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Mr. Blaine, as Secretary of State under President
Harrison, promptly reversed Mr. Bayard's policy of peace
and amity, and proceeded to twist the lion's tail.

In view of the early indorsement of Secretary Bayard's
plan by Mr. Gresham, his subsequent action in the Bering
Sea controversy cannot be laid, as some of his critics of
that time did, to ill will toward Mr. Blaine and General
Harrison. On many public questions he had been opposed
to Mr. Blaine from the start. Besides, Blaine and Har-
rison themselves were not in perfect accord in the Bering
Sea controversy. Certain it is, Mr. Gresham differed from
them. His opposition not only to their tariff but also to
their jingo policy had led him to vote against General
Harrison at the polls. Why anyone should expect him to
carry out the policy he had thus emphatically condemned,
I cannot understand. In striking contrast with the differ-
ences between President Harrison and Secretary of State
Blaine, Walter Q. Gresham as Secretary of State was in ac-
cord with Grover Cleveland as President, and with Thomas
F. Bayard, then ambassador to the Court of St. James.

Under Mr. Blaine's orders, the revenue cutter Rush
overhauled and took possession of six or seven Canadian
sealers. The first seizure was made July ii, 1889. The
Canadians raised a great uproar and protest that extended
from Victoria to Ottawa and thence to London. Lord
Salisbury protested, and intimated that further seizures on
the high seas would be resented. Public opinion, both in the
United States and in England, no matter how much the
Canadians and American jingoists howled, would not stand
for war, so Blaine and Harrison receded and finally, Feb-
ruary 28, 1892, a treaty of arbitration was signed and in a
short time was ratified by the United States Senate.

The language of the diplomatic correspondence was :

The sole object of the negotiation is the preservation of the
fur seal species for the benefit of mankind, and no consideration
of advantage to any particular nation, or of benefit to any private
interest, should enter into the question.


But this language did not enter into the treaty. Its
absence laid the United States open to the charge, which
was made before the Paris Tribunal assembled, and also
before that body, that she was endeavoring to protect the
seals for the sole benefit of the lessees.

Meanwhile, under a special act of Congress approved
April 5, 1890, Henry W. Elliott, still connected as a natur-
alist with the Smithsonian Institution, was sent by Secretary
of the Treasury Windom to the Pribilof Islands with plenary
powers to examine again into seal life and the killing of the
seals on land as well as on sea. Mr. Elliott was on the
Pribilof Islands from May 20 to August 14, 1890. Not-
withstanding the new lessees had protested bitterly, Secre-
tary Windom had stopped all killing on the islands on the
30th of July. Elliott recommended that killing, both on
land and sea, be stopped for a period of years. His con-
clusion was supported by a report of 389 pages in man-
uscript, with fifty-eight plates, twelve seal charts, maps of
the rookeries, and two general maps.

It was September 7, 1890, when Elliott first reported
to Secretary Windom. But Mr. Elliott always claimed
that Mr. Blaine said then it would not do to publish his
report, because its publication would enable the Canadians
to say it was the killing on land that was decimating the
herd. Not until 1896, under an order of Congress, was
this report published.

So instead of following Mr. Elliott's report, which carried
out Mr. Bayard's idea and could have been put through,
Mr. Blaine was induced by Stephen B. Elkins to suggest,
December 17, 1890, to Great Britain that our government
would be content if the Canadian government would ac-
cept a sixty-mile zone around the Pribilof Islands within
which pelagic sealing should be prohibited. A sixty-mile
zone would have left Mr. Elkins' company not only free
upon the land but also at sea, for we have seen that the
female seal, during the nurturing season, went as far as


one hundred and fifty to two hundred miles away from the
Islands. But Lord Salisbury preferred to arbitrate rather
than accept any of Mr. Blaine's propositions.

The questions to be determined resolved themselves
into three:

1. Did the United States have exclusive jurisdiction
over the waters of Bering Sea outside of the three-mile limit
from the shore?

2. Did the United States have a property interest in
every seal born and bred on the Pribilof Islands? (Our con-
tention was that they were domestic animals; the Canadian
or British claim was that they were fercu natura.)

3. In the event of the adjudication being adverse to
the United States on the first tw^o questions, then the
arbitrators should determine what concurrent regulations
were necessary for the proper protection and preservation
of the fur seal in or habitually resorting to Bering Sea.

The first proposition was Mr. Blaine's, the second was
President Harrison's. They never were in accord. John
W. Foster urged the second as sound. When lawyers like
Senators Edmunds and George F. Hoar told Mr. Blaine that
"no international court would hold with the United States
on the first two," he added the third, in order to secure
the ratification of the treaty by the Senate. And the pres-
entation of the third, Mr. Foster says in his official report,
was unfortunate in that it suggested to the neutral arbi-
trators a doubt as to the soundness of the first two claims
of the United States.

May I, 1892, John W. Foster w^as appointed by President
Harrison agent, on behalf of the United States, to prepare
the case. From the standpoint of ability and experience
as a manager, a better selection than Mr. Foster could not
have been made. But in handhng a case in a courtroom,
the actual trial of a lawsuit, Mr. Foster was without experi-
ence. Many of his American clients were closely allied, at
least in sympathy, with the lessees. Since 1884 Mr. Foster


had been practising his profession of international law in
Washington. Associated with him as chief counsel for
the United States was Edmund J. Phelps of Vermont. Mr.
Phelps had been the American minister to the Court of
St. James during the first Cleveland administration, but he
had not been in complete harmony with Mr. Bayard in
recognizing Great Britain's right to take the seals in the
open seas, that is, outside of the three-mile limit, and
entering into an agreement with Great Britain whereby the
taking of seals at sea, pelagic sealing, should be prohibited.
To stop pelagic sealing involved stopping killing on land,
on the islands, and to this Mr. Phelps was opposed. As a
lawyer, Mr. Phelps's employment mainly was, both before
and after this time, with interests associated with the lessees.
The other American counsel, James C. Carter and F. R.
Coudert, trailed Mr. Phelps. Mr. Coudert's employment
was peculiar, as will appear farther on. There were lesser
legal lights, one Robert Lansing, a son-in-law of Mr. Foster ;
also numerous clerks and so-called "experts." Our "expert
naturalists" could not really qualify as such, because they
were compelled to admit they were on the Islands so short
a time that their testimony was valueless before the Tribu-
nal. The Canadians kept their men there for over a year

Federal Judge H. W. Blodgett was of counsel for the
United States before the Commission, and he kept Secretary
of State Gresham well advised of the progress made.

When the final break between Mr. Blaine and General
Harrison came and Blaine resigned as Secretary of State,
June 6, 1892, Mr. Foster was made Secretary of State, but
continued as agent of the United States in managing the
preparation of the Bering Sea case. As Secretary of State
he agreed with himself as agent as to what his compensation
as agent should be. He agreed with Messrs. Phelps and
Carter as to their compensation, $10,000 each and expenses.
They contemplated, and publicly they claimed, a short


hearing and a sure victory. Mr. Foster agreed with our
arbitrators as to what their compensation should be, $10,000
each. All this was set forth in orders and directions Mr.
Foster put on the records of the State Department.

Great Britain, or more properly, the Dominion of
Canada, was represented by the British Attorney-General
and Solicitor-General, Sir Charles Russell and Sir Richard
Webster, by Charles H. Tupper as agent, and by a corps
of lesser Hghts.

The American arbitrators, Justice Harlan and Senator
Morgan of Alabama, had proceeded to Paris before Judge
Gresham went to Lakewood, so that Senator Morgan did
not, as he desired to do before sailing, meet the incoming
Secretary of State for a conference, as Mr. Cleveland had
stated in his letter of February 7, 1893, to Judge Gresham.'

The arbitrators, on behalf of Great Britain, were the
Right Honorable Lord Hannen, Lord of Appeals, and Sir
John Thompson, Minister of Justice and Attorney-General
of Canada.

In most arbitrations, the arbitrators of the parties are
partisans. Such proved to be the case as to the American
arbitrators, especially Senator Morgan. Neither the Ameri-
can nor the British arbitrators participated in the final
conference that decided the case. After the open hearing
was concluded, behind closed doors there was an argument
before the neutral arbitrators by the American and English

The real judges, as Mr. Foster called them, "the neutral
arbitrators," or to use the language of the treaty, "jurists
of distinguished reputation in their respective countries,"
were three in number, and according to the treaty, were
named one each by the President of France, the King of
Italy, and the King of Norway and Sweden. They were
Baron Alphonse de Courcel, Ambassador of France, who
was made president of the Tribunal at its first meeting;
Marquis Emilia, Viscompte Venosta, former Minister of

1 See page 684.


Foreign Affairs and Senator of the Kingdom of Italy; and
Mr. Cregor Grain, Minister of State of Norway.

After the conference with Mr. Cleveland at Lakewood,
February 22, 1893, Judge Gresham met Secretary of State
Foster in New York. At this New York conference with
Mr. Foster, Judge Gresham frankly expressed his doubts
about our ability to sustain our contention before the Paris
Tribunal, but assured Mr. Foster that every aid the in-
coming administration could give him in managing the
case would be extended him. "The issues have been made
up and we must stand or fall by what you and our counsel
have submitted by way of evidence and printed argument,
and what you and they may do before the Tribunal."

One reason Judge Gresham gave Mr. Foster why he
feared we would fail, was that while he favored the arbi-
tration of international disputes, the United States could
not expect to get the benefit of the doubt when the majority
of the arbitrators were Europeans.

March 3, Mr. Foster, with many of the co-counsel,
treasury agents, and "experts," sailed for Paris. On the
same day President-elect Cleveland received the following
letter from Mr. Phelps:

Clarendon Hotel, N. Y., March 2, 1893.
My de.\r Sir; —

You will remember our conversation in respect to the engage-
ment of Mr. Coudert as one of the counsel in the Bering Sea
arbitration. In ])ursuance of it, Mr. Coudert has been engaged
and has rendered very useful service.

It is now necessary that he should go to Paris by the steamer
of the nth instant, at the very latest, as otherwise he would not
arrive in time for the trial. He has never yet received a formal
authority from the State Department to act as one of the counsel.
His retainer was with the assent of Mr. Foster, Secretary of State
and agent of the United States in this case; but owing to certain
embarrassments of the President in respect to other gentlemen,
not necessary to mention, it was desired by Mr. Foster that the


formal authority to Ivlr. Coudert should not be issued until after
the new administration came in.

It is important now, therefore, that it should be sent to him
without delay, and even without waiting for the induction of
Judge Gresham into the Department. Will you kindly direct
whoever may be in charge of the Department on Monday next,
to send such a formal letter to Mr. Coudert, as by direction of
the President, simply engaging him as one of the counsel in the
Bering Sea arbitration. His address is F. R. Coudert, Esq.,
68 William Street, New York City.

I very much regretted being unable to reach Lake wood on
Wednesday in time to see you before you left for Washington,
but the situation of my affairs in Burlington, by reason of leav-
ing here for so long an absence, was such that it was quite im-

As Mr. Foster had an interview with Judge Gresham here
last week, I hope he may have put him in possession of all the
points necessary to be referred to.

I am, sir, with much respect,

Very sincerely yours,

E. J. Phelps.

Mr. Cleveland held the letter and turned it over to
Judge Gresham, who arrived in Washington the afternoon
of the 4th.

The British agent was provided with ample funds, and
he, his subordinates, and the British arbitrators, all enter-
tained lavishly during the hearing. So profuse were their
expenditures that Mr. Foster recommended that the allow-
ances to our arbitrators and counsel be increased that they
might return some of the invitations that were extended
to them. The allowances of the arbitrators were promptly
ncreased as Mr. Foster recommended, and although, as
we have shown, the counsel agreed to act for a stipulated
sum, their allowances were also increased, although it took
a deficiency appropriation bill to pay all our expenses at
Paris, including the additional counsel fees.

At the first formal session of the Paris Tribunal, April 4,


1893, the British counsel asked that the agent of the United
States be ordered to produce the report made by Henry W.
Elh'ott, pursuant to an Act of Congress of April, 1890, on
the subject of fur seals in Alaska. This report, as before
stated, had not been published. Objecting to the right of
the English government to call for this report, still the
American counsel said they would produce it to be used on
either side. There was no use to which the American coun-
sel could put it, because it showed from an American source
what the Canadians were contending for, that it was not
pelagic killing alone that was decimating the herd, but also
land killing by the lessees; and that instead of the United
States desiring to preserve the seal species for the benefit
of mankind, it was really standing for private interests,
for Stephen B. Elkins, D. O. Mills, and the Californians
of old.

The production of this report caused our counsel to recast
our case, which they did at much expense and great labor.
Instead of a short hearing, it was extended to weeks.

During the argument on the motion to produce the Elli-
ott report, James C. Carter and Senator Morgan attacked
Henry W. Elliott. In an open interview in the Cleveland
Plain Dealer, Professor Elliott answered. He claimed that
he had taken his report to Mr. Blaine and that Mr. Blaine
had deliberately suppressed it. He said that the lessees
had been violating the terms of the lease in taking on the
island females and yearlings, contrary to the Federal stat-
utes and the terms of the lease, and that the treasury
agents who in 1890 were honest and believed in enforcing
the lease, had been removed. This interview was repro-
duced in Paris, and, of course, all the neutral members of
the Tribunal read it. Then many of the newspapers at-
tacked Agent Foster, our counsel, and our arbitrators. They
claimed that Mr. Foster was spending too much money
in Paris, and that the government officers, including our
arbitrators, who were under regulation salaries, should not


be allowed anything in addition while representing the
government before the Paris Tribunal. During this time
Mr. Foster wrote Secretary Gresham many letters com-
plaining about the newspaper attacks. He said they all
emanated from an employee of the State Department who
was hostile to him and had been in the State Department
prior to Secretary Gresham's coming. An investigation,
however, developed that the employee had had nothing to
do with inspiring the attack. He was absent all this time
ill in bed. The newspaper man who started the story
frankly asserted he had received his first information from
seeing vouchers for additional payments in the Treasury
Department. But who else had aided him, he refused to

That every aid was rendered Mr. Foster by the Cleve-
land administration is conclusive from a statement of
Mr. Foster in a letter to Secretary Gresham of August 23
1893, accompanying Mr. Foster's official report:

But I cannot close without expressing to you my hearty
thanks for the ready response which you have always made to
my requests and recommendations as agent.

On every point we were beaten. Promptly on the claim
to jurisdiction beyond the three-mile shore line and that
the seals were our property because they were domestic
animals. The neutrals held that we had no right to such
jurisdiction and that the seals were fercB naturae. It was on
the regulations that the contest raged, and that we were
defeated on them is manifest from the dissenting opinions
of Justice Harlan and Senator Morgan.

The regulations recommended allowed pelagic sealing
outside of the zone of sixty geographical miles around the
Pribilof Islands. They provided for a closed season on the
high seas north of the 35 th degree of North latitude and
eastward of the i8oth degree of longitude from Greenwich
from May i to the 31st of July. Only sailing vessels could


engage in pelagic sealing during the open season. But on
these vessels the native fishermen could continue to be em-
ployed. The use of nets, explosives, and firearms of all
kinds, except shotguns, was prohibited. It was to the
continued use of the shotgun that Senator Morgan most
strenuously objected.

The sixty-mile limit was, as we have seen, Mr. Blaine's
suggestion. The Indian fisherman with his spear and un-
erring aim was the most deadly enemy of all to the seal,
because when one seal was shot a hundred were warned
away, while the Indian did his work noiselessly.

Not only were we defeated on every proposition, but
Secretary of State Gresham thought the positions of our
counsel and arbitrators reflected but little credit on the
American bar and judiciary.

This appeared when, in response to the question of
Baron de Courcel why, under that clause of the treaty which
authorized the arbitration to determine what concurrent
regulations were necessary for the proper protection and
preservation of the fur seals at or habitually resorting to
Bering Sea, a closed season on both land and sea could not
be ordered, Messrs. Phelps, Carter, and Coudert asserted that
under the treaty of arbitration the arbitrators were power-
less to suggest regulations to stay the slaughter on land.

When the evidence showed that any regulations short
of a prohibition of pelagic sealing would result in the total
destruction of the seal herd, and our counsel and arbitrators
urged that the regulations should totally prohibit the tak-
ing of seals at sea, Canadian Arbitrator Sir John Thompson
said that if the treaty as the American counsel contended
did not contemplate a closed season on land, it could not
possibly have been contemplated that the Canadian fisher-
men should be excluded from the sea, and he agreed with
them that regulation was not prohibition.

Accepting this interpretation of the treaty as he was
forced to do, although he said it was a reflection on the


intelligence of President Harrison, Secretary of State Blaine
and the United States Senate, in unanimously ratifying it,
•Justice Harlan proposed to adjourn the Tribunal without
a decision, and pending the adjournment let the two "high
contracting parties" so amend the treaty that the Tribunal
would have the power, if it appeared necessary to preserve
the seals, entirely to prohibit pelagic sealing. But Justice
Harlan said the United States would never consent to
vesting in^any arbitral tribunal the power to stop the kill-
ing of the seals on the islands; that would be an inva-
sion of her sovereignty. The language of the diplomatic
correspondence as we have quoted it certainly contem-
plated arresting the slaughter on the islands.

Instead of adjourning, the neutral arbitrators deemed
it their duty to decide as best they could with what was
before them. They held that the power to regulate the
taking of the seal^ in the open sea did not comprehend the
power to prohibit.

Then the Tribunal, going entirely outside of its province,
as Secretary of State Gresham said, handed Justice Harlan
and the United States this poser. It recommended that by
a new treaty to be negotiated by the two powers, all killing,
both on land and sea, be prohibited for a term of years.
Beaten on the regulations for taking seals in the open seas.
Secretary of State Gresham said to our arbitrators and coun-
sel: "We cannot ask Great Britain to restrain the Canad-
ians so long as the legislation we have on the statute books
permits our people to slaughter or exterminate the seals on
land." Later it will appear how he proposed the only
remedy, that of the repeal of the legislation of 1869-18 70.

After the hearing was over, Messrs. Carter, Phelps, and
Coudert said the case had been badly made up and badly
prepared, and they differed amongst themselves as to what
had been done and what should be done. But in true
lawyer style, they united in cursing the court. The respon-
sibility of defeat, Agent Foster said was not his!


In his autobiography Mr. Foster says Judge Gresham
was no diplomat. Possibly he is correct. For after ac-
knowledging in his official report our defeat on every point,
Mr. Foster joined our counsel and arbitrators in publicly
proclaiming we had won a victory. Mr. Phelps and Mr.
Lansing, Mr. Foster's son-in-law, were particularly insistent
on this; also Senator Morgan, although he wrote Secretary
Gresham on August 28 that we would be defeated, not only
on our claim of property in the seals and jurisdiction beyond
the three-mile line, but also on the proposed regulations.
This was in connection with Justice Harlan's plan to force
an adjournment of the hearing, that the treaty which he
said had been wrongly drafted might be amended — in
other words, escape the oncoming verdict. Secretary of
State Gresham believed in making a practical application
of the doctrine — even if it be the first — ' ' that there is
such a thing as international morality." So no sanction
was given to the proposition to break up the hearing; and,
in his answer to Mr. Foster's claim that we had won a vic-
tory, he wrote on September 3 :

I do not believe it is right to seek to make the impression that
we succeeded in our contentions before the Tribunal, for we did
not.' The decision having been adverse to our claim, the arbi-
trators then prescribed regulations for the preservation of the
seal — not, however, as our property.

The Paris Tribunal decided that we were liable for the
seizures of the Canadian vessels in Bering Sea in 1886 and
1890, but left the amount of damages to be adjusted by
the high contracting parties. Secretary of State Gresham
and Sir Julian Pauncefote agreed on $425,000 as the amount.
Congress, under the lead of Senator Morgan and the Repub-
lican jingoists, refused to sanction the settlement. Instead,
a joint commission met at Vancouver, heard evidence, and
awarded the Canadians $473,000, which we paid, and also
a big bill of costs.

That Senator Morgan was an unfit man as an arbitrator


in any controversy is manifest when it is considered that
in the beginning of his argument behind closed doors and
before the neutral arbitrators had made the regulations
they recommended, he said that the United States would
not be bound by these regulations if made. And he cer-
tainly afterwards did his best to prevent our observing them.
A professed Democrat, Senator Morgan always stood for

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