Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-01-04
MATTER OF REGULATION, NOT ADVICE

FutiY nethheus -.-.. -..
WASHINGTON, Jan. 1.-The opinions OF
Senator Morgan upon the questions arls'
ing in the Behring Sea arbitration were
filed with the Secretary of the Tribunal at
PARIS, Saturday last.
Speaking Of his opinions, Senator MOT
gan said they had been delivered from
time to time in the conference of the arbi-
traitors and were intended to meet the
arguments put forth by other members of
the Tribunal. In putting them into per.
manent shape, he said he had included
only so much of the original matter as
would show in the future the attitude of
the United States upon the subjects under
discussion. lie based his argument that
the prescriptive rights of the United States
and previously those of Russia, in respect
of the fur seals that habitually resort TO
Behring Sea, are to be safely based upon
the continued and unquestioned use OF
both countries us well us ON the peculiar
characteristics of these animals. Upon
this point he said;
THE Russian government exercised the
right to own and control the seals that re-
sorted to Behring Sea, and made tenn
porary grants to its subjects Of the right
to take them in those waters.
ut may be said that this was an assump-
ton Of right on the part OF Russia, not
supported by any rule of international
law. 1t was not more distinctly an as
sumption of right than was the title to the
islands, based on the discovery of them by
a Russian subject. In both cases native
sovereignty was displaced to make room
for the claims of Russia backed by SUI
perior force. The processes of apprOpra-
ton were the same in reference to the seals
aud seal fisheries US they were in reference
to the islands. viz discovery, claim, occu-
patton and development. Exclusive use
and the acquiesence of other civilized
powers were the attendant facts that estab-
lished the right OF property in both cases."
The Senator grouped the assertions by
the United States of their rights of prop
erty in the fur seal in question while they
are live and without the incident Of actual
capture as follows:
First-As right by prescription derived
from Russia, and ncqnescence in by Great
Britain and their usefulness TO the govern
mont ana the people.
SecoDd--As d right established by law within
its domain that Is not impaired by the neces-
sary and temporary absence OF the seaiB in
search Of food, either while they are inhabiting
the seal islands, or when they retreat from
them on their winter excursions into the
Pacific O. eln.
Third-As a right of property that Ia the
necessary result of habits OF the animals and
their natural and compulsory relation 10 the
Pribloh Islands.
Fourth ---As q right OF property growing out
OF necessity OF governmental control OF the
fur-sohls, 10 prevent their destruction, and the
alleged fact that such control can be efficiently
exercised only by the government whose terri
tory is occupied by them at their birth, and
while they are their property, "ratione impo-
tentia."
rifih-As a right Of property based on the
TACT with the acquescenie Of all nations, es-
tablished by the fact that no objection or pro-
test was made or adverse action was taken by
any nation for period of ~ years, an indus
try was established, depending for Its support
upon the preservation OF the stock OF fur-seals;
which Will be destroyed 1t indiscrlmlnate
pelagc hunting Is further permitted.
Referring to the right of prescription
the Senator said:
I'm the English common law. an abso-
lutte title is acquired to any property after
1t has been In the open possession of the
occupant and those holding under him for
the period Of 70 years. This is rule Of re-
pose adopted for the peace of society. In
those features it is even more useful be-
tween nations than ii is between individ-
uals. So potent is this rule that the courts
OF both countries have uniformly declared
that any grant, will, deed. or statute, will
be conclusively presumed to exist, that Is
necessary to support the title of the party
who has held uninterrupted possession for
mo just reason can be stated why this
wholesome rule founded in the public
policy of both countries, should not apply
TO the international rights in controversy
between them, and should not include
every interest in any property, industry
or privilege that has been, for the period
of prescription, in the exclusive control
and enjoyment of the claimant. The OPP
posing rights, whatever they may be, are
lost under conclusive presumption of u
superior title in the actual occupant.
IF seals are made property by the laws
of the United States, and are fonnd on the
ocean travelling in search of food the
owner has the right to be there and take
care of them. II his presence is not neces-
sary, because it Is useless for the purpose
OF protecting of them and if they are
identified as the seals that hubitually re-
sort to the Pribilof Islands by their be-
ing found in the eastern part OF the ocean
the law regards the animals as being in
the constructive possession of the owner
Upon this rule OF constructive possession
the security of all commerce and ali
personal chattels most largely depends. 1t
Is an ill.pervading element Of property.
" The United States must protect the seals
against her own people or else they will
be speedily destroyed. If in doing this all
her care and expense are turned To naught
by rule of international law, she can
only abandon the seals to their fate, let
the islands become barren of all value,
and console herself with the reflection
that her sacrifice adds power to the inter-
national law that is more authoritiye than
the judgment of all the nations of the
earth, except Canada.
1T is new and very dangerous phase
of the rights Of fishermen that they can
lawfully combine to destroy fish and use
the agencies that are necessarily destruc-
tive Of given species OF fish under the
protection OF international law. Il Is still
more dangerous if they can lawfully way
lay the fish at narrow passages between
islands and destroy them as they approach
the shores and bays of neighboring ma
ton, and yet more dangerous if they can
lawfully form Gordon of vessels. with
great numbers of men armed with shot
guns, Just outside the three mile limit, and
can kill seals that are free-breathing as
well as free-swimming animals, whenever
they rise to the surface for air and come
within range OF their guns while they are
passing TO and fro in search Of sustenance
Tor themselves and their offsprings. Yet
all these combinations and practices are
lawful, If the right of pelagic hunting Of
fur-seals is the same-no more and no less
with the right OF fishing in the high seas.
ut is not surprising, in view Of such
serious results as would follow the practice
OF pelagic scaling, and have already re.
suited from it, where it is placed on the
same footing with the right of fishing in
the open, that the power to ordain concur
rent regulations for its control, or prohibit
ton, was given to q tribunal of arbitration.
1T is only by regulations, and not bv
advice, or by the statement of the princi-
pies of law that govern the case, that these