Evening star., 1894-01-01
BERING SEA OPINIONS
Views of Justice Harlan and Senator Nor
gan Filed.
Clear and Able Discussion of the
Questions at Issue - Seals rs
PFoperty-The Briefs.

The opinions in full Of Justice Harlan and
Senator Morgan, United States Bering sea
arbitrators. have been filed at Paris in ac-
cordance with the resolution Of the tribunal
which provided that such opinions should
be filed on or before January l, 1894. These
opinions embody substantially what was
said in conference by the two arbitrators
from the United States. 1t is supposed
that under the same resolution each of the
other arbitrators has filed an opinion.
Upon the question as to the power of the
tribunal to make regulations for the North
Pacific the views of Senator Morgan and
Justice Harlan prevailed.
Rights Exercised by Russia.
Justice Harlan discussed the question of
the Jurisdiction and rights asserted and ex-
ercised by Russia in Bering at consider
able length. The opinion that subject
concludes in these words: "If / am correct
in the views above expressed, the answers
to the first four points of article should be,
substantially, follows:
ITO the fi-st-Prior to and up to the time
of the cession of Alaska to the United
states Russia did not assert nor exercise
any exclusive Jurisdiction in Bering sea, or
any exclusive rights in the fur seal fisheries
in that sea, outside of ordinary territorial
waters. except that in the ulSase of 1921 she
did assert the right to prevent foreign ves-
sells from approach nearer than 100 Ital-
Ian miles the coasts and islands named in
that ukase.
But, pending the negotiations to which
that ukase gave rise, Russia voluntarily
suspended its executions so far as TO direct
its officers to restrict Their surveillance of
foreign vessels to the distance of cannon
shot from the shores mentioned and by the
treaty of 1874 with the United States as
well as by that Of 1925 with Great Britain,
the above ukase was withdrawn, and the
authority he IN
foreign vessels from approachin the coasts
nearer than 100 Italian miles was abandon
| ed, by the agreement embodied in those
treaties to the effect that the respective
citizens and subjects of the high contract
ing parties should not be troubled or mo-
| Tested in any part of the great ocean COM
monty called the Pacific ocean, either in
navigating the same or in fishing therein
| or IN landing al such parts of the coast as
shall not have been already occupied in or
der to trade with the natives. under the
restrictions and conditions specified In other
articles of those treaties.
What Great Britain Recogntxed,
'To the second-Great Britain never rec
ognized nor conceded any claim by Russia
or exclusive jurisdiction in Bering sea, nor
of exclusive rights as to the seal fisheries
| therein, outside of ordinary territorial
| waters; although she did recognize and con-
cede Russia exclusive jurisdiction within
her own territory and such jurisdiction in
| side Of territorial waters as was consistent
with the law of nations.
ITO the third-The body of water now
| known Bering sea was included in the
phrase Pacific Ocean as used in the treaty
of 1925 between Great Britain and Russia
ana after that treaty, Russia neither held
| nor exercised any rights in the waters of
| Bering sea, outside of ordinary territorial
waters, that did not belong in the same
| waters to other countries.
fhn h th. rf.,b,
| as to Jurisdiction and to Ine seal fisher
| les in Bering sea, east of the water bound
airy In the treaty between the United States
and Russia of Marcn 81, 1861, passed under
that treaty unimpa,red to the United States -
Property in the Seals.
| His discussion of the questions of prop
| erty and protection is also very elaborate
After an extended statement of the facts of
| seal life. and a tull review of the authorf-
| ties, he holds that although the seals are
| ferae naturae (wild animals) and are not
the subjects of property in their original
condition of wildness, the law will vet rec
| ognize right of property in them in favor
| Of one who. by acting upon their natural
| Instincts and py care, watchfulness self
denial and industry induces or causes them
! to abide for stated periods in each year
upon his premises, thai he and he only
| is IN a position TO deal with the race as a
whole, taking its increase regularly for com
| mercial purposes without impaIring the
| stock.
Justice Harlan thus concludes the discus
| sion of the question of property:
bringing together the principal facts and
| the conclusions arising from them, the case
presented by the United States mas upon
| which 1t asks judgment at the hands of
| this tribunal sustaining its claim TO own
these seals, not only while they are at their
breeding grounds, but when temporarily ao-
| sent tnerefron in the high seas IN quest OF
food is follows:
This race of animals is exhaustable in
number and is valuable for purposes of raj
| ment and food. They are not a product OF
the sea, for they are conceived on land, can
| not be conceived in the ocean and must of
| necessity come into existence and for a
| considerable part Of each year abide upon
| land.
| When away from their land home 1t is
| for temporary purposes and with the abso-
! lutte certainty that unless waylaid and killed
by peiagic seale-s while they are beyond
| territorial waters they will return TO that
| home at particular time and remain there
for several months in every year, d0ring
which proper proportion or their inc -ease
can be readily taken, leaving the herd un-
impaired in its integrity"
| Mr.. Harlan then points out that the seals
| are born on American soil, and the care
there given them, and points out that the
| taking or the seals on the high seas 10 any
| extent involves the very existence of the
race and says: 80 that the taking of these
| animals at the breeding grounds for corr
! enable a proper proportion of males to be
! taken for use. and the killing OF them in
! the open waters of the ocean, where no dis
| elimination as to sex is possible is the diff
| ference between preserving the race for the
benefit of the world and its speedy exter-
raiuation for the benefit of a few Canadian
and American sealers prosecuting a busi-
ness barbarCus in its methods that Presi-
dent Harrison fifty characterized IL as
crime against nature"
Rirht IN Project Them,
Justice Harlan argues that the recogni-
ton of the right Of property asserted by
the United States would secure the preserva-
ton of the seals and then takes up the
questio of the right of the United States to
protect the seals against pelagic sealing.
and as he has shown that the seals are the
property of the United States. he very nat
urally decides that the United States has
right as all individuals have, to protect its
property. The justice maintains the right of
the United States, independently Of any
ownership of the SEALS but simply as owner
of the fur and seal industry conducted on
the Pr!bylof Islands, the existence OF which
industry depends upon the preservation of
this race from determination, to protect
them against pelagic sealing, which method
of sealing, says the justice, Is crime
against the law of nature and consequently
without any sanction whatever in the law
of nations. Justice Harlan also argues
against the idea that the freedom of the