The record-union., 1891-01-26

VI our governments, DuI alSo Kill
ing within it's jurisdiction can be
and is now SO carried. on as to unneces-
sarily impair seal life in that region of
| land and water and uselessly destroy
source of wealth. Those entitled to kill
fur seals on the high seas and outside of
our exclusive dominion have rights,
it is said, as well as those who kill
fur seals in the United States. Whatever
is now the law of nations cannot be mod
lied excepting by the consent and usage
OF all the nations"
OPEN AND CLOSED SEAS.
But" I interposed, "our people are
anxious to know what are now their legal
| rights of navigation, fishing and killing
seals IN Behring Sea, and within the geo
graphical limits of demarcation set forth
| In the treaty of 1867 with Russia. Do the
waters thus defined make, in public law,
g CLOSED sea?' What is closed sea?'
Is there difference in public law be-
| tween navigating, fishing and hunting
fur seals? Where do the exclusive rights
in Behring Sea of ourselves, or of our
| Government, begin and end? That"
SAID l, lis what the voters wish to know
about, whenever they think at all, con-
| corning the topic"
Mr.. Webster replied that if definition
OF those rights is to be publicly formu-
lated, in advance of the result of diplo-
macy, it should be either by the Presi-
eiSIio NCoiiluseiiiks Jul dudlIS}, OI
by Congress, or by both uniting in law,
or by the judicial power interpreting
statute and testing it by the Constitution,
or by all combined. The law of nations
| is customary law, whose only sanction
| is usage and consent. The international
law of to-day is the usage and consent of
to-day-lf they differ from that of cen
| fury ago. Not one nation, or few
nations out of many, can make the law of
| nations, nor can the treaty Stipulations Of
one, or few of many, make it. Many
rules once forming part of that law are
no longer allowed.
| The sovereignty now allowed to
nation, by custom and common consent,
over portions of the sea not more than a
lannon's shot from the shore, and over
| its lncloSed bays is, in fact, survival,
and very narrow remnant, of the do
mlnion over greater part of the known
| sea and ocean. Nearly hundred years
ago Q3S3) President Jetferson's admins
tration declared that Delaware Bay be-
longed exclusively to the United States,
and that neither France nor England
could make prizes or conduct belligerent
operations therein against one another.
In that year President Jefferson asserted
our claim of jurisdiction along the coast
| to be a marine league, but he afterwards
said that he had then only named three
miles as the limit because Genet, by his
| interference, forced rs to fix on some
| point, and we were not then prepared to
assert the claim OF jurisdiction to the ex-
| tent we are in reason entitled to-" In
1906 Secretary of State Madison Said:-
I'VE are entitled to claim as neutral the
space between the Gulf Stream and the
Shore" but sixty-five years later, Secre-
tary of State Hamilton Fish instructed
our Minister at Constantinople that 1.-THE
President deems it important to avoid
recognizing as a right under the law of
I IL
ciSeS over the straits leading into the
Euxine, whose shores were then owned
by two governments instead of one, as
formerly. But even as to the three mile
remnant of Mare Clausum Grotius in
| sisted this is certain, that even he who
holds the sea by occupation cannot pre-
vent an unarmed and harmless nayiga-
ton upon it.' That is accepted law to-
day, the navigator obeying all police
regulations and paying all proper taxes
and dues. Chief Justice Marshall de-
clared such waters within the three miles
to be 1.-THE common thoroughfare of
nations" even though they be so far
| regulate the use.
FISHERY RIGHTS.
In regard to fishing on these littoral
seas, Grotius says, concerning wild
| beasts, fishes, birds, that ''he who has the
ownership of the land and water may on
that ground, prevent any one from tax
ing those creatures, and thus acquiring
| property from them" Puffendort and
| Vattel both say that 'ssea fisheries are
subject to occupancy. and capable of ex-
elusive possession" but yet up to a very
recent period it may be safely affirmed
/ that the tendency of international law,
based on usage and custom, has for three
centuries been to make the high seas less
and less susceptible OF exclusive occu-
| nancy and iofi
pose, by any nation, or powerful group
OF nations, and to leave the open sea free
for anybody's and everybody'S navigat-
ing and fishing. The proposition by mod
! ern publicists, that international sanction
shall be given for an international iuris-
diction and an administrative control
over portions of the high seas, where they
may be necessary to preserve sources of
| international wealth and protect individ-
uals engaged in making that wealth, will,
ii adopted, be a reversal of the modern
tendency OF public law.
But" | inquired, could not Russia,
having exclusive possession of Behring
Sea, transfer by cession her dominion
over all, or over part of it, to the United
States?''
YES" Mr.. Webster replied, eff Russia
had, in 1867, a union of possession and of
right under the law of nations. But yet
l fancy" he added, that if our possession
and right i'll Behring Sea are challenged
by any nation in 1891, we must vindicate
them under the law of nations as it is in
1891. 1t may be that the claim Of Russia,
even if good in 1870, may not be capable
of vindication in 1891. Neither Secretary
Bayard nor Secretary Blaine has vindi-
Gated present claim of ours, as the as
signee of Russia, to keep our part of
| Behring Sea closed to innocent naviga-
ton by foreigners.
CONTROL OF MARGINAL WATERS.
''The truth u.s." said Mr.. Webster, shat
the law of nations in respect to the char
acter and extent of the jurisdiction which
a nation may enforce over marginal seas,
is yet in a state Of fiux. Itisoniy within a
comparatively recent period that very ex-
tensive claims that / have described have
been abandoned. Jefferson has told us
that Genet hurried the United States into
prescribing three miles. That was then
the average limit of gun In position, but
now the range of projectiles ashore or
atioat is much greater. The doctrine of
marginal seas has no reason unless mari
time occupation can be extensive enough
to protect the lives and all the property
rights on land of the State and its citizens.
| Every State now reserves to itself, or its
citizens, the enjoyment of its fisheries
and natural products within its marginal
seas. Those fisheries are a property
right. There is, at the same time, con-
coded distinction between fishing and in
nocent navigating in those marginal
waters. The question how far into the
sea a state may exercise control over for
eigners and regulate their use of the wa
terS of the sea is now sharply and clearly
presented in the case of our Pribyloy
Islands,"
A True Story.
The day before Christmas, the wife of