vidual fisherman, he could catch comparatively few fish in any one day. Now we have nets such as those used by the Japanese, that are set out like batteries of guns, or squadrons of airplanes on the ground, and which cover the sea for miles and miles without any substantial break so that all of the fish in those waters are bound to be entangled or encircled and thus caught. The ancients had nothing like that. Moreover, we now have facilities for packing fish, such as the floating canneries, so that many thousands of salmon or other fish can be processed or packed in a single period of 24 hours. It is absurd to say that because a rule was established with respect to fishing, that was suitable for the convenience of the people of the world in the seventeenth, or eighteenth, or even in the early part of the nineteenth century, that rule must be followed blindly in the middle of the twentieth century even if it should lead to the absolute destruction of one or more great fisheries, when a more reasonable rule, more nearly consistent with existing conditions would preserve that fishery not only for the people now on earth but for untold generations yet to come. If I may ask a question, it is not a fact that those who oppose this measure, oppose it only because they say that a certain rule was established a long time ago and that we ought to follow that rule even if it ends in the absolute wiping out of the very thing which the rule was then designed to properly utilize and to protect. When Vattel said that the fisheries of the ocean were inexhaustible and therefore all people should be free to use them as they please, he spoke of an era when fishing appliances were markedly primitive so that, when such appliances were used, there was no danger of the exhaustion of the fish. At the present time the whole situation has changed, and in the Bering Sea we are confronted not only with the threat, but with the certainty of the early destruction of a great fishery, unless we take firm measures to protect and preserve it. FUR-SEAL ARBITRATION It will, of course, be asserted that the question of jurisdiction over the marginal seas involved in the measure under consideration has been given an answer adverse to my contention by the decision of the tribunal in the fur-seal arbitration. But such is not the fact. It is difficult to present in brief compass the essentials of the disputes which resulted in the fur-seal arbitration and in the ensuing legislation; nevertheless, a succinct statement of the matter will be attempted. In 1799, the Czar of Russia granted to the Russian-American Co. its first charter to carry on business of all kinds, and, in fact, to exercise a business monopoly as well as many functions of government in Russian America, now Alaska. In 1821 the Emperor of Russia issued a decree by which he gave approval to certain regulations adopted by the company regarding foreign commerce in Alaskan waters. Among other things, those regulations forbade foreign vessels to approach within 100 Italian miles of the coasts and islands belonging to Russian, including all of the North American coast as far south as the latitude of 45°50′, which would be some distance south of Portland, Oreg., and also reserved the pursuits of commerce, whaling, and fishing and all other industry in Alaska, to Russian subjects. This decree was protested by both Great Britain and the United States, and finally treaties were made between Russia and the British and American Governments wherein it was severally provided that: in any part of the great ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high contracting parties shall be neither disturbed nor restrained either in navigation or fishing, or in the power of resorting to the coast, upon points which have not already been occupied, for the purpose of trading with the natives * * * In 1867, by the so-called "Treaty of Cession," Alaska was ceded by Russia to the United States for $7,200,000, which was in due course paid by the United States to the Russian Government. Thereafter provision was made by law for the protection of the fur-bearing animals, including the fur seals of the Pribilof Islands. In the laws passed by Congress, however, no definition was attempted of the extent of the marginal waters to which the act should apply, nor did any international controversy concerning the killing of fur seals in Bering Sea arise until 1886. In 1881 the Acting Secretary of the Treasury, in answer to an inquiry, claimed that the killing of fur seals was prohibited by law in any of the waters east of the boundary between the United States and Russia, as fixed by the Treaty of Cession. That letter was evidently considered an authorirative statement of the rights of the United States, for in March 1886, a copy of the letter was sent by the then Secretary of the Treasury to the collector of customs in San Francisco with the request that the same be given publication in order to prevent any interference with the seals in Bering Sea. In the spring or midsummer of 1886, several British flag vessels were seized for pelagic killing of seals in Bering Sea, more than 60 miles from the nearest land, by a United States revenue cutter, and were brought into port and were ordered condemned and forfeited by Judge Dawson of the United States District Court for Alaska, who instructed the jury in effect that Bering Sea was a closed sea and that the law forbidding the killing of seals in Bering Sea applied to all of the waters thereof east of the international boundary between the United States and Russia. Subsequently other British vessels were seized, brought into port, condemned, and forfeited on like grounds. After that for some years a voluminous and at times sharp correspondence was carried on between the British and American Governments. During those negotiations, Lord Salisbury, the British Prime Minister, at one time tentatively agreed to proposed regulations whereby the ships of British nationals should be excluded from pelagic sealing, but the Canadian Government refusing to agree, no conclusion was reached. Finally, in order to compose the irreconcilable views of the two governments, it was agreed by treaty to submit the matter to a tribunal of seven arbitrators, two to be appointed by the President of the United States, two by the Queen of Great Britian, and one each. by the President of France, the King of Italy, and the King of Sweden and Norway. The following were appointed members of the arbitral tribunal: For the United States, Hon. John M. Harlan, a justice of the Supreme Court of the United States, and Hon. John T. Morgan, a Senator of the United States. For Great Britian, Lord Hannen, of the High Court of Appeal and the Honorable Sir John Thompson, minister of justice and attorney general for Canada. As neutral arbitrators the President of France named the Baron Alphonse de Courcel, a senator and ambassador of France; the King of Italy, the Marquis Emilio Visconti Venosta a senator of the Kingdom and formerly minister of foreign affairs; and the King of Sweden and Norway, Mr. Gregers Gram, a minister of state. The following questions were submitted to the tribunal: 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? At first the representatives of the United States asserted that historically Bering Sea was a closed sea and had been claimed as such by Russia from the early days. Later it was discovered that the documents supporting the closed-sea claim had not been accurately translated, and so that claim was abandoned. The proof submitted to the tribunal fairly showed that the seals mated and were born on the Pribilof Islands and remained there during the summer months, and that in the fall they left the islands for the warmer southern seas. In going to and returning from the Pribilof Islands, the sealing vessels had killed great numbers of them in the ocean so that the stock was in danger of exhaustion, although this point was disputed by some of the witnesses. The representatives of the United States urged that the United States had a special property right in the seals and a special duty of protecting them. The British Government claimed-and this does not seem to have been disputed by the United States-that the ordinary territorial limit was 3 miles from shore, and also claimed that beyond that boundary the United States could not exercise any authority with respect to the seals. The tribunal found: 1. That Russia never asserted or exercised any exclusive right in the seal fisheries in Bering Sea beyond the ordinary limit of territorial waters and that limit should be restricted to the reach of a cannon shot from shore. 2. That Great Britain did not recognize or concede any claim on the part of Russia to exclusive jurisdiction to the seal fisheries in Bering Sea outside the ordinary territorial waters. 3. That no exclusive rights of jurisdiction in Bering Sea and no exclusive rights as to the seal fisheries therein were held or exercised by Russia outside the territorial waters after the Treaty of 1825 (between Russia and Great Britain). 4. That the rights of Russia had been transferred unimpaired to the United States by the treaty of cession; and 5. That the United States has not any right of protection or property in the fur seals frequenting the islands of the United States and Bering Sea, when such seals are found outside of the ordinary 3-mile limit. Senator Morgan dissented from the conclusions reached on the first, second, and third propositions and insisted that in each case the position of the United States with respect thereto had been sustained. On the fifth question as to whether the United States had any right of protection or property in the fur seals, both Justice Harlan and Senator Morgan dissented and the judgment or conclusion was carried by the votes of all the other members of the tribunal except Baron de Courcel, who abstained from voting. At the same time Mr. Gregers Gram, the member of the tribunal appointed by the King of Sweden and Norway, expressed his desire that it should be understood that the tribunal had not undertaken to decide what were, according to the principles of international law, the ordinary limits of territorial waters. It appears that both Great Britain and the United States, at least for the purposes of determination of the questions presented to the tribunal, had agreed that 3 miles should be considered as constituting the ordinary limit of territorial waters. This conclusion is supported by the report of the Institute of International Law held in Paris in 1894, in which, on page 449, we find the following: Paragraph 1 of page 15 (supra, p. 129) must be suppressed. For Mr. Aubert having consulted Messrs. Gram and de Courcel on the general or special portent of the decision by which the tribunal of arbitration in the Behring case has fixed at 3 miles the limit of the territorial sea, they have replied that the protocol of the sittings of the tribunal of arbitration contains the reservation that the said tribunal did not intend to decide what are, under the principles of international law, the ordinary limits of territorial waters. Mr. Gram stated in his letter that "the arbitrators agreed to recognize that they were not called upon to decide as to what are, according to international law, the limits of territorial waters. It was agreed that these limits are, for the purpose of the award, three miles from the coast.' On the other hand, Mr. de Courcel stated: "The tribunal has not deemed that it was called upon to decide this question of principle; and it has merely limited itself to record the fact that the parties agreed to admit the extent of 3 miles from the coast as forming, in the case under review, the ordinary limit of territorial waters.' The commission has held three sittings in Paris and drafted a project which will be submitted for consideration to the assembly in the following order: (1) The articles themselves; (2) the grounds on which they are based according to the commission; (3) the wishes expressed by members of the commission. (Annuaire de l'Institut de Droit International. Edition nouvelle abregee (1928), pp. 448-449, vol. III.) The decision made by the tribunal in the fur seal case is, for several reasons, not controlling with respect to the action to be taken on the bill now before us: (1) The fur seal adjudication was made in 1893, more than 44 years ago. During that period striking mechanical developments have taken place in all lines of industry, fishing as well as others. The boats and gear used in fishing at the present day are much more efficient than those which were used in 1893 and before. At the present time comparatively few ships with modern gear may exhaust the salmon fishery of the entire world within a very few years. In order to prevent the absolute extinction of the valuable sources of food supply which may be obtained from the sea, particularly the salmon, it is necessary to extend in other directions, and make new applications, of the settled principles of international law, which now permit, and have always permitted, of proper protection of a nation's industries, as well as of its citizens, and of the defense of the realm. In this as in other cases the law must be adjusted to meet not only the mechanical developments of civilized society, but also meet the modified or changed eco nomic requirements of that society. (2) In the fur seal case we not only agreed with Great Britain, but, indeed, asserted that 3 miles constituted the limit of "ordinary territorial waters," which, however, was not then the fact, and certainly is not true of present-day conditions when we find a substantial majority of the civilized nations of the world rejecting the 3-mile limit rule. (3) With respect to the seal herds, it was proved beyond any dispute that the pelagic sealing of foreign nationals, which the United States tried to terminate by the seizures made in 1886, had been carried on for years prior thereto. The following excerpt from the case of Great Britain (Fur Seal Arbitration, vol. 4, p. 86) was never successfully disputed: "It is found that from 1867 down to and including 1885, vessels continued to visit and hunt in Behring Sea without interference when outside of the ordinary territorial jurisdiction." As before stated, it was agreed that the "ordinary Territorial jurisdiction" extended only 3 miles from shore. Moreover, it was shown to the tribunal that vessels from even the Sandwich Islands took seals from the Pribilofs in competition with vessels from New England (id. p. 78). In Alaska we are not confronted with any such situation. The salmon-packing industry there from its earliest inception until the present moment has been exclusively an American industry. The recent invasion of the Japanese was made clandestinely and surreptitiously and at a time when the Japanese Government denied that any such salmon-packing operations in the waters! adjacent to the coast of Alaska were being carried on by the nationals of that country. (4) Long before the fur-seal arbitration, Congress had expressly declined to assert the right of our Government to protect the fur seals in Bering Sea beyond 3 miles from our shores. This will later be discussed at length, but it may here be noted that Congress finally rejected an amendment to a bill which would have asserted the jurisdiction of the United States over all of the waters of Bering Sea east of the boundary line fixed by the treaty of cession for the purpose of protecting the seals and other fur-bearing animals of that region. An assertion now by this Congress of our authority to protect the Alaska salmon fishery made at a time before any rights of foreign nationals have come into being by custom or otherwise will remove forever one of the difficulties with which our representatives were faced in the fur-seal arbitration proceedings. (5) Rights or claims to property must necessarily be based upon law. Municipal law is the only type of law that can adequately support and sustain such rights and claims. International law possesses no such function or power. In the fur-seal case we had no municipal law since Congress had declined to enact one. The passage of the legislation now under consideration will provide such a municipal law and give legal force and effect to our claims of property and jurisdiction, and thus will be avoided the trap into which we fell in the fur-seal case. |