WILSON.

CAPT. J. D. WARREN.

I am a master mariner, and have been actively engaged in the deep-sea sealing business for twenty years. I have owned and commanded sealing vessels on voyages along

the Pacific coast from 47 or 48 north latitude to 56 or 57 north latitude within Behing Sea. I have generally employed Indians except in 1886 and 1887, the last years, I was out, when I had white hunters as well. White hunters use rifles and shotguns entirely, Indian hunters use spears. Bullets weighing from 300 to 400 grains are used with rifles, and ordinary buckshot with guns. Both rifles and shotguns are breechloading and of the best make. Seals are approached by the hunters in boats, to 10 or 15 yards, lying generally asleep on the water. Frequently seals are taken alive when asleep, especially by the Indians, who, in their canoes, get within from a spear's length (14 or 15 feet) to 30 feet before they throw. Indians rarely lose a seal they strike, and if one escapes it is always but slightly wounded. Of seals killed by white hunters, probably not over 10 per cent. are killed with rifle, which is generally used for only a long range.

Sealers divide the seals for hunting purposes into two classes, "sleepers" and "feeders" or "travelers. Sleepers" are almost always shot at from 10 to 15 yards range, and are seldom lost. "Feeders" are shot at just as their heads emerge from the water. From this fact the range is always from a few feet to 100 yards, though few are fired at at that distance. Hunters use a "gaff," a pole about 10 or 12 feet long, with one to three hooks upon it, with which they catch the seal and bring it into the boat. If the seal sinks, the "gaff" is run down, and the seal hooked up. The British sealing vessels employ more Indian than white hunters. My experience with white hunters is not so extensive as with Indians, but from what I have seen while engaged in sealing I can say that not over six in every one hundred seals killed by white hunters are lost or escape.

Experienced hunters seldom lose a seal; the losses are chiefly made by inexperienced hunters, only a few of whom are employed, for the reason that as hunters are paid so much a skin, inferior men can not make good wages. I have noticed no diminution in the number of seals during the twenty years I have been in the business, but if any change at all, an increase. Of the seals taken along the coast about onehalf are females, and of the females not more than one-half are with young. In Behring Sea not one in one hundred of those taken by the hunters are females with young, because as soon as the females carrying their young get into the sea they go to the breeding islands or rookeries, and in a few days their young are born. The cows remain with their young until they are quite able to take care of themselves. I do not think that out of the seals taken by Indian and white hunters more than 30 per cent. are females actually breeding or capable of breeding.

"Old bulls," "bachelors," "two-year old pups," and "barre cows" make up the great majority. Cows actually breeding are very watchful, and while on the voyage northward are ever on the alert, so they are difficult to take. On the other hand, the other classes above named make up the great class of "sleepers," from which fully 90 per cent. of the whole catch of hunters is derived. I never saw or heard of a having her young beside her in the water, either on the coast or in Behring Sea. J. D. WARREN.

VICTORIA, BRITISH COLUMBIA, August 10, 1889.

66

No. 14.

The Marquis of Salisbury to Sir Julian Pauncefote.

[Left at the Department of State on June 5 by Sir Julian Pauncefote.]

No. 106.] FOREIGN OFFICE, May 22, 1890. SIR: I received in due course your dispatch No. 9, of the 23d January, inclosing copy of Mr. Blaine's note of the 22d of that month, in answer to the protest made on behalf of Her Majesty's Government on the 12th October last, against the seizure of Canadian vessels by the United States revenue-cutter Rush in Behring Sea.

The importance of the subject necessitated a reference to the Government of Canada, whose reply has only recently reached Her Majesty's Government. The negotiations which have taken place between

Mr. Blaine and yourself afford strong reason to hope that the difficulties attending this question are in a fair way towards an adjustment which will be satisfactory to both Governments. I think it right, however, to place on record, as briefly as possible, the views of Her Majesty's Government on the principal arguments brought forward on behalf of the United States.

Mr. Blaine's note defends the acts complained of by Her Majesty's Government on the following grounds:

1. That "the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores—a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States."

2. That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United States in 1867, and that from this date onwards until 1886 they had also remained in the undisturbed possession of the United States Government.

3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea.

Mr. Blaine further argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which inevitably tend to results against the interests and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United States Government by the necessity of defending not only their own traditional and long established rights, but also the rights of good morals and of good government the world over.

He declares that while the United States will not withhold from any nation the privileges which they demanded for themselves, when Alaska was part of the Russian Empire, they are not disposed to exercise in the possessions acquired from Russia any less power or authority than they were willing to concede to the imperial government of Russia when its sovereignty extended over them. He claims from friendly nations a recognition of the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always conceded to the Empire of Russia.

With regard to the first of these arguments, namely, that the seizure of the Canadian vessels in the Behring's Sea was justified by the fact that they were "engaged in a pursuit that is in itself contra bonos mores— a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States," it is obvious that two questions are involved: first, whether the pursuit and killing of fur-seals in certain parts of the open sea is, from the point of view of international morality, an offense contra bonos mores; and secondly, whether if such be the case, this fact justifies the seizure on the high seas and subsequent confiscation in time of peace of the private vessels of a friendly nation.

It is an axiom of international maritime law. that such action is only admissible in the case of piracy or in pursuance of special international agreement. This principle has been universally admitted by jurists, and was very distinctly laid down by President Tyler in his special message to Congress, dated the 27th February, 1843, when, after acknowledging the right to detain and search a vessel on suspicion of piracy, he goes on to say: "With this single exception, no nation has,

in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, outside the territorial jurisdiction." Now, the pursuit of seals in the open sea, under whatever circumstances, has never hitherto been considered as piracy by any civilized state. Nor, even if the United States had gone so far as to make the killing of fur-seals piracy by their municipal law, would this have justified them in punishing offeuses against such law committed by any persons other than their own citizens outside the territorial jurisdiction of the United States.

In the case of the slave trade, a practice which the civilized world has agreed to look upon with abhorrence, the right of arresting the . vessels of another country is exercised only by special international agreement, and no one Government has been allowed that general control of morals in this respect which Mr. Blaine claims on behalf of the United States in regard to seal-hunting.

But her Majesty's Government must question whether this pursuit can of itself be regarded as contra bonos mores, unless and until, for special reasons, it has been agreed by international arrangement to forbid it. Fur-seals are indisputably animals feræ naturæ, and these have universally been regarded by jurists as res nullius until they are caught; no person, therefore, can have property in them until he has actually reduced them into possession by capture.

It requires something more than a mere declaration that the Government or citizens of the United States, or even other countries interested in the seal trade, are losers by a certain course of proceeding, to render that course an immoral one.

Her Majesty's Government would deeply regret that the pursuit of fur-seals on the high seas by British vessels should involve even the slightest injury to the people of the United States. If the case be proved, they will be ready to consider what measures can be properly taken for the remedy of such injury, but they would be unable on that ground to depart from a principle on which free commerce on the high seas depends.

The second argument advanced by Mr. Blaine is that the "fur-seal fisheries of Behring Sea had been exclusively controlled by the Government of Russia, without interference and without question, from their original discovery until the cession of Alaska to the United States in 1867," and that "from 1867 to 1886 the possession, in which Russia had been undisturbed, was enjoyed by the United States Government also without interruption or intrusion from any source."

I will deal with these two periods separately.

First, as to the alleged exclusive monopoly of Russia. After Russia, at the instance of the Russian-American Fur Company, claimed in 1821 the pursuits of commerce, whaling, and fishing from Behring Straits to the 51st degree of north latitude, and not only prohibited all foreign vessels from landing on the coasts and islands of the above waters, but also prevented them from approaching within 100 miles thereof, Mr. Quincy Adams wrote as follows to the United States minister in Russia:

The United States can admit no part of these claims; their right of navigation and fishing is perfect, and has been in constant exercise from the earliest times throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions.

That the right of fishing thus asserted included the right of killing fur-bearing animals is shown by the case of the United States brig Loriot. That vessel proceeded to the waters over which Russia claimed

exclusive jurisdiction for the purpose of hunting the sea-otter, the killing of which is now prohibited by the United States statutes applicable to the fur-seal, and was forced to abandon her voyage and leave the waters in question by an armed vessel of the Russian navy. Mr. Forsyth, writing on the case to the American minister at St. Petersburg on the 4th of May, 1837, said:

It is a violation of the rights of the citizens of the United States, immemorially exercised and secured to them as well by the law of nations as by the stipulations of the first article of the convention of 1824, to fish in those seas, and to resort to the coast for the prosecution of their lawful commerce upon points not already occupied.

From the speech of Mr. Sumner when introducing the question of the purchase of Alaska to Congress, it is equally clear that the United States Government did not regard themselves as purchasing a monopoly. Having dealt with fur-bearing animals, he went on to treat of fisheries, and after alluding to the presence of different species of whales in the vicinity of the Aleutians said: "No sea is now mare clausum; all of these may be pursued by a ship under any flag, except directly on the coast or within its territorial limit."

I now come to the statement that from 1867 to 1886 the possession was enjoyed by the United States with no interruption and no intrusion from any source. Her Majesty's Government can not but think that Mr. Blaine has been misinformed as to the history of the operations in Behring Sea during that period.

The instances recorded in Inclosure 1 in this dispatch are sufficient to prove from official United States sources that from 1867 to 1886 British vessels were engaged at intervals in the fur-seal fisheries, with the cognizance of the United States Government. I will here by way of example quote but one.

In 1872 Collector Phelps reported the fitting out of expeditions in Australia and Victoria for the purpose of taking seals in Behring Sea, while passing to and from their rookeries on St. Paul and St. GeorgeIslands, and recommended that a steam-cutter should be sent to the region of Ounimak Pass and the islands of St. Paul and St. George.

Mr. Secretary Boutwell informed him, in reply, that he did not consider it expedient to send a cutter to interfere with the operations of foreigners, and stated: "In addition, 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 attempt within a marine league of the shore."

Before leaving this part of Mr. Blaine's argument, I would allude to his remark that "vessels from other nations passing from time to time through Behring's Sea to the Arctic Ocean in pursuit of whales have always abstained from taking part in the capture of seals," which he holds to be proof of the recognition of rights held and exercised first by Russia and then by the United States.

Even if the facts are as stated, it is not remarkable that vessels pushing on for the short season in which whales can be captured in the Arctic Ocean, and being fitted specially for the whale fisheries, neglected to carry boats and hunters for fur-seals or to engage in an entirely different pursuit.

The whalers, moreover, pass through Behring Sea for the fishing grounds in the Arctic Ocean in April and May as soon as the ice breaks up, while the great bulk of the seals do not reach the Pribylov Islands till June, leaving again by the time the closing of the ice compels the

whalers to return.