if the seals are there, and the further advantage that when once the seal is struck by the spear it is fastened and can be secured as readily as the whale is secured by the harpoon.

A year or two, however, ought to enable the governments of the two countries to decide whether the regulations will be effective, and I reiterate the statement that no regulation or set of regulations will be effective to protect the seals which permits profitable pelagic sealing.. The men who have so far carried on the business of pelagic sealing are not of a class that seek or expect any very large profits. The vessels employed will be old and nearly useless for any other purpose. The hunters and canoe men are mainly Indians. The outfits are not expensive and the crews will undoubtedly be shipped on a lay or share in the catch and a comparatively few seal skins at the present prices will pay expenses and all engaged will be content if they make enough in the spring and fall seasons to support them during the rest of the year.

These are mere speculations as to the effect of the regulations on seal life. I may be wrong in my suggestions, but of this I am sure that if these regulations do not stop pelagic sealing they will fail to save the fur seals from speedy annihilation.

While on the islands they are entirely in the control of man. He can select and kill as many as good husbandry and a proper regard for the good of the herd will allow. He can also select, and mark if necessary, the young males who are to be allowed to mature and take their places as breeders. He can do more, for he can, by study of the characteristics and types of the animal, improve the type, or breed, and develop them for the uses for which they are wanted, as cattle and horses have been improved and developed by intelligent breeding. And the herd can be so managed if killed only on the islands that its existence can not only be perpetuated but it can be increased to the full capacity of the islands, as rookeries, and the sea to supply them with food.

The arbitration and decision will undoubtedly attract the attention of publicists and law writers throughout the civilized world and extensive and learned comment made upon the positions contended for on both sides, and the world's range of thought and study be enlarged by the discussions before the Tribunal of Arbitration of 1893 and the decisions of that Tribunal.

By an order of the Tribunal the arbitrators were given time to file written opinions on the questions submitted to them and Jus

tice Harlan and Senator Morgan each filed able and exhaustive opinions in the case, but I am not advised whether any of the other members did so or not. The opinions filed by these learned gentlemen support the main points in behalf of the United States and doubtless will receive due attention from writers on international law.

I cannot conclude this paper without saying that the French government bestowed upon the Tribunal and all connected with it, the heartiest kindness and hospitality and did all in its power to make the stay of the strangers in its wonderful capital city pleasant and agreeable, and I feel sure the kindness was fully appreciated.

The discussions before the Tribunal were characterized by the most courteous and gentlemanly bearing on the part of the counsel toward the members of the Tribunal and each other, but on each side there was vigorous and tenacious insistence for the positions respectively contended for.

H. W. BLODGETT,

One of the Counsel for United States.

CONTRIBUTORY AND COMPARATIVE NEGLIGENCE IN ILLINOIS.

The so called "comparative negligence" rule was adopted by the supreme court of Illinois in G. & C. U. Ry. Co. v. Jacobs, 20 Ill. 478. This was never intended by the judges to take the place of the old and generally settled rule as to contributory negligence. But in later cases it was regarded as a new rule and the efforts to follow the letter and at the same time avoid some of the anomalous consequences logically resulting therefrom have led to very great confusion. This rule has been a very unsatisfactory one and the courts have so construed the language used in the "Jacobs" case that for several years it has been of little practical importance. The supreme court said in a decision rendered last May, N. C. St. Ry. Co. v. Eldridge, 38 N.. E. R. 246, "The proposition embodied in the fifth instruction doubtless finds support in some of the earlier decisions of this court, involving what was known as the doctrine of comparative negligence, but by more recent decisions that doctrine has been greatly modified, if not wholly repudiated. The rule to which the court is now committed by repeated decisions is that a plaintiff, before he can recover on the ground of mere negligence, must show that the injury of which he complains was caused by the negligence of the defendant, and that he himself at the time was in the exercise of ordinary care." The court squarely rejects a rule that has become a dead letter. The able counsel in this case, John F. Waters, has rendered a very great service by securing from the court the positive expression quoted above. The court lays down as the present Illinois law a rule entirely in harmony with the general law of negligence.

I wish now briefly to trace the decisions of the supreme court and see whether the court was justified in using such strong language. Is the doctrine of comparative negligence "greatly modified if not wholly repudiated?”

The doctrine of the "Jacobs" case was that "the degrees of negligence must be measured and considered, and whenever it shall appear that the plaintiff's negligence is comparatively slight,

and that of the defendant gross, he shall not be deprived of his action."

No previous decision was assumed to be overruled and no new doctrine was claimed to be announced. Mr. Justice Breese, who wrote the opinion in the "Jacobs case, says in a later case, C. B. & Q. R'y Co. v. Hazzard, 26 In., at 386, "We endeavored in the case of G. & C. U. R'y Co v. Jacobs, by a review of all the American and English cases relating to negligence, to lay down some rules by which it is to be adjudged. Among others we there said, to maintain an action for negligence, there must not only be fault on the part of the defendant, but ordinary care on the part of the plaintiff must be shown." The opinion in Chicago and Alton R. R. Co. v. Gretzner, 46 Ill., 75, also written by Mr. Justice Breese, makes it even more clear that the "Jacobs" case did not reject the old rule or relieve the plaintiff from the necessity of showing ordinary care on his part. At page 83 it is said: "These cases ('Jacobs' case and others) establish the doctrine of comparative negligence, and hold there must be fault on the part of the defendant, and no want of ordinary care on the part of the plaintiff, and where there are faults on both sides, the plaintiff may in some cases recover, as where it appears that his negligence is slight, and that of the defendant gross; and this rule holds, even when the sght negligence of the plaintiff, in some degree, contributed to the injury." A long list of cases in support of the proposition that ordinary care is still necessary may be found in Calumet Iron & Steel Co. v. Martin, 115 Ill., at 368.

But notwithstanding the fact that the judges intended no innovation the "Jacobs" case greatly influenced later decisions, and the attempt to follow the supposed new rule has filled the Illinois reports with a great mass of confused law. on the subject of negligence. The case of C., B. & Q. Ry. Co. v. Johnson, Admr., 103 Ill. 512, however, made a construction of the comparative negligence rule, which has been followed in later cases and has so limited the application of the rule that it is practically of no force at present. The court say: "In holding the plaintiff may recover in an action for negligence, notwithstanding he has been guilty of contributory negligence, where his negligence is but slight and that of the defendant gross in comparison with each other, it must of course be understood that the terms "slight negligence" and "gross negligence" are used in their legal sense, as defined by com

mon law judges and text writers, for otherwise the terms would convey no idea of a definite legal rule." The great significance of this ruling will be shown below. Whether this is a forced construction or not is a matter of opinion, upon which students of the law may differ. It is, however, a construction now beyond dispute and has resulted in leaving no room for the operation of the rule by way of benefit to plaintiffs.

How this result follows will be clear if we consider the legal sense of the terms "slight negligence" and "gross negligence." Slight negligence is the failure to exercise the greatest possible care. Gross negligence is the failure to exercise even very little care. Slight negligence is not incompatible with the exercise of ordinary care, which is defined to be "such reasonable precaution as a prudent man always adopts for his personal safety." And one who is in the exercise of ordinary care stands in as good a position before the law as that in which the comparative negligence rule would put him. If he is not in the exercise of ordinary care he is barred of his recovery in all events. for, as we have shown above, the doctrine of comparative negligence does not abate that requirement of the general law. C. B. & Q. v. Lee, Admx., 68 Ill., at 586, and cases cited in Calumet Iron and Steel Co.

v. Martin, supra. The court in that case say: "It inevitably

follows, from the rulings in the numerous cases to which we have referred, that the court has not understood that the rule of comparative negligence changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety, and authorizing him to recover for such injuries where he has observed such care.”

The above authorities seem to establish that the comparative negligence rule is of no effect at present in Illinois and fully justifies the court in using the words quoted at the beginning of this discussion. Illinois can no longer be regarded as favoring an exception to the contributory negligence rule.

ALBERT B. DAVIDSON.