THE TRIBUNAL HAVING UNDER CONSIDERATION THE MOTION OF 

 MR. JUSTICE HARLAN, SET FORTH IN THIS TAPER, SENATOR 

 MORGAN SUBMITTED THE FOLLOWING STATEMENTS AND REMARKS. 



From the time when the controversy, which is the subject of this arbi- 

 tration, assumed the form of treaty engagements between the United 

 States and Great Britain, it became a matter that invoked the sovereign 

 powers of both Governments, and the rights of the United States and 

 of the subjects of Great Britain were merged in those of each sovereign, 

 as they are fixed by that treaty. 



Each Government, in its own way, and according to its own will, 

 witLout legal responsibility to its citizens or subjects, undertook to 

 control the entire subject in its capacity as a sovereign. These powers 

 were exerted in their broadest form in the modus mvendi of 1891, 

 which was fully executed, and in that of 1892, which is made a part of 

 the Treaty of February 29, 1892. In the creation of this Tribunal of 

 Arbitration, and in the definition and limitation of its powers, this 

 arrangement was continued in force. It results from this attitude of 

 the two Governments toward the fur-seals referred to in the treaty 

 that any dealing with them on the high seas by any person lawfully 

 bearing the flag of either Government is an act for which that Govern- 

 ment must be responsible to the other Government if any question 

 of resiionsibility arises. 



It was (piite as competent for the two Governments to prohibit the 

 taking of fur-seals as far to the south as the equator as it was to pro- 

 hibit it in Bering Sea, so far as their citizens or subjects are concerned ; 

 and it was as competent for them to make the prohibition perpetual 

 as it was to confine it to two or more fishing seasons. The two Gov- 

 ernments forebore to prohibit pelagic sealing in the North Pacific 

 Ocean pending this arbitration, in the evident hope and belief that the 

 award in this case would be made in time to prevent any seriously 

 mischievous effects of that pursuit, by a decision that would settle the 



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