Senator Morgan thereupon submitted the following motion: "I propose to amend the proposed award and decree by inserting, after the words not any, the word special, and at the end of the proposed award and decree, the following words: beyond the rights that all nations have under the international law, in respect of self-protection and self-defense.'

"So that the entire award, as to point five in Article VI. of the treaty, would read as follows, viz: As to the fifth of the said

were met, as they might be, at the shore of the islands and driven back into the water? Would they remain on the islands during the breeding season except for the care taken, under regulations prescribed by the United States, to induce them to do so, and except for the protection afforded them, while on the islands, against the pursuit of seal hunters having in view immediate profit for themselves rather than the preservation of these animals for the benefit of mankind? Neither hive,

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box, park, nor other inclosure, has been provided for them, as in the case of bees, pigeons, and deer, respectively, because such a provision is forbidden by the nature and habits of the animals, and would be absolutely useless for any practical purpose. But an abiding place for all the purposes for which they must, of necessity, come to and remain upon land, has been provided for them. Upon the discovery by Russia of the Pribilof Islands it was ascertained that this race made it their land home. Russia desired this condition of things to continue in order that these animals might be utilized for public and commercial purposes, and to that end regulations were established restricting the number to be taken annually for such purposes. That system has been perpetuated and improved by the United States. We have seen that by an act of Congress, passed soon after the United States acquired Pribilof Islands, the islands of St. Paul and St. George were set apart as the land home of these animals. It is said that these islands, before their discovery by Russian navigators, were the land home of these animals, and, consequently, that the seals were not provided with that home by Russia or by the United States, which succeeded to Russia's rights. The answer is, that after such discovery the islands of St. Paul and St. George have continued, for more than a century, to be the land home of these animals only because Russia, and subsequently the United States, so ordered. If the United States desired to establish a naval post on Pribilof Islands, or to use those islands for any other public purpose different from those for which they have been used since 1867, it could easily drive the seals back into the sea when they attempted to ‘haul up' on the islands during the breeding season.

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But no such treatment is, in fact, accorded to them. On the contrary, the islands are preserved for their use as a land home." (Fur Seal Arbitration, I., 132, 140, 157, 160–163.)

Senator Morgan having voted that Russia formerly asserted and exercised exclusive rights as to the protection of the fur seals in Behring Sea, with the assent of Great Britain and other powers, maintained that the United States had a right to protect the fur seals habitually resorting to Behring Sea, on the ground, among others, of prescription. (Fur Seal Arbitration, I., Opinion of Senator Morgan, p. 52.)

points, we, being a majority of the said arbitrators, do decide and determine that the United States has not any special 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, beyond the rights that all nations have, under the international law, in respect of self-protection and self-defense."

Mr. Justice Harlan and Senator Morgan cast their votes for this amendment, stating that as their views, as above set forth, upon the question of property and protection were not accepted by the majority, they would prefer that the answer to the fifth point should be expressed in the words indicated by the amendment rather than in the words approved by the majority.

Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram voted against the proposed amendment.

Baron de Courcel abstained from voting.

In consequence the amendment proposed by Senator Morgan was rejected.

The Limits of Territorial Waters.

Mr. Gregers Gram expressed the desire that it should be understood that the tribunal, in answering the foregoing questions, had not undertaken to decide what were, according to the principles of international law, the ordinary limits of territorial waters.'

1 During the oral arguments, while the legislation of various states touching fisheries more than three miles from land was under discussion, Mr. Gregers Gram read the following paper:

"The Appendix Volume I. to the United States Case gives the text of the law and regulations relating to the protection of whales on the coast of Finumarken. It was my intention later on to explain to my colleagues. these laws and regulations in supplying some information about the natural conditions of Norway and Sweden which have necessitated the establishment of special rules concerning the territorial waters, and to state at the same time my opinion as to whether those rules and their subject-matter may be considered as having any bearing upon the present case. As, however, in the latest sittings reference has repeatedly been made to the Norwegian legislation concerning this matter, I think it might be of some use at the present juncture to give a very brief relation of the leading features of those rules.

"The peculiarity of the Norwegian law quoted by the counsel for the United States consists in its providing for a close season for the whaling. As to its stipulations about inner and territorial waters, such stipulations are simply applications to a special case of the general principles laid down in the Norwegian legislation concerning the gulfs and the waters washing the coasts. A glance on the map will be sufficient to show the great number

The arbitrators concurred in the opinion that they were not called upon to decide what were, according to the principles of international law, the ordinary limits of territorial waters, those limits having been assumed by Article VI. of the treaty to be three miles from the coast.

Senator Morgan here asked that the followThe Rights of Indi- ing motion be taken into consideration:

viduals as to the

Taking of Seals.

"I move that the Tribunal of Arbitration proceed in such order as may be proper, before a final award is made in the case, to consider and declare the rights of the citizens and subjects of either country as regards the taking of fur seal in or resorting to the waters of Behring Sea.

"This inquiry and decision includes the entire herd that resorts, habitually, in the summer and autumn, to the islands of St. Paul and St. George, in Behring Sea.

"The answers given to the five points stated in Article VI. of the treaty do not, in my judgment, answer the question above stated, which the treaty provides shall be submitted to the Tribunal of Arbitration; and an award that does not specifically answer that question can not be a full, perfect, and final settlement of all the questions referred to the arbitration.' of gulfs or fiords and their importance for the inhabitants of Norway. Some of these fiords have a considerable development, stretching themselves far into the country and being at their mouth very wide. Nevertheless, they have been from time immemorial considered as inner waters, and this principle has always been maintained, even as against foreign subjects.

"More than twenty years ago a foreign government once complained that a vessel of their nationality had been prevented from fishing in one of the largest fiords of Norway, in the northern part of the country. The fishing carried on in that neighborhood during the first four months of every year is of extraordinary importance to the country, some 30,000 people gathering there from south and north, in order to earn their living. A government inspection controls the fishing going on in the waters of the fiord, sheltered by a range of islands against the violence of the sea. The appearance in these waters of a foreign vessel pretending to take its share of the fishing was an unheard-of occurrence, and in the ensuing diplomatic correspondence the exclusive right of Norwegian subjects to this industry was energetically insisted upon as founded in immemorial practice.

"Besides, Norway and Sweden have never recognized the three miles limit as the confines of their territorial waters. They have neither concluded nor acceded to any treaty consecrating that rule. By their municipal laws the limit has generally been fixed at one geographical mile, or one-fifteenth part of a degree of latitude, or four marine miles, no narrower limit having ever been adopted. In fact, in regard to this question of the fishing rights, so important to both of the United Kingdoms, the said limits have in many instances been found to be even too narrow. As to this question and others therewith connected, I beg to refer to the communications presented by the Norwegian and Swedish members in the sittings of the Institut de Droit

"I would proceed to point out the grounds and reasons on which I base this motion, but I am aware that, in the opinions delivered by a majority of the arbitrators, they consider either that this question is not required by the treaty to be specifically answered or that it has been answered, in effect, by a decision of a majority of the tribunal upon the fifth point stated in Article VI. of the treaty, under which the tribunal is acting."

This motion gave rise to a debate.

Mr. Justice Harlan and Senator Morgan voted for its adoption.

Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, constituting a majority of the arbitrators, considered that the answers to all the questions referred to in Article I. of the treaty were to be found in the decisions which had been rendered on the five points mentioned in Article VI.

In consequence, the motion was rejected.

Regulations.

The decisions on questions of law having The Question of left the subject in such position that the concurrence of Great Britain was necessary to the establishment of regulations outside territorial waters, the

International in 1891 and 1892. I wish also to refer, concerning the subject which I have now very briefly treated, to the proceedings of the conference of Hague, in 1882 (Martens, Nouveau Recueil général, II. série, Volume IX.), containing the reasons why Sweden and Norway have not adhered to the treaty of Hague."

In the course of the same discussions, when Mr. Coudert was citing the Italian decrees in relation to the coral fisheries, the Marquis Visconti Venosta said:

"I will say in regard to the observation of Mr. Coudert that the Italian decrees do not apply to foreigners. The three decrees cited in the Case of the United States are an addition to the regulation of November 13, 1882, which is made to apply the law of March 4, 1877, on fishing, and this law in its first article, as well as the regulations, limits their zone of application to the territorial waters. The coral banks of Sciacca, where fishery was forbidden for some time, are outside the territorial waters; so those decrees were not applicable to foreigners if they went there; but the industry, in fact, is exclusively carried on by Italian citizens. I must add, however, that this prohibition has now been repealed.

“Mr. COUDERT. Yes, I was coming to that question-the distinction between citizens and foreigners, and the privilege that the rule would give to foreigners over citizens. Of course, if as the arbitrator says, and I desire to be instructed by him.

"Marquis VISCONTI VENOSTA. It is a question of fact."

When Sir Charles Russell referred to this colloquy in his oral argument the Marquis Visconti Venosta said: "The question of fact is that this does not apply to foreigners." (Fur Seal Arbitration, XIII, 367.)

arbitrators proceeded in accordance with the treaty to determine what such regulations should contain.

Mr. Justice Harlan, with the support of Senator Morgan, offered a resolution to the effect that the purpose of Article VII. of the treaty was "to secure, in any and all events, the proper protection and preservation of the herd of seals frequenting the Pribilof Islands;" and that "in the framing of regulations, under the treaty, no extent of pelagic sealing should be allowed which will seriously endanger the accomplishment of that end."

Lord Hannen and Mr. Gregers Gram declined to vote on this resolution, on the ground that it was too abstract.

Sir John Thompson also declined on the ground, among others, that the treaty did not empower the tribunal to make provision for the preservation of the seals "in any and all events," notably "on their breeding grounds."

The Marquis Visconti Venosta voted against the resolution. He remarked that, in order to insure the preservation of the seals, regulations ought to be provided for the land as well as for the sea and accepted by all nations whose citizens might compete in pelagic sealing; but that, as this was beyond the powers of the tribunal, the arbitrators could only make such regulations as they deemed proper within the limitations of the treaty and then express the wish that those regulations might receive their necessary complement within the territorial jurisdiction of the two countries and be made the subject of an understanding with other nations.

Baron de Courcel voted against the resolution as being too abstract. He also thought that the treaty, when it provided for regulations for the proper protection and preservation of the fur seals, intended that given circumstances should be taken into account; and he expressed the opinion that the regulations should be made, not in the absolute interest of the seal species, but in the interest of the human industries of which it was the object, whether such industries were exercised on land or on the sea, and without favoring one to the detriment of the other.

The resolution consequently was rejected.

Mr. Justice Harlan, supported by Senator Morgan, then offered another resolution, to the effect that it was the duty of the tribunal to establish such regulations for nonterritorial waters in Behring Sea and the north Pacific Ocean, traversed by the fur seals in or habitually resorting to Behring Sea, as