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UNIVERSITY OF CA RIVERSIDE. LIBRARY





3 1210 01851 1863



The Bering Sea Arbitration
Welling, James C.






THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

RIVERSIDE



COLUMBIAN UNIVERSITY STUDIES



THK



BERING SEA ARBITRATION

OR

"PELAGIC SEALING" JURIDICALLY CONSIDERED

ACCORDING TO A PARTICULAR ANALOGY

OF MUNICIPAL LAW



BY



JAMES O. AVELLIFG, LL. D.

PRESIDENT OF THE CO' "MBIAN UNIVERSITY AND PROFESSOR OF INTER-
NATIONAL I,AW IN THE LAW SCHOOL OF THE UNIVERSITY



THE UNIVERSITY PRESS



JUDD & DEXWEILER
PRINTI-RS TO THE SCIENTIFIC SOCIETIES OF WASHINGTON

WASHINGTON, D. C.
1893



WASHINGTON, D. C




1. The University publishes in this form the results
of original inquiry or independent research.

2. The University assumes no responsibility for
expressions of individual opinion contained in publi-
cations made under its auspices.

3. All publications of the University are kept on
sale at prices varying with the cost of publication.

4. All communications relating to the purchase of
publications should be addressed to The Treasurer of
the Columbian University, Washington, D. C.

The price of this publication is twenty-five cents
per copy.



u/^



THE BERING SEA ARBITRATION;

OR,

"Pelagic Sealing" Juridically Considered According to a Par-
ticular Analogy of Municipal Law.



In the primeval state of man property is supposed to have begun
with the occupation of things for man's personal use. The Roman
Law of Occupation was at once very simple and very strict. Wild
animals, as being in their natural state res nullius, were held to be
convertible into property by occupation.; and this for the sufficient
reason that what belonged to nobody could be made to belong to
anybody who took it. Not, indeed, that mere taking gave owner-
ship or value, but that it was only by the instrument of occupation,
to the ends of possession, that wild animals could be made service-
able, and therefore valuable, to man. Hence, in enunciating the
maxim of the Civil Law, res nullius occupanti conceditur, we must
emphasize equally each word in the sentence.

Li consistency with this maxim, it was held in early Roman Law
that the right of occupation which attached to wild animals was a
pure ius hoiniuis, belonging to any man wlio captured them, any-
where, for his personal benefit, and not an ius doininii resulting
from ownership of the soil on which the wild animals were found.
The owner of the soil had, indeed, a right to jM-ohibit the entrance
of a huntsman on his farm, but he could not claim the wild game
which was killed or captured on his premises, even when the killing
or capture was effected in violation of his interdict. His remedy
was to sue for tresi)ass. Yet as the land-owner, by his interdict,
could maintain, defaelo, the exclusive privilege of hunting on his
own grounds, the game found on his soil could be placed practically
at his exclusive command.'!^ In cases, therefore, where the game
found on land was sparse, casual, and uncertain, it could not be

* Digest, xli, i, 3, |? i, 2.



Z COLUMBIAN UNIVERSITY STUDIES.

held to constitute any part of the fnictiis of the farm; but in cases
where the game could be singled out, as an object of economic
significance, it tvas competent to hold and consider it as friictus.
Hence the doctrine of Julian, when, as we read in the Digest, " he
denied that hunting w^?>fructiis of a farm, unless \.\\q fniclus of the
farm resulted from hunting."-^- In another part of the Digest we
read, in consistency with this doctrine, that lucrative returns from
fowling, fishing, and hunting pertained to the fructuary,f and even
where the hunting was not very important, because it took place in
the woods and mountains of a landed estate, we are told that it
could be " fairly asserted " (that is, could be asserted in equity) to
constitute a part of the usufruct ; \ while tliis was clearly the case
where a hunting-staff or a working-plant was connected with the
estate for the express purpose of capturing game.§

With regard to animals which were partially domesticated, and
which, by reason of their habits, whetlier natural or acquired, could
be put under a partial human control, a somewhat different rule
obtained. To the extent in which these animals, by virtue of their
habit for locality, could be made self-subservient to the uses of man,
it was held that they became the qualified property of the owner
wlio had domesticated them, or who, by purchase or otherwise, had
a right to profit from their custody. The rule under this head, as
laid down by Gains, is as follows :

"As to animals which, from habit, are wont to go away and re-
turn, such as pigeons and bees, likewise deer that are wont to go
to the woods and return, we have this rule handed down, that if
they cease to have a disposition to return \revertendi a>nmiim'\ they
cease also to be ours, and may become the property of the first
takers ; and they seem, moreover, to cease to have a disposition to
return when they may have abandoned the habit of returning." ||

* Digest, xxii, i, 26: '' Veiiatioueni fructus fundi negavit esse, nisi
fructus fundi ex venatione constat."

t Digest, vii, i, 9, l 5.

X Digest, vii, i, 62.

^Digest, xxxiii, 7, 12, \\ 12, 13.

II Gains, ii, \ 68 : In iis auteni aninialibus qnie ex consuetudine abire
et redire solent, veUiti columbis et apibns, item cervis qui in silvas ire et
redire solent, taleni habenius regnlani traditani, lit si revertendi animuni
habere desierint, etiani nostra esse desinant, et fiant occupantinni ; re-
vertendi anteni aninmni vidcntur desinere habere cum revertendi con-
suetudinem deseruerint.



BERING SEA ARBITIJ ATION. 3

The same doctrine meets us in tlie Digest* and in the Institutes. f

It is easy to perceive the reason and ground of this rule of law.
Certain animals, by reason of their animus revertendi, can, without
their knowing it, be made subservient to the economic control of
man. Sic vos non vobis inellificatis apes. The animus revertendi, as
cited by Gains, is not an index of mansuetude. It exists alike in
wild bees and in tame bees,| but in the case of the latter it has been
seized on by man as an instinct which, under appropriate arrange-
ments (that is, by the inclosure of bees in artificial hives), can be
made tributary to economic ends at a spot selected by man and
under his control. The animal's state of mind is important only
because it serves as an index of the owner's prospect of retaining the
animal in his possession.

Speaking in the language of the schools, we may say that man is
the efficient c^Axv^t of bee husbandry. The material with which he
makes his hives is the material cause. The tools with which he con-
structs hives are the instrumental cause. The conditions which pre-
scribe the shape and structure of the hives are tlie formal cause,
while economic gain is the final cause of the whole proceeding.
But in this array of causes, it is the animus revertendi which condi-
tionates the whole process, and whicli, at bottom, is the condition-
ating factor of the whole process. As the logic of causation shifts
with the point of view, if the point of view be shifted from the hives
to the bees themselves it nuist be said that the bees are the material
cause of bee husbandry, and that the animus revertendi is the instru-
mental ca.i\%e of bee husbandry.

From this analysis it would ajjpear that it is the qualified dominion
of man over animals having an animus revertendi (that is capable of
being turned to economic uses) which gives rise to a qualified prop-
erty in them. The right of free occupation comes, as to them,
under restriction, because they are already the subjects of a prior,
though qualified, occupation.

As the Commentators say, the occupation of animals which are
by nature /iTcc naturce implies four conditions: First, The animal at

* Digest, xli, i, 5.

t Institutes, ii, i, 15.

X Pufendorf is careful to note this fact, as bearing on the logic of the
law. He says : " Consiietndineni ad alvearia sua redenndi non adsuetu-
dine hominntn, sed proprite naturae instinctu, habent ; de caetero plane
indociles." Puf. De Jure Naturae, Lib. iv, 6, 5.



4 COLUMBIAN UNIVERSITY STUDIES.

the time of capture must be really and entirely res niillius. Secondly,
It must be taken with a view to possession. The man who kills a
wild bird merely to show his skill as a marksman is not an occupant
in even an inchoate sense. He may be shooting merely for a wager.
Thirdly, The desire of possession, the animus possidendi, must be
authenticated and effectuated by some definitive act which trans-
lates the desire of possession into an accomplished fact. The man
who stumbles on a honeycomb in the forest and who desires to pos-
sess it, does not make it his by marking the tree on which he finds
it, however fixed and sincere may be his purpose to return and take
the comb into possession at a future day.* Fourthly, The thing
occupied must be of some value in use or exchange; otherwise the
animus possidendi would not arise, and tlie act of possession would
not be put forth. Rats and mice have an animus revertendi \\\\\c\\
man can only deplore in economics, because their a?iimus reveiiendi
cannot be made important from a utilitarian point of view. Dogs
have an animus revertendi, but it is held by Blackstone that dogs have
no intrinsic value at Common Law, as being "creatures kept for
whim and pleasure" and not for food. Dogs have intrinsic value
in Greenland, because there they are made ancillary to economic
ends. A pack of dogs kept as an instrument of hunting would seem
to have intrinsic value.

We see, therefore, that the law of occupation, as to animals, has
its ultimate foundation in the destination of creatures y^r^ naiurce
to subserve purposes of human utility. Hence, it does not surprise
us to find that when the Roman jurists came to expound the law of
usufruct they brought that law into careful coordination with the
law of occupation. The law of occupation was subordinated to the
law of usufruct. Whatsoever grew on a farm and whatsoever could
be gathered from a farm (under the limitations prescribed by usu-
fructuary law, to wit, ut boni viri arbitratu fruaiur') was held to be
fructus of the farm, for the reason that it had value in use and value
in exchange. Hence, if there were bees on a farm, it was held
that the usufruct of them pertained to the fructuary.f The refer-
ence here is not to swarms of wild bees flying across the fields or
settling by accident on a tree, for they are not property,^ but refer-

*Gluck : Ausfiihrliche Erlauteruug der Paudecten, Ser. xli, xlii, 174 ;
cf. also 7 Johnson (N. Y.), 16.
t Digest, vii, i, 9, O-
X Digest, xlvii, 2, 26.



BERING SEA ARBITRATION. 6

ence is made to domesticated bees kept in a hive for economic uses.
In like manner, we read in the same relation that pigeons which are
wont to be let loose from a pigeon-house are liable to be counted
among valuable assets in a proceeding at law for dividing an estate
among the toheirs, and this for the reason that " they are our prop-
erty so long as they have a hal)it of returning to us." " If anybody
shall cai)ture them," adds the text-writer, "we can properly bring
an action of theft against him." *

By parity of reason Pomponius argues, in another place, with
regard to a tame fowl, in which the animus revcrtcndi is the result
of training and not, as in bees, the result of natural instinct, that
" if you should hunt down my tame peacock, when it had escaped
from my home, until it perishes, I shall, in such case, have it in
my power to bring an action of theft against you, if anybody shall
have commenced upon him an act of ai)propriation." f

The jurisprudence of the civilized world is essentially one. The
rule of the Common Law coincides with the rule of the Civil Law
in regard to domesticated animals which have an animus revertendi
that is convertible to economic uses. Bracton early brought the
doctrine into English jurisprudence as a direct importation from
Roman law.;}; "The little busy bee " holds a high place in the
legal literature of the world, as well as in descriptive and didactic
verse, from the days of Homer to Dr. Watts. If Vergil devotes a
whole book of the Georgics to apiculture, it is because of the place
which apiculture had in Roman economics. If the text books from
Gaius to Blackstone take account of bees, it is because of the prop-
erty right which attaches to them. It has been ruled that where
bees escape from their owner's hive and swarm on a neighbor's land
the owner may reclaim them if he can identify them, though he
becomes liable to an action for trespass in entering on his neighbor's
land to repossess himself of them.§ The inability of the owner of
a personal chattel to retake it on the premises of another without
committing a trespass does not in the least impair the owner's legal
interest in the chattel. It only embarrasses the use or enjoyment
ofit.ll

* Digest, X, 2, 8, ^ I.
t Digest, xlvii, 2, 37.
J I Bracton (Twiss's ed.), 66, 67 ; cf. 2 Blackstone, 392-394.

I 2 Devereux (N. C), 162 ; 3 Biimey (Pa.), 546.

II 15 Wendell (N. Y.), 550.



6. COLUMBIAN UNIVERSITY STUDIED.

I have cited these principles in order to show in a clear light the
ingredients which, according to the written reason of the Roman
Law and the rulings of the Common Law, are held to create a
property right in animals having a habit of returning to a given
spot, if they are there placed under human custody for economic
ends. It is not, we see, the mere animus revertendi which consti-
tutes value, but the economic uses to which that auimiis reverte/uii
can be put after it has been husbanded by human art, and to which
it can be rightfully put, because it represents, at that given spot,
the husbandry of human labor and human skill. Where the animus
revertendi Q-AWwoX. be made the basis of economic use, no effort is
made by man to husband it. Where the animus revertendi already
exists in the case of certain animals, but where it is so vagrant, in-
considerable, and unmanageable that it cannot be counted on with
any degree of economic certitude, no effort is made by man to
profit by it on any considerable scale. The wild goose in all her
migrations has the instinct of return to her breeding place, but it
cannot be made the basis of economic purpose or valuation beyond
that vagrant purpose and inconsiderable valuation which move in
the right of individual capture — a right open to all men wherever
they find wild geese, unless they find them flying over land which
the proprietor has interdicted to the casual sportsman.

Modern jurisprudence, as everybody knows, has in great measure
transformed the right of game-capture from an ins hominis into an
lus dominii. Yet this transformation has wrought no change in the
reason and ground on which value is attached to certain animals
having an animus revertendi. The rule of law continues to depend
entirely on the degree to which that quality, under human regula-
tion, can be utilized for economic ends, and this utilization for
economic ends (as we see in the case of bees) is most immediately
available in the case of animals which have, by nature, an habitual
disposition of return which so ties them to a given place that the
habit may be directly used for economic purposes. The economic
aptitudes of such animals, if they be found in sufficient numbers to
make their inclosure or husbandry an object of gain, can be made
at once the basis of economic computation — a basis of computation
almost as fixed as the soil to which they are tied by the habit of
return.

For it is precisely in proportion as the animus revertendi of useful
animals is a stable quality that it lends itself to economics. If at



BERING SEA ARBITRATION. 7

any place a breed of lioming pigeons could be found which should
have, by nature, the homing instinct, that breed would at once be
taken under lunnan tutelage. The industry spent in creating and
conserving a homing instinct in the artificial variety would be spent
in protecting and conserving the newly discovered breed which had,
by natural heredity, that valuable peculiarity; and, other things
being equal, still higher sanctions of property would attach to
pigeons of such a breed, because, so far as they were taken into
human custody, a violation of the property-right in them would be
still more injurious to the interests of public and of private economy
based on the perpetuation of this more useful variety.

It would seem that these facts in the economics of natural history
and the rules of law which have been based on them are not with-
out their application to the controversy now pending between the
United Stales and Great Britain with regard to the capture on the
high seas of fur-seals which have their birthplace in Alaska, and
which, in all their pelagic migrations, are known to have an animus
revertendi which gives to the breed a calculable value at the point of
fixed return. This animus revertendi, it is true, is not the creation
of human art in seals, any more than in bees; but for the very rea-
son that it has a fixed quality it can be made, under proper control,
the more tributary to man's emolument. On the faith of this in-
stinct, and of the property-right which it conditionates and assures
so long as it is not disturbed, the Government of the United States
has done infinitely more for the Alaskan seals which it husbands
than the most enthusiastic apiculturist has ever essayed to do for
the honey bees which he may have domesticated and inclosed in
patent hives of the latest construction and most costly variety. The
highest resources of state-craft, of administrative policy, of police
control, and even of international diplomacy have been put in requi-
sition for the protection of the fur-seal breed, on the ground that
the fur-seal husbandry is a factor in our national economics, as well
as in the economics of the world; and on the further ground that
depredations committed on the seal herds in their pelagic migra-
tions must lead eventually to the destruction of the fur-seal species
in Alaska (as has happened elsewhere), and so must inure to the
economic detriment of the United States. It is further argued that
the capture of seals in their periods of annual migration is attended
with circumstances of wanton barbarity and of wasteful excess,
which should be prohibited in the interest of public and private
morality.



8 COLUMBIAN UNIVERSITY STUDIES.

The Government of the United States avers that the Alaskan
seal is an amphibious animal, which has its fixed home on Alaskan
islands, and that from this home it never long departs, because of
its fixed animus reve7-tendi ; that this fixed animus 7-evertendi gives
to the breed an economic aptitude of great value ; that the seal
herds, in their periodical migrations, however far they may roam
from land, can still be definitely related to the soil on which they
increase and multiply; that the destruction of seals in their pas-
sage to their breeding places, when the mother seals are heavy
with young, or the destruction of seals as they go forth from the
Alaskan rookeries to secure food on the high seas in order to nurture
their new-born progeny, involves a reckless waste of valuable animal
life, does despite to the qualified property right of the United States,
evicts by violence the habitual animus rcvcrtendi which is the instru-
ment of that right, and so tends to work the gradual but certain
extinction, for commercial ends, of a species in which the economy
of the civilized world has an interest ; that the United States have
in the seal husbandry of Alaska a vested right, in so far as the value
of the fur-seals may be said to have entered as a consideration into
the purchase-money paid to Russia for Alaska, and in so far as the
annual value of the fur-seal usufruct, farmed out by the Government
of the United States, has been administered with a sedulous regard
to the preservation of the breed.

The Government of Great Britain is understood to affirm that fur-
seals are indisputably animals y^r^ naiurce ; that these have uni-
versally been regarded by jurists as res nuUius until they are caught;
that property can vest in them only so long as a person has reduced
them into possession by capture ; that the qualified right of j^rop-
erty for which the United States contend in the case of the seal
herds during their periods of pelagic migration is not sound, either
in fact or in law, and that, as to such seal herds, on the high seas,
it is not competent for the United States, or for any " private in-
terest " holding under them, to assert any priority or pre-eminence
of right. To this effect Sir Julian Pauncefote, in his communica-
tion of April, 1890, held the following language:

" It has been admitted from the commencement that the sole
object of the negotiation is the preservation of the fur-seal species
for the benefit of mankind, and that no considerations of advantage
to any particular nation or of l>enefit to any private interest should
enter into the question.'^



BERING SEA ARBITRATION. 9

In a dispatch under date of May 22, 1890, Lord Salisbury wrote :

" Her Majesty's Government would deeply regret that the pursuit
of fur-seals on' the high seas by British vessels should involve even
the slighest 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 wotild be
unable on that ground to depart from a principle on which free com-
tnerce on the high seas depends.

For the purposes of the following discussion it is not pretended
that the exploded doctrine of mare clausum should be installed in
place and power to protect an interesting and valuable species of
animals. The doctrine o{ mare liberum, as expounded by Grotius,
need not be imj^eached; but the doctrine of 7?iare liberum is itself
a juristic conquest — a conquest which in the progress of juridical
ideas among the nations of the earth has been slowly gained over
the doctrine o{ mare clausum as formerly asserted by Great Britain,
Spain, and Portugal. The modern doctrine is juristic in its genesis,
and therefore cannot come in conflict with the juristic rights of the
United States, if they have any, in the Alaskan seal herds found on
the high seas. The rationale of the doctrine oi mare liberum is well
summed up by Hall when he says: " It is commonly stated that
the sea cannot be occupied, it is indivisible, inexhaustible, and pro-
ductive, so far as it is productive at all, irrespectively of the labor of
man ; it is neither physically susceptible of allotment and appropria-
tion, nor is there the reason for its appropriation which induced
men to abandon the original community of goods." -i^

But the Government of the United States maintains that the Ber-
ing sea, so far as it is "productive" of x-llaskau seals, is not now
and will not long remain a nursery of seals ^^ irrespectively of the
labor of many Much of labor has been expended by the United
States for the safe guarding of the seals in their breeding places.
The sea has been patrolled by American cruisers for the protection
of the seal herds. A "close season " has been concerted between
the governments of the United States and Great Britain for the
restriction of seal slaughter; and it is because the permanent pro-
tection of the seal herds calls for international action beyond the
maritime jurisdiction of the United States that the arbitration of a
mixed commission has been invoked, to the end that by its verdict

* Hall : International lyaw, p. 148.



10 COLUMBIAN UNIVERSITY STUDIES.

the " important element of finality maybe secured" as between
the two governments most immediately concerned, and to the
further end tliat a firm basis may be laid for the lasting settlement
of the question by providing for the adhesion of other govern-
ments.

To the writer of this paper it does not seem that the United
States, in the purchase of x\laska from Russia, bought along with it
a mare clausum in the Bering sea. The United States could not
buy more tlian Russia had to sell. But the United States could\iwy
from Russia a right to the undisturbed enjoyment of the Alaskan
seal usufruct on sea, as well as on land, for this is a right which
Russia enjoyed and a right which, attaching as it does to animals
having the animus revertendi, is rooted in a rule of reason and of law
as old as the property law of historical jurisprudence. The rule


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Online LibraryJames Clarke WellingThe Bering Sea arbitration; → online text (page 1 of 3)