Persons appointed by the Secretary of State: 1825. Ghristopher Hughes, to treat with Denmark. Persons appointed by the President: JOHN T. MORGAN, No. 242.-1892-3: Extracts from proceedings of Behring Sea Arbitration between the United Kingdom and the United States relative to the taking of Seals by British Fishermen. Mr. H. E. M. Gram, the arbitrator designated by Sweden and Norway, read the following statement: The Appendix Vol. 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 feature 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 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 neighbourhood 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 mile 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 485 one geographical mile, or one fifteenth part of a degree of latitude, or four marine miles, no narrower limits 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 International in 1891 and 1892. I wish also to refer, concerning the subject which I have now briefly treated, to the proceedings of the conference of Hague, in 1882 (Martens. Nouveau recueil général, II série, Vol. IX), containing the reasons why Sweden and Norway have not adhered to the treaty of Hague. [Extract from the Appendix to the United States' case referred to above by Mr. Gram.] LAW OF NORWAY OF JUNE 19, 1880, RELATING TO THE PROTECTION OF WHALES. [Translation.] SEC. 1. It shall be prohibited on that part of the sea on the coast of Finmarken which the King will define to kill or chase whales during the period extending from the 1st of January till the end of May; but whales which have been wounded outside of the limits of protection may be killed or be utilized within these limits. SEC. 2. Any one violating the provisions of Section 1 or becoming party to such violation will be punished by a fine of from 4,000 to 8,000 kroner for each whale which is chased or killed. Of a ship's crew, however, none but the captain shall be punished, if the law has been violated either by his order or with his knowledge and if he has not done everything in his power to prevent such violation. The provisions of the last clause of section 40 of chapter 2 of the Criminal Law of June 3rd, 1874, shall not apply." SEC. 3. Cases arising from violations of the present law are treated before the police courts. For fines to which the captain or the owner of a vessel has become liable the vessel is held as a pledge. SEC. 4. The present law shall not prevent any one from taking possession of a whale which has been driven ashore or which is found floating in the sea in a wounded condition. See Law of May 18, 1876, Sec. 2, relating to the protection of seals in the Polar Sea. SEC. 5. This law shall go into operation on the 1st of January of next year and shall remain in force for five years. PROCLAMATION CONTAINING THE REGULATIONS RELATIVE TO THE PROTECTION OF WHALES ON THE COAST OF FINMARKEN, JANUARY 5, 1881. Referring to the law of June 19th, 1880, relative to the protection of whales on the coast of Finmarken, it is hereby ordered: In the sea coast of Finmarken, at a distance not exceeding one geographical mile from the coast, counted from the outermost islands or rocks which are never covered by the sea, it shall, until further notice, be prohibited to kill or chase whales during the period from the 1st of January till the end of May. As regards the Varangerfjord, the limit for the protected tract and towards the sea shall be a straight line drawn from Kibergnos to the boundary, the Jakobselv, but it shall also be prohibited outside of this line, during the season of protection mentioned above, to kill cr chase whales at a distance of less than one geographical mile from Kibbergnos." [Extract from the Case of the United States.] Game and Fishery laws are usually limited in their effects to the land and territorial waters of the country which enacts them. But instances are many wherein nations have not hesitated to extend the effects of their laws to the waters contiguous to their shores, beyond the ordinary three-mile limit. Citations have already been made of the laws for the protection of seals of quite a number of nations, which, so far as their own subjects are concerned, apply to large areas of the high seas, and it has been shown that Great Britain and Russia extend their exclusive juridiction for the protection of seals, frequenting waters contiguous to their shores, far beyond the marine league. But further instances may be cited where nations have exercised extraterritorial jurisdiction on the ocean for the protection of other species of marine life besides the seal. In fact, it may be laid down as a principle, established by international usage, that any nation which has a peculiar interest in the continued existence of any valuable marine product, located in the high seas adjacent to its coasts or territorial waters, may adopt such measures as are essential to the preservation of the species, without limitation as to the distance from land at which such necessary measures may be enforced. This principle is well illustrated by two recent Statutes enacted by the Parliament of Great Britain. By the British "Sea Fisheries Act" of 1868 provision is made for the regulation of oyster dredging on any oyster bed within twenty miles of a straight line drawn 486 from the Eastern end of Lamby Island to Carnsore Point on the Eastern coast of Ireland. The law states in terms that it is to be enforced "outside of the exclusive Fishery limits of the British isles," and that every order issued in pursuance of it shall be binding not only on British sea-fishing boats, but also " on any other sea-fishing boats in that behalf specified in the order and on the crews 66 See Decrees of February 22, 1812, and October 16, 1869. of such boats." In other words, jurisdiction may be asserted over foreigners as well as British subjects at a distance of twenty miles from land. The Scotch herring Fishery Act of 1889 furnishes another illustration in point. That Act provides that certain destructive methods of fishing may be prohibited by the Fishery Board in any part of an area of the open sea, two thousand seven hundred square miles in extent, lying off the North east coast of Scotland, within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire." The Act is not confined in its operations to British subjects, but provides that " any person" offending against its provisions shall be liable to a fine and the forfeiture of his fishing apparatus. The legislation of several of the colonies of Great Britain also abounds in instances of the exercise of extraterritorial jurisdiction upon the high seas for the protection of different species of marine life. The pearl fisheries of Ceylon extend into the open sea for a distance of twenty miles, and they have been the subject of a series of ordinances and regulations from 1811 down to the present time, which for certain purposes define the limit of marine jurisdiction to be twelve miles, and for other purposes a distance which varies from six to twenty miles. The right of self-defence by a nation upon the sea, and the right of municipal jurisdiction over a limited part of the sea adjacent to the coast, are not to be confounded, for the two are totally distinct. The littoral jurisdiction, indeed, is only a branch of the general right of self-defence, accorded by usage and common consent: first, because it is always necessary for self-protection, and next, because it is usually sufficient for it. Upon no other ground was it ever attempted to be sustained. That jurisdiction must be limited by an ascertained or ascertainable line, is its necessary condition. That the right of self-defence is subject to no territorial line, is equally plain. All rights of self-defence are the result of necessity. They are coextensive with the necessity that gives rise to them, and can be restricted by no other boundary. As remarked by Chief Justice Marshall, "all that is necessary to this object is lawful, all that transcends it is unlawful." 66 Precisely what is the limit of jurisdiction upon the littoral sea, and precisely what are the nature and extent of the jurisdiction that can be asserted within it, whether it is absolute or qualified, territorial or extraterritorial, are questions that have been a subject of grave difference of opinion among jurists. Nor have they ever been entirely settled. They will be found to be discussed with a fullness of learning, a depth of research, and a masterly power of reasoning, to which nothing can be added, in the opinions of the English judges in the important and leading case of the Queen v. Kehn (2 Law Rep. Exch. Div., 1876–77, pp. 63 to 239). These learned and eminent judges were not fortunate enough to agree upon all the questions involved, and every view that can be taken of them, and every consideration that is pertinent, are exhaustively presented in their opinions. Upon these vexed questions it is not at all necessary to enter in the present case, for they have little to do with it. Whether the conclusions of one or the other of these conflicting opinions are to be accepted, is immaterial here. All authorities agree that the sole reason upon which a certain right of jurisdiction upon the sea, and within a limit that is variously stated, has been conceded to Maritime nations, is found in the necessities of self-defence. This part of the Dominion over the sea, whether it be greater or less, has never been surrendered. It is a remnant of the former more extended dominion, retained for the same reason for which that was asserted. Lord Chief Justice Cockburn, in his opinion in the case just cited, reviews the history of this subject, quoting the language of every previous writer of repute, and referring to every judicial decision respecting it which then existed. He points out very clearly the different views that have prevailed and which then prevailed as to the nature of the jurisdiction, and as to the distance over which it could be extended. This limit has been variously asserted by writers of distinction and authority, at two days' sail, one hundred miles, sixty miles, the horizon line, as far as can be seen from the shore, as far as bottom can be found with the dead line, the range of a cannon shot, two leagues, one league, or so far as the Government might think necessary. On the other point, the character of the jurisdiction, it may be assumed that by the controlling opinion of the present time, and by the usage of nations, it is not regarded as so far absolute that a nation may exclude altogether from within the range of cannon shot the ships of another country, innocently navigating, and violating no reasonable regulation of the municipal law. But the power which may be exerted within that limit is only coextensive with the just requirements of the self-protection for which it exists, although undoubtedly the nation exercising the jurisdiction must be allowed, so long as it acts in good faith, to be its own judge as to the regulations proper to be prescribed, and the manner of their enforcement. This somewhat indefinite area of a greater or less jurisdiction over the marginal sea, which has thus come to be recognized and conceded, though accorded for the purposes of national self-protection, is by no means its boundary. It illustrates the right of which it is an example, but does not exhaust it. It is but one application of the principle out of many. The necessity which gave rise to it justifies likewise the larger power, and further means of defence, 487 which may from time to time be required. No nation, in whatever Statute or Treaty it may have assented to the threemile or cannon-shot limit of municipal jurisdiction, has ever agreed to surrender its right of self defence outside of that boundary, or to substitute for that right the contracted and qualified power which is only one of the results of it, and which must often prove inadequate or inapplicable. On the contrary, as will be seen hereafter, many nations have been compelled to assert, and have successfully asserted, much wider and larger powers in the defence of their manifold interests. It is under the operation of the same principle on which jurisdiction is awarded to nations over the sea within the 3-mile or cannon: shot limit, that a similar jurisdiction is allowed to be exercised not only over navigable rivers, bays, and estuaries, which may be fairly |