ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 119 



Now a word upon one more of these instances of j)rotectioii of marine 

 proi)erty, wbicli is tUe last in the somewhat long list with wliich I 

 wearietl you yesterday, and which is attbrded to whales by Norway in 

 the fiords of that country — those broad arms of the sea that run up into 

 the country. A whale, in the classilicatiou of Natural History, not 

 strictly a fish, is to all intents and purposes a tish. Its home is in the 

 open sea. It breeds there — it is attached to no shore; nevertheless, in 

 Norway, it appears that these animals find their way up to the fiords 

 where they become the basis of an important husbandry, industry, and 

 means of subsistence. 



Now surely it would be impossible to name in the way of illustration, 

 any animal that would be further away from the lines upon which 

 these rules of law proceed, than the whale. It may be well said that 

 the whale is with the mackerel, the salmon and the cod; he belongs in 

 the sea always; he is appurtenant to no territory; he has no animus 

 revertendi; he is brought under no confinement or restriction; there is 

 no time that you can put your hand upon him except as you can put 

 your hand upon any fish in the sea; and yet in the statement that Mr. 

 Gram was kind enough to furnish the Tribunal with, the ground taken 

 by Norway is pointed out. Even that animal, uiuler those circum- 

 stances, is brought into the category of those to which we claim the 

 seals belong; and perhaps as it is stated so much more clearly than I 

 can state it, as well as being so much better authority than any view of 

 mine can be, I may be excused for reading a few words of this statement, 

 and that will be all I have to say upon this point. 



The peculiarity of the Norwegian law quoted by Counsel for the Uuited States, 

 consists in its providing for a close season for the whaling. As to its stipulations 

 about inner and territorial waters, such stipulations arc simply applications to a 

 special case of the general principles laid down in the Norwegian legislation con- 

 cerning the gulfs and the waters washing the coasts. A glance on the map will be 

 sufficient to show the great number of gulfs or iiords, and their importance for the 

 inhabitants of Norway. Some of these fiords have a considerable development, 

 stretching themselves far into the country and l>eiug 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 ves.sel 

 of their nationality had been prevented from fishing in one of the largest fiords of 

 Norway, in tlie northern part oT the country. The fishing carried on in that neigh- 

 bourhood during the first four months of every year, is of extraordinary im^jortance 

 to the country, some 30,000 people gathering there from South and North, in order to 

 earn their living. A Government inspection controls tlie 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, — 



(not to destroj^ the fishing for ever — ) 



was an unheard of occurrence, and in the ensuing diplomatic correspondence the 

 exclusive right of Norwegian subjects to this industry was energelically 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 ])re- 

 sented by the Norwegian and Swedish members in the sittings in the Institiit de Droit 

 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 

 1877 (Martens. Nourcau recueil general, 11" sdrie volume IX), containing the reasons 

 why Sweden and Norway have not adhered to the Treaty of Hague. 



