The President. But there was an arrangement between the Governments precisely the arrangement which was signed afterwards, on the 18th of December, 1891. There was an arrangement made in June, 1891, if I remember, which you read us a few days ago, an arrangement in seven articles, providing for the joint commission to be sent out. That was not signed but it was an arrangement between the Governments. It was not signed or ratified, since it had not been submitted to the American Senate.

Senator Morgan. The President does not seem to apprehend exactly that no arrangement made between the diplomatic functionaries of the United States and any other Government of the character mentioned here, has any effect whatsoever upon the laws of the United States until it has been ratified by the Senate; and the ratification took place not only after the arrangement was made, but after the report was made.

The President. The 7th of May, 1892..

Mr. Justice Harlan. The separate report of the British Commissioners was made June 1st, 1892, and the exchange of ratification occurred May 7th, 1892.

Senator Morgan. I refer to the joint report, after which, as I understand it, the Commission, as a Commission, was dissolved. And each of the Commissioners went on, whether rightfully or wrongfully, I am not prepared to say, to make subsequent thereto, their separate reports to their respective Govern

ments.

The President. That is perfectly correct.

Mr. Carter. The statement by the learned Arbitrator is entirely correct.

Senator Morgan. The Commission finally adjourned on the 4th of March. The ratification of the treaty was had on April 22d.

Mr. Justice Harlan. The ratification?

Senator Morgan. The ratification by the Senate.

Mr. Foster. It was proclaimed May 9th.

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Mr. Carter (reading). (reading). Concluded at Washington, February 29th, 1892; ratification advised by the Senate, March 29th 1892; ratified by the President, April 22d, 1892; ratifications exchanged, May 7th, 1892; proclaimed, May 9th, 1892 ". That is on the first page of volume I of the Appendix.

Senator Morgan. It was proclaimed by the United States as an amended treaty, putting the treaty as originally ratified by the Senate and the modus vivendi which came in as a supplementary treaty or an amendment of a former treaty together, and constituting one instrument to be construed in pari materia.

The President. That had no legal force, I suppose, before it was proclaimed in the United States.

Mr. Carter. None at all. It could not have had, either in Great Britain or the United States.

Mr. Phelps. There were also other amendments added by the Senate.

Senator Morgan. There were two amendments of a distinct character, each to a subject not entirely foreign to, but independent of, the modus vivendi.

Mr. Carter. In the view I had taken of it, the circumstances under which this Commission was appointed and proceeded to its labors prior to the ratification of the Treaty, is not of material importance.

Senator Morgan. May be not.

Mr. Carter. In the view I take of it, it may, or may not, be that that action was illegal. Whatever the truth is, however, this must be true that the diplomatic representatives of the Governments had come to a formal agreement that this should be done. They had come to an agreement also in writing that this should be done, although that writing was not in a form making it a treaty. That is plain enough. It was highly important that all of this preliminary work should be done as soon as possible. It was necessary in order to carry out the scheme contemplated by the treaty. It was all done by the parties in good faith, and I should hope that it would be allowed to be considered as having effect according to the intent of the parties. I should, indeed, myself be inclined to argue that the ratifications having been exchanged between the Governments with full knowledge that these proceeings had already been had beforehand, and that it was the design of the pending treaty that they should be had, that the ratifications of the treaty would have an effect, as we lawyers say, by relation, and go back and make good these prior proceedings which otherwise might have been invalid.

Senator Morgan. If the learned counsel will allow me, that is precisely the view I take of the matter, that the subsequent ratification of these treaties, whether there are two or whether there is one, relating to the action of the Commissioners authorized by that diplomatic correspondence, is an adoption of what those Commissioners had done; but that operates upon what they had done, as I conceive, and it did not operate to give them any authority in futuro.

Mr. Carter. Oh no; I should suppose not. But the view which is suggested by the learned Arbitrator is entirely in accordance with my own.

I now pass to the next matter which, as it seems to me,

in the order I have prescribed, it is proper for me to consider. This also is a question, somewhat preliminary to the argument of the main questions in controversy, but upon which it seems to me important that I should address a few observations to the Tribunal; and that question is as to the law which is to govern it in its deliberations.

This is a Tribunal composed of the citizens of different nations, part belonging to the nations between whom the controversy subsists, and part coming from other nations. They are sitting under no municipal law whatever. The authority of the courts of Great Britain, the authority of the courts of the United States, as authority, are as nothing here. This is an international Tribunal. Then, too, there is no international legislature which has adopted any law in relation to these or any other subjects which can be administered or applied. Therefore, in a certain sense, and in the sense in which we speak of law when we are engaged in a controversy before municipal tribunals, there is no law at all. Yet we cannot suppose that questions of this sort are to be discussed, debated, and determined by this Tribunal, without its being bound by some rule or some system of law. What then is the law which is to govern us? I suppose I might appeal with entire confidence to the conscience and the immediate conviction of each one of the members of this Tribunal, that the decision of the controversy is to be governed by some rule of right. What that particular rule may be, where it is to be sought, is another question; but the decision is to be governed by some rule of right. I heard with infinite pleasure my learned friend, Sir Charles Russell, upon one occasion when he was addressing you, say that the first five questions mentioned in the treaty were what he might properly enough call, he thought, questions of right, and that they were questions of right which must be decided by the members of this Tribunal as jurists. I concur in that view of those questions thus taken by him and anticipate, indeed, that it will never be receded from by him. How else could it be? This is called an arbitration; but very plainly it is not an arbitration of that character which very frequently takes place between man and man. Oftentimes in controversies between individuals it is of far higher importance that the particular controversy should be in some manner settled and the parties left at peace, than how it shall be settled; and therefore in such cases the decision is often reached by some reciprocal process of concession, giving a little on one side and conceding a little on the other, and so on, until finally an agreement is reached without a resort to any particular principle. That is not the way to deal with this controversy. It is of a totally different character. If it could have been disposed of by mutual

compromise and concession it would never have been brought before this Arbitration. The parties themselves could have settled it. They are quite competent to say how much they will be willing to yield, in order, by mutual compromise and concession, to finally reach a point upon which they are willing to agree. But the difficulty in this case is that the parties were in difference in respect to their rights, and they could never come to an agreement upon them. They differed as to the question of the powers a nation may exercise upon the high seas in defence of its admitted rights of property in time of peace. They differed on the question whether the United States has a property interest in these seals, and in the industry which has been carried on in respect to them on the Pribilof Islands. Those differences they have never been able to reconcile. At variance with each other in respect to them at the start, subsequent discussion between the two parties has had the effect only of more widely separating them; and it is that controversy upon those questions of right which they have committed to your decision.

It is a question, too, necessarily of right. Why should they have called together a tribunal constituted of eminent jurists from several distinct nations unless they intended that the rules of right should be applied to it. Why should they have made a provision for counsel supposed to be learned in the law, and learned in the fundamental principles upon which the law is founded, unless they supposed it was necessary to bring to the tribunal considerations of right in order to enable them to make a decision. Indeed, how could counsel address this Tribunal unless it was supposed that there was a standard of right, acknowledged both by the Tribunal and the counsel who address it, to which they could appeal and upon which they could endeavor to persuade the Tribunal. It is therefore very clear, as it seems to me, that the decision of this Tribunal is to be governed by some rule such as we understand to be a rule of right. Any other rule, I assume, would not be satisfactory to either party. It certainly would not be satisfactory to the United States. I think I may safely say that, however valuable this seal herd may be to the Government and to the people of the United States, a decision affirming their full and exclusive right to it made by this Tribunal, unless it were made upon grounds of right, would not be acceptable. It is of far greater importance to the United States, as it must be to every nation, that the decision of any controversies to which it may be a party should be determined upon principles of right, than it is to gain any mere temporary advantage not based upon such principles.

There is another consideration: The principles which are involved in the controversy affect the most permanent, enduring,

and wide-spread interests. Certainly nothing can be more important than a determination of the question of the power which one nation may exercise against the citizens and the property of another nation upon the high seas in time of peace. This is a question - some aspects of it well enough settled, but other aspects of it quite novel- requiring additional exploration, additional elucidation, and additional determination. It is a question of the gravest and most important character; upon which differences of opinion may arise likely to embroil nations in hostilities and to break up the peace of the world. Then, again, that other question, the circumstances under which a nation may assert a right of property in animals that resort to the seas for a greater or less time during the year, and therefore an animal which at different times may place itself under the power of citizens belonging to different nations of the earth; what question of greater importance can there be than that which involves the principles upon which such conflicting claims may be resolved the fundamental principles upon which the institution of property stands?

These are questions, the permanent importance of which far outweighs the particular interests of the contending parties to this controversy; and I must therefore express the hope that they will be settled as my learned friend says they ought to be settled, by this Tribunal, looking to them as jurists, and feeling the responsibilities of jurists, The judgment awaited from this Tribunal will be, or ought to be, a monument, or rather an oracle, to which present and future times may appeal as furnishing indisputable evidence of the law of the world,

Therefore, I think myself justified on this occasion in appealing to each member of this Tribunal - I think it is not unbecoming in me to make that appeal to discharge and dismiss from his breast every sentiment of partiality, and even of patriotism, and to look upon this question as if he were a citizen, not of this country, or of that country, but a citizen of the world, having in charge, and having only in charge, the general interests of mankind. The promptings of patriotism, everywhere else to be heeded, should be silenced here, and nothing should be obeyed except the voice, the supreme voice, of justice and the law.

But while it is to be a rule of right that is to govern the determination of this Tribunal, what is that rule of right, and where is it to be found? In saying that it is to be a rule of right, it is assumed -it is indeed declared that is must be a moral rule; that is to say, it must be a rule adopted by the moral sense; for there are no rules of right except moral rules. Right and wrong have to do with morality and with morality alone. The law, whether it be international law, or municipal law, is but a part of the general