recognition by other nations between coasts north and south of 60° of north latitude; and that there was no evidence of the exclusion of foreign ships from Behring Sea, or from seal hunting therein, beyond the Petroff interpolations, which had been withdrawn. As to the claim of a right to protect the seals outside of the three-mile limit, the British Counter Case said, among other things, that if the identification of each seal and its annual return to the Pribilof Islands were assumed as facts, the United States could "show no title without proof that the seal was tame or reclaimed before its departure, and that it intended to return, not only to the islands, but to some spot where it would be under the care and control of its owner." The British Counter Case also reviewed the laws of the seven British colonies, of Scotland, Ireland, and ten other countries, including Russia, which had been cited in the Case of the United States in support of the claim of protection, and declared that while in some instances they extended only to waters that might properly be considered territorial, in no instance was it shown that extraterritorial jurisdiction over foreigners was asserted or exercised.' The British Counter Case concluded with a discussion of the subject of regulations. The Case of the United States was supported Printed Argument of by counsel in a written argument. In this argument Mr. Carter discussed, first, the question, "What law is to govern the decision?" The determination of the tribunal must, he said, "be grounded upon principles of right." By the "rule or principle of right" was meant "a moral rule" dictated by "that general standard of justice upon which civilized nations are agreed." "Just as, in municipal societies," said Mr. Carter, "municipal law, aside from legislative enactments, is to be found in the general standard of justice which is acknowledged by the members of each particular state so, in the larger society of nations, international law is to be found in the general standard of justice acknowledged by the members of that society." This "international standard of justice" was "but another name for international law." "Municipal and international law flow equally from the same source." All law "is but a part of the great domain of ethics. It is founded, in each case, upon the nature of man and the environment in which he is placed." The "original and universal source of all law" might, continued Mr. Carter, some

Mr. Carter; the
Nature of Law.

Some of the laws in question relate to oyster, pearl, and coral beds.

1

times be designated as the law of nature, sometimes as natural justice, sometimes as the dictates of right reason; but, however described, "the same thing is intended." The principles and rules derived from this source were properly termed law, though there was no common superior which might be appealed to for their enforcement. "The public opinion of the civilized world is a power to which all nations are forced to submit." 1

"That there is a measure of uncertainty concerning the precepts of the law of nature and, consequently, in international law, which is derived from it, is," said Mr. Carter, "indeed true." But this uncertainty was, he declared, found "in all the moral sciences." It was exhibited in municipal law, though not to so large an extent as in international law. "The loftiest precepts of justice taught by the most elevated and refined intelligence of the age may not be acquiesced in or appreciated by the majority of men." Thus the actual rules of municipal law "often fall short of the highest standard of natural justice," and "erroneous descriptions in municipal tribunals are of frequent occurrence." Such decisions must "necessarily be accepted as declarative of the rule of justice. They represent the national standard of justice accepted and adopted in the states where they are pronounced." "So, also, in international law, the actual practice of nations does not always conform to the elevated precepts of the law of nature. In such cases, however, the actual practice must be accepted as the rule," since it exhibits what may be called the international standard of justice, on which the nations of the world are agreed. "But, although the actual practice and usages of nations are the best evidence of what is agreed upon as the law of nations, it is not the only evidence. These prove what nations have in fact agreed to as binding law. But in the absence of evidence to the contrary, nations are to be presumed to agree upon what natural and universal justice dictates." It is thus, continued Mr. Carter, that international as well as municipal law is developed; and if a case arises for which the usages and practice of nations furnish no precedent, it is not

On the various propositions above quoted Mr. Carter cited Mackintosh's Dissertation on the Law of Nature and of Nations; Bacon's De Argumentis Scientiarum; Cicero, De Republica, Lib. III. Cap. XXII. sec. 33; Blackstone, Comm. Book I. *41; Cicero, De Legibus, Lib. I. Cap. VI. sec. 6; Just. Inst., I. 1,3; Phillimore, Int. Law. 3 ed. 1879, vol. 1. Sec. LX.; Story, Conflict of Laws, Ch. II. sec. 35; La Jeune Eugénie, 2 Mason's Rep. 449.

to be inferred that no rule exists. A rule is then to be drawn from the dictates of natural justice, to which nations are presumed to yield their consent.

Assuming that the foregoing observations were well founded, Mr. Carter maintained that the tribunal, in making its decision, should look, first, to "the actual practice and usages of nations," as found in their relations, their treaties, and their diplomatic correspondence; and, second, to the judgments of courts which profess to administer the law of nations, such as prize courts, and in some instances courts of admiralty. If these sources failed to furnish a rule, the tribunal should look, third, "to the great source from which all law flows, the dictates of right reason, natural justice; in other words, the law of nature." And in ascertaining the law of nature on any particular question, the tribunal should look, fourth, to "the municipal law of states, so far as it speaks with a concurring voice," as "a prime fountain of knowledge;" and, fifth, in all cases, with respect, to "the concurring authority of jurists of established reputation who have made the law of nature and nations a study."1

In support of his argument Mr. Carter cited, in addition to the authorities already referred to, the following: Sixty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 197; Pomeroy, Lectures on Int. Law, ed. 1886, Ch. I. secs. 29, 30, 31, 33, pp. 23-26; Phillimore, Int. Law, 1871, Ch. III. 14-28; Maine, Int. Law, 13-47; Wheaton, Int. Law, part 1, ch. 1, secs. 4, 14; Kent, Comm. part 1, lect. 1, pp. 2-4; Halleck, Int. Law, Ch. II. sec. 13, p. 50, and sec. 18, p. 54; Woolsey, Int. Law, ed. 1894, sec. 15, p. 14; Wolff, quoted by Vattel, preface to 7th Am. ed. p. ix.; Hautefeuille, Des Droits et des Devoirs des Nations Neutres en temps de Guerre Maritime, 1848, vol. 1, pp. 12, 46; Bentham, False Manner of Reasoning in Matters of Legislation; Pufendorf, Le Droit de la Nature et des Gens, by Barbeyrac, 5th ed. vol. 1, book 2, ch. 3, sec. 23, p. 243, et seq.; Ortolan, International Rules and Diplomacy of the Sea, Paris, 1864, vol. 1, book 1, Ch. IV. 71; Heineccius, A Methodical System of Universal Law, by Turnbull, 1763, Secs. XII., XXI., XXII. ; Vattel, 7th Am. ed. preface, pp. v. vi. xiii. lvi. sec. 5, p. lvi. sec. 6; Martens, Law of Nations, by Cobbett, 4th ed. 1829, introduction, 2; Ferguson, Manual of International Law, 1884, Vol. I. Part I. Ch. III. sec. 21, p. 66; Testa, Le Droit Public Int. Maritime, by Boutiron, 1886, part 1, ch. 1; Burlamaqui, The Principles of Natural and Politic Law, by Nugent, 1823, Part II. Ch. VI. 135, 136; F. de Martens, Int. Law, Paris, 1883, vol. 1, pp. 19, 20; Li. R. P. Tuparelli d'Azeglio, de la Compagnie de Jésus, Traduit de l'Italien, 2d ed., II. ch. 2; Grotius de Jure Belli ac Pacis, Proleg.; Heffter, Int. Law of Europe, 2; Bluntschli, Le Droit Int. Codifié, pp. 1, 2; P. Fiore, book 1, ch. 1; Ahrens, Course of Natural Law, Vol. II. Book III. ch. 1; Massé, Commercial Law, Paris, 1874, book 1, Lib. II. ch. 1, p. 33; Renault, Introduction à l'Étude du Droit Int., Paris, 1879, 13, 14.

diction and of Property.

Mr. Carter next considered the subject of Questions of Juris- "the acquisition by Russia of jurisdictional or other rights over Behring Sea and the transfer thereof to the United States." Referring to the first four questions submitted to the tribunal of arbitration, Mr. Carter said that, in the discussions of the authority which nations might exercise on the high seas, two subjects, essentially distinct, had been confounded. One was the sovereign right of making laws operative on the high seas and binding upon foreigners and citizens alike, which must be limited by some definite boundary line, and the other was "the protection afforded by a nation to its property and other rights by reasonable and necessary acts of power against the citizens of other nations whenever it may be necessary on the high seas without regard to any boundary line." The term "jurisdiction" had been indifferently employed to denote both things, and it had thus become a word of ambiguous import Indeed, the two subjects might appear to have been to some extent confounded, or blended, in the minds of the negotiators of the treaty, which required the tribunal to determine, on the one hand, what "exclusive jurisdiction" in Behring Sea Russia had asserted and exercised, which might not unreasonably be understood as referring to sovereign legislative power, and, on the other hand, what exclusive right in the "seal fisheries" in Behring Sea Russia had asserted and exercised-"a totally different question, although a decision of it, affirming the exclusive right, might carry with it, as a consequence, the right to protect such fisheries by a reasonable exercise of national power anywhere upon the seas where such exercise might be necessary." It was to this second question that the real controversy related, "and the first was intended to be included only so far as it might have a bearing upon the second." An effort had, continued Mr. Carter, been made in the British Case to make it appear that the United States had shifted their ground, first by maintaining that Behring Sea was mare clausum, next by claiming an exclusive jurisdiction of one hundred miles around the Pribilof Islands, and lastly, by abandoning both those positions and asserting a property interest in the seals. But he contended that the "first attitude" of the gov ernment in relation to the matter, when it sought the cooperation of other powers in the protection of the fur seal, in order to avoid the exercise of the exceptional marine jurisdiction

which the peculiar nature of the property might justify, was "the suggestion of a property interest." Mr. Blaine also "improved the first occasion upon which he was called upon to refer to the subject to place the claims of the United States distinctly on the ground of a property interest, which could not be interfered with by other nations upon the high seas by practices which in themselves were essentially immoral and contrary to the law of nature." While Mr. Blaine had, in his own opinion, established his contention that Russia's claim in 1821, of exceptional authority over the seas, was never abandoned by her, but was acquiesced in by Great Britain, as to the coast north of the sixtieth parallel of north latitude, yet counsel preferred, said Mr. Carter, to submit to the tribu nal "that Russia had for nearly a century before the cession of Alaska established and maintained a valuable industry upon the Pribilof Islands, founded upon a clear and indispu table property interest in the fur seals;" that the United States had since the cession "carefully maintained and cherished that industry," and that the destruction of it might be prevented "by the reasonable exercise of necessary force on the high seas."

The third division of the argument of the Questions of Prop- United States related to "the property of the erty and Protection. United States in the Alaskan seal herd and their right to protect their sealing interests and industry." The first branch of this subject-the "property of the United States in the Alaskan seal herd"—was treated by Mr. Carter, who began by distinguishing between the question of a property interest in the seals themselves and the question of a property interest in the industry long established on the Pribilof Islands of maintaining and propagating the seal herd, and appropriating the increase for the purposes of commerce and profit. If it were determined, said Mr. Carter, that the United States had the property interest which they asserted only in the industry established on the shore, it might, with some show of reason, be insisted that if the industry were not actually established they would have no right to forbid interference with the seals in the open sea; but if it were determined that the United States had the property interest which they asserted in the seals themselves it would follow that they would have the right at any time to take measures to establish such an industry, and to forbid any interference with the seals