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FORTHE PEOPLE

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NATURAL HISTORY

FUR SEAL ARBITRATION.

PROCEEDIIslGS

OF TIIp '^ .

Tribunal oTXrbitration,

CONVENED AT PARIS

UNDER THE

TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1893,

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t^f^

DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES

WATERS OF BERING SEA.

volunie: :?^iii.

k

WASHINGTON:

GOVERNMENT PRINTING OFFICE.

1895.

I ^ -19 S "J I ' Ja-n^ Z:

FUR-SEAL ARBITRATION.

ORAL ARGUMENT

OF

SlE CHARLES RUSSELL, Q. C. M. P.,

Hek BuiTANNic Majesty's Attorney-General,

O^ BEHALF OF GEEAT BEITAIK

B S, VT XIII 1

The Department of State obtained a copy of the stenographic report
of the oral arguments of British counsel before the Fur Seal Tribunal
of Arbitration, Paris, 1893, through the courtesy of the British Foreign
Oflice. The papers were handed to Mr. Bayard, Ambassador of the
United States at London, with consent to their publication in the
American edition of the proceedings of the Tribunal.

Department of State,

Washington, D. C, August, 1895.

ORAL ARGUMENT OF SIR CHARLES RUSSELL.

TWENTIETH DAY, MAY lo™, 1893.

The President. — Now we will bear the other side, and we are quite
ready, Sir Charles Kussell, to give yon fnll attention.

Sir Chakles Russell. — Mr. President and Gentlemen, I do not pro-
pose, at this stage of the discussion, to trouble the Tribunal with any
comments upon the importance of the fact of this Arbitration, — the fact
that two great Powers have come by friendly agreement to submit to
arbitration the differences existing between them. Nor do I intend, at
this stage, to comment upon the far-reaching importance of the ques-
tions involved, nor upon the dignity of this Tribunal, which has taken
upon itself the burden of dealing with those questions. I may have, at
a later stage, something to say on each of these points; but 1 desire at
once to go straight to the discussion of the subjects with which this
Tribunal is charged.

Those subjects naturally divide themselves under four heads. There
is, first, that group of questions which we have agreed to call questions
of exclusive jurisdiction and right, embraced in the five questions of
Article VI of the Treaty of Arbitration. That is the first division.
There is, next, the question of Regulations, should the occasion therefor
arise, contemi^lated by Article YLl of the Treaty of Arbitration. There
is, next, the claim for damages, which, so far as the case of the Gov-
ernment of the Queen is concerned, relates to the seizures unwarranta-
bly made, as that Government contends, and which is dealt with by
Article YlII of the Treaty of Arbitration. And, lastly, there is the
claim for damages under the 5th Article of the Modus Vivendi of 1892.

My learned friends in their discussion have dealt in a greater or a
less degree with all of these questions. The Tribunal does not require
to be again told by me the position which the Counsel for Great Britain
have assumed in relation to these questions; nor to be told that, upon
the present occasion, I do not intend to discuss at all the question of
Regulations. They belong to a different category. They involve differ-
ent considerations; and, as it seems to us, they cannot with advantage
or with clearness be approached until you have first determined the
question whether the consideration of Regulations is to be approached
in view of the existence of a legal right of an exclusive character upon
the part of America, or in view of the fact, for which we contend, that
the United States have no exclusive right of any kind in fur-seals, or
in relation to the protection of fur-seals, or in an industry founded on
fur-seals; that they have in fact no legal right of that nature at
724 all. Therefore it is that we iiropose to reserve until a later occa-
sion all discussion as to the question of Regulations.

3

4 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Nor need I stop to remind the Tribunal of the position which has been
consistently and persistently maintained by tlie Government of the
Queen in relation to these two sets of questions: rights and regula-
tions. Our position from the first lias been, and is now, an absolute
and complete denial of any exclusive right of property, jurisdiction, or
protection; but, while that is our position, we have from the first
expressed our desire to approach the consideration of the question of
Regulations in a fair, just, and equitable spirit, to api)roach it upon the
basis that this question of fur-sealing is one in which there is a common
interest of mankind, and which is not the exclusive appurtenance of any
one Power.

ISfow, Mr. President, my learned friends, the learned Counsel for the
United States, have occupied some twelve days in presenting their views
to this Tribunal: not an hour too long in view of the importance of the
questions, if it shall be found, upon consideration and examination of
their argument, that that time has been devoted to topics relevant and
apposite to the questions with which you have to deal. Upon that sub-
ject I must have a good deal to say; but 1 may be permitted for myself,
and for my learned colleagues, to join in the congratuhitions of a com-
plimentary kind exju'essed by the I'resident upon the arguments of my
learned friends. They were learned, they were erudite, they were full
of what Mr. Coudert well said in reference to the argument of Iiis learned
colleague who preceded him, but which 1 may with equal propriety also
say of the argument of Mr. Oondert himself, they were arguments full
of "intellectual allurements". "Allurements" is a good word. I shall
have to submit to this Tribunal that a great many of those arguments
were remote indeed from any of the legal questions which you have to
decide: that they have taken us very far afield: that, in this 19th Cen-
tury of Christian civilization, after the world has existed I know not
how many years, it is astounding that it should be thought necessary
to dig, as my learned friend Mr. Carter did, down to the foundations of
human society in order to try and discover those upon which the insti-
tution of property rest.

Nor can 1 think that at this stage of the world's existence, when we are
discussing, as is admitted, questions of law, — questions of right to be
determined according to law, — a Tribunal such as this can derive much
assistance from courageous ascents into the mists and clouds of meta-
physical and ethical discussion, such as my learned friend has made.
The world has lived very long; society has, through all the ages, been
struggling to evolve rules for itself, for its security, for its good order,
for peace among men: rules which have been found to suit the conven-
ience of society, which have been found to be conducive to the good
order of society, and which have found authoritative expression in the
tribunals of all civilized countries.

We cannot but think (we are of course taking the advocate's view of
the question) that, in truth, my learned friends have been but
725 making a gallant defence of positions which, in point of law, are
utterly indefensible.

Now I may assume, I think, that this Tribunal has made itself con-
versant with a large part, at least, of that mass of literature with which
each side has burdened the Tribunal ; and I think, if I am well founded
in that belief, that the Arbitrators cannot fail to have marked the change
of front in some very important points which has taken place on the
part of those who are re])i esenting the interests of tlie Uidted States.
This change of front appears when you contrast their arguments to day
with the position taken up in the diplomatic correspondence which

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 5

preceded this Arbitration, and in the proceedings wliich were institiited
at the instance of the Government of the United States in its own
municipal Courts.

I will only, iii passing, indicate generally some of those leading
changes, I do not refer to them merely for the sake of pointing out a
certain inconsistency of conduct. It will be found that „, , ^ ^

, , . , 1 1 • XI . • -4. 1 • 1 Chanpes of front

there is a real reason underlying that inconsistency, which in United states
I shall seek to develop and to bring to the notice of this position.
Tribunal m the course of tlie discussion of the case. For the moment, I
content myself with a general indication of some of the more remarka-
ble changes of front.

The first is this. Although the first four questions of Article VI deal
with the assertion of a claim derived from Russia, — a claim of exclusive
jurisdiction and exclusive rights which it is asserted Russia exercised,
and which it is further asserted passed unimpaired to the United States, —
we are now told tluit this derivative title under Russia is a matter of
practically no moment. Why? Because we are told that what Kussia
did needs not to be justified upon the basis of an exclusive jurisdiction,
but amounted simply to such executive protective acts as any Power,
apart altogether from exclusive jurisdiction, may rightfully exercise in
defence of its propei ty and interests. I shall, of course, have something
to say about that in a moment: I Avill merely in passing call attention
to the fact that it is impossible to explain the frame of those four ques-
tions consistently with any such idea of a mere inherent right of protec-
tion of property or of interest: and for tins simple reason, that each of
those questions is a question of exclusive jurisdiction in a defined area —
namely in Eehriiig Sea; and that if the acts of Russia had been acts
of defence of proi>erty — a right which is inseparable from the ])osses-
sion of property — then that right would not be confined to a defined
area, namely the eastern part of Behring Sea, but would be a right
which would exist and follow the property wherever the })roperty itself
existed. That is the first change of front, a remarkable and signifi-
cant change, — all the more remarkable when the Tiibunal bears in
mind the Statutes of the United vStates, which 1 shall have to examine
presently; the mode in which the aid of those Statutes was invoked
by the agents and representatives of the Executive of the United
726 States; and lastly, the judgments of the Courts upon those
municipal Statutes, by virtue of which judgments, and by virtue
of which judgments alone, they have secured the confiscation of and
so aflected the property in the vessels of British subjects.

The* next change of front is not less remarkable. The third of those
Questions in Article VI, the Arbitrators will remember, is the question,
"Was the body of water, now known as Behring Sea, included in the
phrase 'Pacific Ocean' as used in the Treaty of 1825?" The impor-
tance of the question cannot be exaggerated; because, if it were true
that, under the operation of the Treaty of 1825, Russia, the predecessor
in title of the United States in the Alaskan territory, had recognised
the general right of fishing in the Xorth Pacific Ocean including the
Behring Sea, of course it would go a long way to negative the existence
of any riglit to limit the right of fishing to citizens of the United States
or to those authorised by the Executive of the United States. But
to-day we are told by my friend Mr. Carter, in his elaborate argument,
that this also is a comparatively unim]iortant question. The question
Avhether, by those Treaties of 1824 and 1825, Russia recognised the
right of all the world to fish in Behring Sea has become comparatively
unimportant! although the responsible Minister of the United States,

6 ORAL ARGUMENT OF filR CHARLES RUSSELL, Q. C. M. P.

after tliis matter liad been under discussion diplomatically from Aug^ust
of 3886 till the end of 1899 — I am reterrinft', as of course the Tribunal
will recollect, to the despatch of the late Mr. Blaine, — declared in his
despatch of the 17th of December, LS9(), that if Great Britain could
satisfactorily establish that Behring Sea was included, in the Treaty of
18l'o, in the term "•Pacitic Ocean," the United States had no well-
founded cause of complaint against Great Britain.

It is odd that it should be so, but it is left to me, to some extent at
least, to vindicate the intelligence and the perspicacity of that distin-
guished American statesman. He was putting forward a case, not a
very hoi)efnl one, certainly, but still a case infinitely more hopeful — if he
could have established historically the acquiescence of Great Britain —
infinitely more hopeful than the case which is now put forward of prop-
erty, and right of protection of property, or of an industry founded
upon property.

The last change of front is this. It is not, I will admit, as marked
as the other two to which I have adverted. We are now told that
although strictly the United States could in point of law insist upon its
claim of property to the individual seals wherever they may be found, —
whether it be three thousand miles south of the Aleutians, oft' the
southern part of California, or elsewhere — yet the needs of the United
States case do not require so high a position as that. Also, that while
the property in the lieM might be claimed by the United States, still it
is not necessary to put it even so high as that. And ultinia,tely we have
come to this liosition — a very extraordinary position — that even if it be
found, as I hope to make it clear it must be found, that neither in the
seal as an individual, nor in the herd as a collection of individ-
727 uals, does any legal property exist in the United States, yet
they have a legal right to claim, and a legal right to exercise, a
power of protection over an industry founded upon the skinning of the
seals upon the Pribilof Islands.

Mr. President, from these observations you will have gathered,
although I doubt not you were not unprepared for them, how widely
we difier in the vicM^s which we take of the legal questions involved in
this controversy. But the discussion has been exceedingly interesting ;
interesting to us as lawyers, mainly because of the courage — I will not
say the audacity — with which my learned friends have propounded
proj)ositions of law which they affected to suggest w^ere almost beyond
question : propositions of law for which I hope to demonstrate there is
no legal authority whatever.

General proposi- ^^^ ^^ ^ Hie glauce at some of these propositions^ they
tiousiniunt.iiuedby arc ccrtaiuly sufficiently startling. I shall have to come
United states. ^^ closcr quarters with" them later, but I am at present
endeavouring to present what I may be iiermitted to call a bird's-eye
view of the field traversed by my learned friends. I address myself
principally to the argument of my learned friend Mr. Carter, because
the argument of Mr. Coudert was, as it seemed to us, in its major part
at least, and in its more imi)ortant part, addressed to the question of
Eegulations rather than to questions of legal right.

i^ow what were some of these propositions? One was that the right
of protection of the property and interests of a nation are exactly the
same in time of peace and in time of war: from which my friend derives
the comforting conclusion that ships of a friendly power may be
searched, seized, and confiscated because they are pursuing the oldest
form of the pursuit of seals known in the history of the world — because
they are pursuing pelagic sealing: and that the United States are

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 7

entitled to exercise those rights of war in time of peace and against a
friendly power, although there has been no diplomatic expostulation or
warning.

The next proposition is that the moral law and the law of nature are
international law — that the terms are interchangeable; and, therefore,
because the United States chooses to come to the conclusion that i^elagic
sealing is a crime — a grave moral wrong, and an indefeuvsible act —
therefore my friends come to the conclusion that it is to be classed with
I)iracy ; and that the sanctions which international law applies to piracy
may be applied to the pelagic sealer.

Again, it is asserted that even if seals are (it is not admitted that
they are) animals ferw nafurcv, yet the property in them is in the United
States, because they breed upon the islands, and have the animus rever-
tendi to them.

Now here I must x>fiuse to point the two respects in which this last
proposition displays, as it seems to us, a remarkable confusion of ideas.
It coufouniis two rights perfectly clear and perfectly distinct.

One is the right in respect of animals fercv naturce which the owner
of the soil has, ratione soli, to kill those animals when they are
728 on his soil, sometimes called (I think, inajotly called) a qualified
right of property: a right, in other words, which, by giving to
the owner of the soil the right to exclude all others from access to it,
secures to him the exclusive right, while the animals ferw natnrce are
on the soil, of killing them. That is a distinct, clear, legal conception;
a right recognized by the law as incident to property; and it is properly
called the right ratione soli. But that does not touch or affect the
question of property in those animals when they are not on the soil of
the owner.

If they be domestic animals, or if they be animals which by the
industry, care, and art of man have become assimilated to domestic
animals, then a property may exist in them ; and tlie right to possession
follows that property even when they are off the land and out of the
physical control of the owner. But the right ratione soli, which is
exclusive of everybody else, and which is exercisable only on the soil
of the owner, does not give the property in animals ferce naturm when
they are on the laud — much less when off the soil of the owner.

Again, a further confusion. Animus revertendi is referred to as if
the mere fact of animus revertendi gave property ; and in the argument
of my learned friend, greatly to my surprise, he did not attempt
to draw any distinction (indeed he said there was none), between
the animus revertendi which was i)art, so to speak, of the nature of
the animal, and the animus revertendi which alone has anything to
do with the question of property, namely the animus revertendi which
is induced by the art, the care, the industry of man. The two tilings
are distinct. If animus revertendi gives property in animals ferce
naturw, then the law of every civilized country would have given
property in pheasants, in rabbits, in hares, in almost every class of
animal which is recognized as coming under the head of game; yet it
is notorious that the law of every civilized country recognizes that there
is merely the exclusive right to take the game when it is upon the land
of the owner; and that when the game is off" the land, although it has
the animus revertendi, yet the law does not recognize the right of prop-
erty on account of that animus revertendi, although in that case it is to
some extent produced by the art and care of man himself.

The next proposition of my friend is this: Individual ownership
ought to exist in all things susceptible of ownership, and ought to be

8 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

aflBrraed to be in that Power which cau best turn those tilings to acconnt
for the use of mankind. Therefore, says luy learned friend, as the
United States are the owners of the Pribilof Islands, and as they can
kill the seals upon the Pribilof Islands with more or less discrimination,
they are the owners of the fur-seals.

Next: No one is entitled to more than the usufruct of property;
therefore, pelagic sealing on the high sea, which may be, or is, wasteful
of the stock, is an offence against international law.

And, lastly : although neither the municipal law of the United States,
nor the municipal law of Great Britain (and I will add, nor the
729 municipal law of any civilized country) would recognize property
in the seals as between individuals — supposing this were a case
of private assertion of right, and the Pribilof Islands belonged to a
private person, — yet international law can be invoked, says my learned
friend, to declare the property in the United States.

Now, Mr. President, I have to say most gravely and seriously that
there is no one of the propositions essential to the case of my learned
friend which he has propounded with which we can agree. It will be
found, as I proceed to examine these propositions, that some of them
are propositions in which the right conclusion is drawn from erroneous
premises; some of them in which the wrong conclusion is drawn from
correct premises; and, to vary the monotony, some in which both
premises and conclusion are wrong.

Having mentioned these matters, in which I have expressed, as I am
bound to do thus early in the controversy, my disagreement with my
learned friends, I am glad to turn to some points as to which I find
myself in agreement with them. I agree with Mr. Carter as to the
division of the questions submitted to this Tribunal. I agree with him
that the first five questions — those in Article VI — are questions of
legal right. And I agree with him that, as regards those questions,
they are referred to you as judges and jurists. But what does that
imj)ort ? It imports that your duty is not to make the law, but to declare
the law : not to speculate what the law ought to be, but to say what
the law is: not to formulate or try to formulate novel rights, but to
adjudge what are existing rights.

Before I proceed to state the order of my argument, I
stltes^'as to^'nt^ have some other topics to refer to. I think at the very
ture of luterna- threshold of this enquiry, as my friend has invoked inter-
aw. national law and has gone the length of saying that

international law gives him warrant for his claim of property in the
fur-seals, and as he has put forward the extraordinary proposition tliat
the moral law and the law of nature — what the law of nature in this
connexion means I do not know — are two terms interchangeable with
international law, — I think it is desirable that I should at the outset,
(though I shall have to recur to it) and for the better understanding of
my argument, state broadly to you at this stage what our conception
of international law is.

It may be admitted that all systems of law prevailing, I care not in
what country, profess to be founded upon principles of morality, and
upon principles of justice. Does it follow from that that every princi-
ple of justice, as one nation or another may view it, or every j)rinciple
of morality, as one nation or another may view it, forms part of inter-
national laAv? By no'means. International law, properly so called, is
only so much of the principles of morality and justice as the nations
have agreed shall be part of those rules of conduct which shall govern

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 9

their relations one with another. So far as they have by agree-

730 ment incorporated into the rules which are to regulate their
mutual arrangements, relations and conduct, and so tar only, can

there be said to be an incorporation of the rules of morality and of
justice, as to which nations as well as men differ : so far and so far only
can they be said to be incorporated into international law. In other
words, international law, as there exists no superior external power to
impose it, rests upon the principle of consent. In the words of Grotius,
Placuit ne genUbiis? is there the consent of nations? If there is not
this consent of nations, then it is not international law: and I think it
is very easy to illustrate that that must be so — that without that con-
sent there cannot be said to be an imprimatur^ which can give force
and efficacy to international law. If it were not so, international law
would be in a constant state of flux and uncertainty.

The ideas as to morality of civilised countries do not i^rogress pari
passu. There are many things which, according to some states of
society, justice requires, or morality requires, but which another state
of society, which boasts of a proud civilization, declines to recognize.
Two instances occur to me; I may refer to them in passing. Take the
case of privateering. Privateering, as members of the Tribunal are
aware, has again and again been pronounced by writers on inter-
national law, and by statesmen, as being the fruitful cover and source
of i)iracy — as a foster-brother to piracy and, therefore, a thing to be
put down ; and in the memorable Declaration of Paris of 1856, as the
Arbitrators will recollect, Prussia, Austria, France, Russia, Sardinia,
Turkey and Great Britain, assembled in Congress in Piiris, agreed vSo
far as it rested with them, and recorded it in the Treaty there signed,
in a condemnation of privateering as against international morals. I
think it is true to say that, except the United States of America, in
this present day there is no considerable Power in the world that
stands out against a condemnation of privateering. Will the United
States admit that because all these great Powers concurred that makes
international law f No.

The United States, for reasons of its own which I am not at all con-
cerned in discussing now, and which may be right or wrong, was not
abreast with the other Nations in that line of thought. Take again
another case, the question of the Slave Trade. As far as I know, there
is no diiference of opinion among any of the Powers which call them-
selves civilised, as to the immorality of, and the true character to be
given to, the traffic in human beings. But Nations have differed as to
the means which should be adopted for the purpose of endeavouring
to put down that inhuman traffic.

As late as 1848, although the whole voice, I may say broadly, of
humanity the world over has condemned the slave trade — and no coun-
try has gone farther to make sacrifices in the same direction, to its
credit, be it said, than the United States — a Judge of the High Court
in Great Britain, in the case of Burou vs. Denman, expressly declared
that slavery is not an offence against the Law of Nations, and that
ownership in slaves is not forbidden by the law of nations.

731 There is a curious comment made upon this proposition at page
7 of the written argument of the United States. After referring

to a decision in the same sense in the American Courts, my learned
friend Mr. Carter, alluding to Chief Justice Marshall, says —

The Snpreine Court of the United States, speaking through its greatest Chief
Justice, was obliged to declare in a celebrated case that slavery, though contrary to
the law of nature, was not contrary to the law of nations; and an English judge, no
less illustrious, was obliged to make a like declaration. Perhaps the same question
would iu the present more humane time, be otherwise determined-

10 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

2^0. sir, it would not. It could not, until nations liave given tlieir
couvsent to its being- treated as a crime against international law. These
distinguished Judges, Chief Justice Marshall, in one case, and Baron
Parke in the other, were not the mal-ers of international law: they were
but the interpreters of international law; and a Court such as this, or
any Court of Judicature more permanent in its character, could do no
more than they did, because there is not the necessary consensus of
nations stamping with its imprimatur the traffic in slaves as an oflence
and crime against international law.

Now, this brings out, as it seems to me, in very clear relief the qualifi-
cations that are absolutely necessarj^ to be introduced into this much too
wide and, therefore, unsound general jH'oposition of my learned friend;
and I would like at this stage to show a little more amply, in opposition
to it, what our case is on this point. The questions liere to be decided
must, at each stage of the discussion, be brought into juxtaposition with
a clear, definite conception of what the law of nations is. I refer the
Court to the Judgment of the Lord Chief Justice of England, Chief Jus-
tice Coleridge, in a comparatively recent case, known by the name of
the "Franconia case".

(It is reported in the 2nd Vol. of the Exchequer Division of the English
Law Eeports, under the name of the Queen v. Keyn. I have the report
within reach, and it is at the disposition of any Member of the Tribunal
who may desire to read it.) He there says, as was in fact said with
certain variations of language by all, or nearly all, the thirteen judges
who took part in that judgment, that international law is nothing more
nor less than the collection of usages which the civilized states have
agreed to observe in their relations with one another. The law of
nations iiicoi])orates many principles of ethics and of natural law; but
only such as it is agreed shall be incorporated form part of that law.
The phrase of Gvotms, placuit ne gentibus, sums up the only" possible
and the only true idea of the law of nations; and when text- writers and
theorists and diplomatists assert that such and such a usage is recog-
nized by the law of nations, that such and such a usage is opposed to
the law of nations, that such and such a right exists under the law of
nations, in each case the criterion is not whether the rule so expressed,
or the usage or the right so asserted, is humane, or is just, or is
732 moral, the sole question is whether it has received the assent and
consent of civilized nations: placuitne gentihusf

Now, side by side with this coDcejitiou of the law of nations, there is
going on in the world a gradual change and a gradual growth of opinion.
Nations are changing their customs, acted upon by external circum-
stances of their time, influenced by writers and thinkers, who in their
turn are influenced by the circumstances of their time; and so there is
a gradual formation of a body of opinion which helps to form in the
future, aids and stimulates in the future, the recognition by this or by
that extension of some principle which may afterwards be brought
within the area of international law. There may be opinions, or doc-
trines, or usages, which perhai)s are making their way in the world, are
perhaps appealing more or less successfully to the sympathy of thinkers
in the world, which are not yet part of the Law of Nations, because
nations have not consented to them. They are not the Law of Nations,
but only the material out of which, it maybe, at some future time some
new principleof the Lawof Nations may be developed as the world thinks
wise; and I point to this for the reason that my learned friend in the
citations from international writers that he has made, and in a much
larger number which are given but to which he did not refer, did not

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 11

draw that distinction wbicli mnst be drawn between those writers and
authorities, (I think erroneously called authorities), who deal with the
subject with a view to discover the metaphysical ri ounds, the ethical
reasons which may be advanced in support of this or that view, and those
writers (much less interesting- but much safer guides) who confine them-
selves to laying down what rules have in fact obtained the consent ot
nations. Therefore, it is important to call attention to the fact that
because various writers are constantly propounding ideas of their own,
suggesting these ideas as conformable to laws of natural reason and
right justice, because they are convinced that their views on those sub-
jects are right, — yet they are not to be accepted as authoritative expo-
nents of v>hat the law is, because neither doctrines derived from what
is called the law of nature, nor philanthropic ideas as to what is just or
humane, nor the opinions of text- writers however eminent, nor the
usages of individual States even if submitted to and followed by other
individual States, nor precedents, nor single instances, — none of these,
nor all combined, constitute International Law at all; although, as I
have said, they may help to stimulate the growth of public opinion among
civilised communities, the outcome of which at some future stage, by
means of some future develoi)ment, may be the incorporation of these
views, wholly or partially, into International Law.

Now, Mr. President, I thought it well at an early stage, as I must
recur to this later, to state in this general way the propositions which
have to be discussed. liut there is one other matter as to which I am
glad to say I also find myself in complete agreement with my learned

friend Mr. Carter.
733 The President. — First may I beg to put a question? You

speak of International Law as comprising the customs and
usages of nations, on which difl'erent nations have agreed.

I suppose you mean not only by written agreement, but also by right
of usage?

Sir Charles Eussell. — Certainly. When I say ''to which they
have agreed", of course, I mean not merely or necessarily by a formal
or express or written agreement, but by any mode in which agreement
may be manifested, by which the Tribunal may arrive at the conclusion
that they have so agreed.

Senator Morgan. — Including acquiescence?

Sir Charles Russell. — Certainly. I use "agreed" in that broad
and general sense.

Lord Hannen. — As a question of evidence.

Sir Charles Russell. — As a question of evidence: the question
always is, plaGuitne geniihus f You may prove that it has pleased the
nations so to agree by any method by which that can be actually estab-
lished; by express agreement, or by usage, usage long and generally
concurred in, and so forth.

I was saying there is one other point on which I find myself in agree-
ment with my learned friend, and that is that the mode in which this
question is to be determined by this Tribunal is infinitely more impor-
tant than the question itself; infinitely better v^ere it for the world that
the seals should be exterminated, and that the articlesof luxury which
are derived from them should ])erish from the iace of the earth — infi-
nitely i)referable were it that that should happen than that this Tribu-
nal should deflect a hair's breadth, in the decision of the questions,
from the true line of law. Now the importance of this question has
been so often referred to by my learned friend, in language of great
exaggeration, that I must beg permission for a few moments to reduce

12 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P.

, it to somethiiiii- like wliat we conceive to be its iust
subject to m.iu- and true proportions. My learned Iriends Lave spoken
by'unit'Jd'stTtes! ^^ ^^^^ fur-seal industry, and of the supply of fur-seal
skins for tlie benetit of mankind, as ii', were that supply
to cease, civilization would receive a rude shock. I have only to say that
fur-seal skins are not necessary to civilization, or to the happiness of
mankind in this world or the next; that so far as the Euro])eau uses of
seal skins are concerned, I believe I am right in saying that it is aluxury
or a benetit that mankind, at all events in this part of the world, has
only enjoyed for less than 40 years, 1 think I am right in saying that it
was a distinguished naturalist, Mr. Frank Buckland, who about the
year 1856 discovered a method by which the longer and coarser protec-
tive hairs, which forined part of the pelage of the fur-seal, could be
removed without injury, so as to disclose the closer and softer and more
luxurious fur which forms the rest of the pelage — that it was only
then that it came into use to any considerable extent in Europe at all.
Civilization Avent on before the advent of the fur-seal: civilisa-
734 tion will go on if it should turn out, and we should be sorry if
it so happened if it could be avoided, that the seal sjiecies should
cease to exist.

I want to point out that although my learned i'riends have been
entering into elaborate calculations as to the cost of Alaska to them,
and as to the value of Alaska to them being dependent
an importa"r"ic^ **i^ its fur-scal tishcries, when Mr. Sumner, a well known,
tor inpuichasoof and I uccd uot Say distinguished United States Statesman
Alaska. ^^ ^^^^^ dnj, was recommendiug and justifying to the legis-

lative body in the United States the purchase of Alaska, the references
to the fur-seal were of the very faintest descrii)lion.

He points to the fact (it is to be found in the tirst volume of the
Appendix of the British Case, at page 79) that various animals were
to be found in the Alaska region. He refers to the sea-otters, river
beavers, land otters, black foxes, black-bellied foxes, red foxes, polar
foxes, lynxes, wolverines, sables, swani}) otters, wolves, bears, musk-
rats, seals — tliose are hair seals, as you will see in a moment — and
so on. And lower down he refers to fur-seals, land-otters, sea-otters,
walrus teeth and so on, and descants with great ability and clearness
upon these various matters, but saying comparatively little about the
fur-seal.

He then refers, on page 82, to what he considers the real value,
namely, the Jisheries in Behring Sea — the fisheries, that is to say,
strictly so called. He says :

1 come now to the Fisheries, the last head of this enquiry and uot inferior to any-
other in importance; perhaps the most important of all. What even are sea otter
skins —

Those were, the President will remember at that time, much more
valuable than any other skins.

by the side of that product of the sea incalculable in amount, which contributes
to the sustenance of the human family.

In very eloquent language he then descants on the great variety of
fish in these regions — the halibut, salmon, cod, and the rest. I should
not feel justi lied in troubling the Tribunal to read this at any length.

Senator Morgan. — Sir Charles, did Mr. Sumner insist that they
could sell, and the United States could buy those iisheries?

Sir Charles Russell. — No, I do not think he does. He was a
much too reputable statesman for any wild proposition of that kind.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 13

Senator Morgan. — Tlien we had access to them witliout buying
them.

Sir Charles Eussell. — Yes, you did not buy the fisheries, but the
Alaska territory and such rights as were incident to it.

Senator Morgan. — 1 was enquiring what Mr. Sumner said.

Sir Charles Eussell. — Well, Mr. Sumner was a statesman, and
he nowbere says that you bought the tislieries in the open seas.

Senator Morgan. — I do not know why he alluded to the subject,
unless he attached some value to the purchase of Alaska.
735 Sir Charles Eussell. — Obviously, but what he was saying

was this: Here is a great territory, Alaska, purchased by us,
with a great sea-board, opening upon an ocean rich in all those things
that the sea contains for the benefit of mankind — fish of various kinds:
opening therefore to our increasing population new avenues of industry,
new opportunities of enterprise and new fields of commerce.

But it never entered the mind of Mr. Sumner to allege that, in pur-
chasing Alaska, he was purchasing the property in tbe fish in the sea,
or, indeed, in any of these things that I have enumerated; and he will
not be found to have said anything of that kind; there was no idea
that they were purchasing the exclusive rights of fishing in the open
waters of the ocean; and especially there was no idea that they were
buying in consideration of the value which the territory derived from
the fact that furseals resorted there, as 1 will now proceed to show
very clearly.

In 187G, a Committee of Ways and Means was appointed by the
House of Eepresentatives. And a resolution of the House was referred
to it directing an investigation into certain matters relating to the lease
by the United States Government to the Alaska Commercial Company,
and this is the Ee])()rt of that Conimittee of Ways and Means: (it is
referred to on page 70 of the British Counter-Case).

When the proposition to purchase the Alaska territory from Russia was Lelore
Congress, the opposition to it was very mncli based on the alleged barrenness and
wortblessuess of tbe territory to be acquired. It was supposed that tbongb there
might be many political reasons for this addition to the American Pacific posaes-
sions, there were not commercial or revenue .idvantages. Tlie value of those seal
islands nau not considered at all. Bussia liad derired but little revenue from them, indeed
a Slim not sufficient to pay the contingent expenses of maintaining the'offieial authority, —
Under our system, however, we have a very different result.

And, on the same page 70, you will find, Mr. President, an extract
from, I think, the most authoritative book on the history of Alaska, I
mean, Mr. Bancroft's, in whicli he refers to a Committee of apparently
a similar kind which was appointed in 18(58. There he says:

The motives which led the United States Government to purchase them (Russia's
American possessions) are thus stated in a report of the Committee on Foreign
Affairs, publislied 18th May, 1868. They were, iirst

and this answers, if I may respectfully say so. Senator Morgan's ques-
tion as to what were the objects of the purchase. —

the laudable desire of citizens of the Pacific coast to share in the prolific fisheries
of the oceans, seas, bays and rivers of the Western World, the refusal of Russia to
renew the Russia-American Fur Comi»any in 1866; the friendship of Russia for the
United States; the necessity of preventing the transfer, by any possible chance, of
the north-west coast of America to an unfriendly Power; the creation of new indus-
trial interests on the Pacific necessary to the snjiremacy of our empire on the sea
and land; and finally, to facilitate and secure the advantagesof an unlimited Ameri-
can commerce with the friendly Powers of Japan and China.

14 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

So miicli as to the motives.

Mr. Justice Harlan. — It is not your point that the United

736 States was unaware of the existence of the seals there, but that
they (lid not purchase specially with reieience to their value?

Sir Charles Eussell. — Quite so. 1 do not suggest they did not
know fur-seals were there. I am endeavourinac to reduce to what 1 con-
sider to be its just proportions the character of the question that is
involved.

The Pbesident. — In what you have just read, there is a phrase
about the American Fur seal Company which shows that the American
Fur-seal Company, which was refused a new lease by Eussia, had an
influence in the transaction of 18G0 or 1867; and that shows I think
that the American Government were awake to the importance of fur-
sealing at the moment. I do not mean to say it was the only motive,
of course, because there are a number of different motives which are
given ; but the mention of that motive shows that the fur-seal question
was not immaterial even at that time.

Sir Charles Eussell. — My point is not at all that the United States
did not know of these Islands, or may not have thought that there was
some value in the fur-seal industry; it may have been considered to
some small and limited extent; but I am citing Mr. Sumner's speech to
show that he does not put that in a prominent place. I cite the Eeport
of the United States Committee of Ways and Means to show the same
thing; and, lastly, I cite the Eeport of 1876 in which these words are
expressly used :

The value of those seal islands was not considered at all. Russia had derived but
little revenue from them, indeed a sum not sufficient to pay the contingent expenses
of maintaining the official authority.

The President. — Yes. I referred to the Committee of 1868.

Sir Charles Eussell. — I am aware you did, sir; and I was refer-
ring- to it also, to show that in 1808 they gave as their reasons for the
purchase —

The laudable desire of citizens of the Pacihc coast to share in the prolific fisheries
of the oceans, seas, bays, and rivers of the western world; the refusal of Russia —

The President. — Yes, that is the phrase; and I point it out to your
especial attention as indicating the influence of that company, which
was an American company, upon the American Government*, — that
they had been made aware of the importance of these fur-seal fisheries.

Sir Charles Eussell. — I quite follow what you mean sir. I am
not going at this moment to be diverted from the line I am pursuing;
but it will be afterwards api^arent that the company there referred to
had much wider interests than in the fur-seal; they had trading inter-
ests all along the coast, and were succeeding one of the original Eus-
sian companies to a large extent, and from their point of view the
fur-seal industry was only a part, though not a very considerable part
of their affairs. That is all I meant to convey.

Then, the later Committee (as will be seen on the top of page

737 71 of the British Counter-Case), say: "The value of those seal
islands was not considered at all."

The President. — Yes; that comes in much later; the other one was
more. contemporaneous with the transaction.

Sir Charles Eussell. — Then, finally, on the same page 71, Mr.
Elliott, who is referred to very often by some of the witnesses called
on the part of the United States as the sole authority upon the subject

• But see page 741-2.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 15

of fur-seals, says, in the beginning of that paragraph. "Strange
ignorance of their value in 18G7," This, you see, is a Eeport made to
the Government of the U. S., and recorded in 1881 among the United
States Papers.

Cousidering that this return (that accruing from the fur-seal industry) is the only
one made to the Goveninient by Alaska, since its transfer, and that it was never taken
into account, at first, hij the most ardent advocates of the purchase of Bussian America, it
is in itself highly creditable,

and so on; and then he refers to Mr. Sninner, and thus conchides:

Therefore, when, in summing all this up, he makes no reference Avhatever to the
seal islands, or the fur-seal itself, the extraordinary ignorance at home and abroad
relative to the Pribilof Islands can be well appreciated.

He is not accurate in saying that Mr. Sumner makes no reference to
the furseal; he does, and 1 have read the passage in which Mr. Sumner
makes reference to it, but as a matter of comparatively not much
importance.

Mr. Phelps. — As you refer to Mr. Sumner, have you any objection
to read the paragraph in his speech at the top of page 81?

Sir Charles Kussell. — It is a very long speech, and it would
probably induce me to read some other passages also; but I will do it
with pleasure. Do you mean the passage which begins —

The seal, amphibious, polygamous, and intelligent as the beaver, has always sup-
plied the largest multitude of furs to the Russian Company?

Mr. Phelps.— Yes; that is the passage.

Sir Charles Russell. — I will read it, if you like, although it is
giving an importance to the point which I did not intend to attribute it.

Among the furs most abundant in this commerce are those of the fox in its dif-
ferent species, and under its different names.

And then he deals with that, and says some of its furs are among the
most precious; and he describes the various kinds. In the next para-
graph he says,

Among the animals whose furs are less regarded are the wolverine —

And then he goes on,

Among inferior furs I may include that very respectable animal, the black bear,

and so on.

Then he talks of the beaver, "amphibious and intelligent",
738 which has a considerable x)lace in comiderce, and also a notoriety
of its own, and so on. And in the next paragraph.

The marten is, perhaps, the most popular of all the fur-bearing animals that belong
to our new possessions.

And then he goes on :

The seal, amphibious, polygamous, and intelligent as the beaver, has always sup-
plied the largest multitude of furs to the Russian Company. The early navigators
describe its appearance and numbers. Cook encountered tliem constantly. Excel-
lent swimmers, ready divers, they seek rocks and recesses for repose, where, though
watchful and never sleeping long witbou t moving, they become the prey of the hunter.
Early in the century there was a wasteful destruction of them. Young and old,
male and female, were indiscriminately knocked on the head for the sake of their
skins. Sir George Simpson, who saw this improvidence with an experienced eye,
says that it Avas hurtful in two ways: first, the race was almost exterminated; and
secondly, the market was glutted sometimes with as many as 200,000 a year, so that
prices did not pay the expense of carriage. The Russians were led to adoi)t the
plan of the Hudson Bay Company, killing only a limited number of males who had
attained their full growth, which can be done easily, from the known and systematic
habits of the animal. Under this economy seals have multiplied again, vastly
increasing the supply.

16 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I may supplement this on my own account with another passage.

I mention the sea-otter last; but in beauty and value it is the iirst. In these
respects it far surpasses the river or laml otter, which, thou^ih beantilul and valu-
able, must yield the palm. It has also more the manners of the seal, with its fond-
ness for sea-washed rocks, and with a maternal all'ectiou almost human. The
sea-otter seems to belong exclusively to the North Pacific. Its haunts once extended,
as far as the Bay of San Francisco, etc.

The President. — May I be allowed to remark that the fur-seal
which is actually in fashion seems to be used as a successor to the sea-
otter. You are aware that in the French language, by the custom of
French furriers, a seal skin is called jjcau de loutre, which means otter
skin and not seal-skin. No lady would think of asking- for peau de
phoque.

Sir Charles Eussell. — The sea-otter has practically disappeared.

The President. — Yes; it has practically disappeared.

Sir Charles Eussell. — It has disai)peared like the buffalo and
other animals.

Mr. CouDERT. — Like the southern seal.

Senator Morgan. — You made some reference to the statesmanship
of Mr. Sumner as being superior to the conception, as I understood
you, that there could be any purchase and sale of tislieries in the open
sea. That opinion has not always prevailed among the statesmen of
the United States, I will say, for the reason particularly that in our
Treaty of Peace with Great Britain in 1783 we found it necessary to
incorporate in the treaty the following:

It is agreed that the people of the United States shall continue to enjoy unmo-
lested the right to take tish of every kind on the Grand Bank and all the other banks
of Newfountlland, the Gulf of St. Lawrence, and all other jjlaces in the sea where
the inhabitants of both countries are accustomed to tish.

731) Of course if we had the open natural right of all mankind to

fish in the sea that provision was entirely unnecessary in that
Treaty. It was insisted on and put in.

The President. — I believe. Senator Morgan, it was an allusion to
previous Treaties with France.

Sir Charles Eussell. — I am much obliged to you, sir. That ques-
tion of the disputed fishing rights between the United States and Can-
ada on the Eastern coast of America is an illustration or an analogy —
1 do not know which to call it — relied upon by my learned friends to
which I will come in the proper order of argument; but may I, as it has
been introduced in this connection, point out that what I did say in
reference to Mr. Sumner and Mr. Sumner's statesmanship was, that the
extravagant idea never entered into his head that by acquiring Alaskan
territory he was acquiring fishes or other free swimming animals in the
sea. That is what 1 think I conveyed, or at all events what I intended
to convey; but if I may be permitted to anticipate, the President has
rightly, in a sentence, indicated the nature of the question dealt with
in the Treaty referred to by Senator Morgan. The state of the case is
shortly this: That, in conflict with France, Great Britain, then owning
the colonies of America, claimed to have acquired, partly by concession,
partly by Treaty : partly by assertion of a right, acquiesced in, though
to some extent disputed, certain exclusive rights of fishery.

Senator Morgan. — But they were a hundred miles away from the
coast.

Sir Charles Eussell. — I do not care where they were, with great
deference; it is entirely immaterial to the point I am upon. Then came
the American rebellion, and the independence of America. It thereupon

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 17

became a sovereign Power, and it claimed tliat as it liad borne its part
when a colony in acquiring these rights and in exercising these rights,
it was entitled, as an independent Power, to a continuance of those
rights which as a colony it had previously enjoyed. The contention on
the part of Great Britain was that it had lost its right by what it was
pleased to call its act of rebellion, and tliat it had no right to share in
those rights at all; and that matter xt-as ultimately arranged by Trea-
ties, only one of which you have referred to, but which I will have to
discuss at a later stage.

Senator Morgan. — The question in my mind was this. Sir Charles:
whether or not Great Britain and the United States had not in this
Treaty of peace established the jjroposition that there was such a thing
as ownership) in the fisheries that were 50 to 100 miles away from the
land, which became the subject of division of property between the
mother government and the colony when the independence of the col-
ony was accomplished?

Sir Charles Eussell. — Absolutely no assertion of property in
fishes or in any other animals whatever. There was, I agree, an asser-
tion of rights of exclusive property undoubtedly, which is a very differ-
ent matter. I do not need to tell the Tribunal that nations have
740 many times — and no two countries perhaps more prominently
than Spain and Great Britain — claimed exclusive control of large
stretches of the sea; but they have never, so far as I know, claimed
the proyjerty in free swimming animals in that area, or that they were
the ijroperty of either Government, or of any individual subjects of that
Government.

However, that is going rather far afield. But I am upon a question
which I desire to try to follow with some closeness of reasoning. 1 am
now dealing with the exaggerated importance given to this question;
and I assume, as the President said, that this question of the fur-seals
may have been one amongst many others considered in the United
States, but as far as I see not pre eminently in the minds of the United
States advisers, upon the acquisition of Alaska. Their main motiv^es
undoubtedly were the motives which were set out in that Keport of 1868,
that it was opening a large field for new enterj)rise, an extent of com-
merce and new pursuits to a rapidly extending and growing population.
But what followed the acquisition, what immediately followed and what
my learned friends have themselves dwelt on as immediately following
the acquisition of Alaska, shows how little conscious they were of the
value, as they now conceive it to be, of these islands. What happened ?
In the year following the acquisition, 242,000 seals were killed upon the
islands, and that not by the representatives of the United States or by
persons authorized by them. In the following year, 18G0, 150,000. In
the following year, 1870, 87,000: making a total in three years of close
upon five hundred thousand.

Mr. Foster. — 1870 was under the lease.

Sir Charles Russell. — 1870 was under the lease; perhaps so.
These are figures with which I have no doubt Mr. Foster is familiar.
They are taken from the published authentic accounts of the United
States, the Tenth Census Report, and certain executive documents
which are referred to.

Mr. Foster. — We have disputed those figures in our case.

Sir Charles Russell. — Well, I do not know what you have not
dis])uted ; but since it is put in that way, I had better give the reference.

The President. — The general purport is admitted, 1 believe.

Mr. Foster. — I would not have interrupted except that Sir Charles
referred to my knowledge of the figures,
B s, PT xm 2

18 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

The President. — But, General Foster, I believe that the general
purport is admitted, that in those two years there was a great destruc-
tion of the fur-seals.

Mr. Foster. — There was a great destruction iu 1868, and a lesser
destruction in 18G9.

Sir Charles Eussell. — I have read the figures, 242,000 in 1868;
150,000 in 1809. The figures for the first year are taken from the Tenth
Census Report of the United States, page 40, The figures for the sec-
ond year are taken from Executive Document No. 32, page 37, of the
41st Congress. There need be no comment about these figures.
741 But there is another consideration. Who knows what part in

the future, as a matter of relative importance, this seal fishery
may have in the economy of the world, even from the point of view
of the interest of the United States"? We know that the United States
have, all along this Alaskan territory, great salmon rivers, with nas-
cent industries, which will only reach their full development when the
growing population of the United States overflows to these to a large
extent still uninhabited regions.

Who is to say that this fashion of the day, which may change to-
morrow, may not entirely disappear: just as the fashion of the beaver
disappeared when it was found that the ingenuitj^ of man, by the inven-
tion of the silk hat, had supplied an article that was quite preferable to
the " beaver" ? Wlio knows that, compared with the permanent interest
of the world in the great food supplies so much more largely in recent
than in former years derived from the plentiful bounty of nature in the
bosom of the seas, this ocean seal industry may not in a very short time
indeed sink into a position of insignificance; and signs are not wanting
that the citizens of the United States themselves regard it in that light.
I should like to refer iu this connection to only one manifestation of that
opinion. I refer to the Report of the Board of Trade of Port Townsend,
a port of Washington Territory, which you know, is immediately south
of British Columbia, and abutting upon Puget Sound. I am referring
to page 71 of the second part of Volume III of the Appendix to the
British Case.

We do not believe tliat the lease of the " Pribilof Islands aud adjacent waters" ever
■was meant or intended to mean the whole waters of Behring Sea; but that the limit
of one marine league from the shore is the recognized limit, outside of which the
waters are known to the civilized world as the high seas, where our citizens should
he encouraged to pursue their avocations of fishing aud hunting. It is shown by the
reports of Government officials iu the publication of the Tenth Census that the
destruction of fish life by seals, sea lious, and other animals whoso sole food is fish,
is very largely in excess of the amount of fish takeii by the whole of the fisheries of
the United States; and to protect these ravenous animals is to cause the destruction
of enormous quantities of nutritious food, which should be utilized as a means of
supporting the lives of the millions of people in these United States.

The Chamber of Commerce consider that the order of the Government by act of
Congress closing Behring Sea is an act, not for the benefit of the people to secure
them a cheap article of food, but is for the sole benefit of a simple monopoly, to
enable them to supply articles of luxury for the fashionable clothing of the rich.
We believe this act of Congress to be a species of class legislation for the benefit of
the wealthy few, and as such is opposed to the principles of sound policy ; aud we
protest against its further continuance.

These views may be right or wrong.

Mr. Phelps.— What city is that"?

Sir Charles Russell. — Port Townsend in Washington Territory.

Mr. Phelps. — I did not know there was such a place.

The Tribunal here adjourned for a short time.

The President. — Sir Charles, we are ready to hear you now.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 19

Sir Charles Eussell. — Mr. President, to prevent a possible

742 misconception, I wish to refer to the Rei^ort of the Committee of
18(58, which has already been mentioned. It refers to the refnsal

of the Russian Government to renew the lease to the llnssian American
Company. The possible misconception I wish to guard against is the
supposition that becanse the word "'American"' is used it w'as in any
sense an American Comi)any. It was not — it was the representative
of the original Russian Company.

Mr. Justice Harlan. — Of tlie Russian Company under its first name?

Sir Charles Russell. — Acting nnder successive Russian Charters,
but not in any sense an American Company or owned by American citi-
zens. I thought it possible the President might have had a different
idea in his mind.

The President. — I thought in fact that Americans had got into the
company.

Sir Charles Eussell. — ISTo sir they had not. One other word. — I
pay the greatest deference, I need not say, to what any member of the
Tribunal calls my attention to, and in reference to the observation of
Senator Morgan that the United States supposed that it was buying
the fisheries or the fishes in tlie Behring Sea (as to w^iich I used perhaps
forcible language in suggesting it was im]^ossible to suppose a gentle-
man of Mr. Sumner's knowledge and statesmanship could have enter-
tained any such idea), I would refer Senator Morgan to page S5 of the
report of the same spee(;h to which I previously adverted — (it is in
vohime I of the Appendix to the Case of the British Government) — in
which he points out, quite accurately, what are the advantages which
the owners of territory enjoy in relation to fisheries. It is in this
language:

As no sea is uow mare clausiim, all tlicse — (that is to say the fisheries to which he
is adverting) — may be pursued by a ship nnder any Hag, except directly on the coast
and Avitliin its territorial limit. And yet it seems as it" the possession of this coast
as a commercial base must necessarily give to its jieojile peculiar advantages in this
pursuit. What is now done under difficulties will be done then with facilities, such
at least as neighbourhood supplied to the natives even with their small craft?

That is to say, the natives even with their small craft and with their
imperfect appliances, by reason of their residence on the coast, had
peculiar advantages in these fisheries, although as a matter of law and
of right they were open to all the world. So he says the possession of
Alaska will give special advantages to them in that regard.

It is right to point out that he uses this language in reference to fish-
eries in a more limited sense than the sense in which it has been used
here. My learned friends have si)oken of the Alaska seal fishery; their
Statutes have treated the fur-seal industry as a fur-seal fishery, and so
forth. Mr. Sumner was here particularly referring to fisliery in a more
limited sense; he w^as referring more i)articularly and itointedly to fish
of various kinds which he mentions, but he also mentions, among others,
whales; and there is no reasoning in that paragraph which would

743 not equally apply to any free swimming animal which you can
find in the sea.

Senator Morgan. — I should be very much surprised to find that
Mr. Sumner had been digressing from the doctrine established at the
time we obtained our inclependence, and was traversing the idea that
there was progress in international law.

Sir Charles Russell. — I am still endeavouring to get the Tribunal
to realize something like a just view of the proportions of this case, and
to discount the exaggerations which I suggest have been put forward

20 ORAL ARGUMENT OP SIR CRARLES RUSSELL, Q. C. M. P.

Oil the part of tlie United States. Now I bave to call attention to the
fact that when I mentioned the possible case of it beinjjfonnd that this
industry of fur-sealing', if enconraged and the species largely multiplied,
niigiit be found to conflict with more important general interests, I was
not drawing upon my imagination, becaose we have actual experience
in the legishitiou of other countries, that it has been found necessary to
olfer rewards for the extinction of animals of the same class. I would
reler to the illustrations which are given, which the Tribunal Avill find
in Vol. I of the Appendix to the Counter Case of Great Britain, page
177. The Tribunal, of course, will be ])repared for the statement from
me that we do not slirink from the legitimate consequences of the propo-
sitions that we are advancing.

We sny, first of all, that even if the result (apart from any question
of regulations which I am not now dealing with at all), of the unchecked
exercise ot' what we claim to be our right of pelagic sealing were to be
the extinction of the fur seal, that would be no reason for ]>rohibiting
the exercise of our riglit, if the right exist. It may be the foundation
of a consideration or argument why the right does not exist; but if the
right exists, and if the consequences of its exercise be the extermina-
tion of the fur-seal, we do not shrink from those consequences.

But the point lam now upon, as, of course, you will see, is somewhat
Destruction of ^^iff^^i'^^t- I aui pointing out what other countries have
the seal may be fouud it uccessary to do ill this regard, and you will find the
uecessaiy. legislation in relation to the Baltic fisheries, at page 177 of

volume I of the Appendix of the British Counter Case. Now I ought
to tell the Court that this is legislation relating, not to the fur-seal, but
to the hair seal. It makes no diti'erence in the argument, as the Tribunal
will at once see. The hair-seal is an animal pursued for the sake of its
skin. Its skin is an article of commerce. It may not be so important — I
am not able to judge of it relatively — as the fur-seal, but it is an article
of commerce for two reasons: first for the sake of its ])elage, and next
foi' the sake of the oil which can be extracted from its body; and not-
withstanding an industry largely pursued, this is the legislation:

Tho constantly increasingunmberof seals on our Baltic Coastshas become so bevions
a danger to oar coast fisheries that it appears high time to liud ways and means to
keep these injurious animals away from our shores.

Ten or titteen years ago, when our tisherraen still underrated their destrnc-

744 tiveness, and at best were amused to .see one of them, it was hardly thought

possible that these animals would one day endanger the fisheries on tho coast

of Sleswick Holstein, where they formerly appeared only in small numbers, and at

X^laces Avhere there was not much chance of their injuring the fisheries.

It is not easy to answer tho question as to bow the evil can best be remedied, for
even the use of poisoned fish as bait (apart Irom the danger connected with this
method) would not be of any nse, because the seals are very choice in the selection
of their food, and would only take to the dead bait if there was absolutely no chance
to get fresh fisli, a case which will hardly ever occur in the open sea. It niight be
recommended to ninke an experiment with bow-nets made of galvanized iron wire,
painted brown, like the color of the bow nets usually employed. The shape of these
bow-nets slu)uld be that of the common bow-nets used for catching cod, but the
entrances to the different chambers should be so arranged as to make it easy for the
seals to slip in.

And thereupon there is a suggestion by Mr. Hinckelmann as to what
ought to be done.

Mr. Justice Harlan. — Before you leave that. Sir Charles, I should
like to ask, do you know whether that report was supplemented by
legislation °i

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 21

Sir Charles Eussell. — That I do not know. We find that there is
legislation in the case of Denmark, I am not sure about the other case,
bur, I will enquire as to that.

Senator Morgan. — Is any of that legislation in force now?

Sir Charles Eussell. — I have just said that I ara not sure wlietlier
it was followed by legislation.

Then as regards Iceland this is the note:

The attention of the Legislative AsseniLly was not specially directed to this matter
of protecting the fisheries, nor were laws vnarted on this snbject before 1885; and
the present laws are in many instances primitive, imperfect, and inconvenient, accord-
ing to the conditions of the country. One of the worst features is that in regard to
seals, which are so injurious to the salmon fisheries. This is contained in section 4
of the following statute. The defective point about this bit of legislation is tliatin
all salmon rivers (with one excejition) and their mouths, where there are seals there
are also seal-catching places, so that the law is of little or no benefit to the saluion, as
it is forbidden to disturb the seals in the places where they are at all easily accessible.

Section 4 referred to is as follows:

Section 4: In rivers and their mouths where there are salmon, it is allowed to shoot
or frighten seals, with the restriction that the inviolability of breeding and seal-
catching places, which are tlius especially proclaimed, must not be infringed upon,
except with the penalty of full damages, according to the estimate of good men nomi-
nated by the judge and sworn in court.

Then as to Denmark there is this:

. Owing to rewards now granted by the Fishing Society of Denmark, amounting to
3 kroners for each seal killed, according to the Copenhagen correspondent of our con-
temporary, "Industries" the extermination of seals is now being energetically pur-
sued in Danish waters. It appears that in those localities where the fisliery industry
has been pursued with least success the seals most abound. A seal is seldom seen in
tlie neighborhood of Middlefart, in the Little Belt, as the fishermen in that neigh-
borhood are very active in fishing and seal hunting.

An contraire, on the small island of Hosselo, north of Zealand, one man sent in the
heads of no less than 120 seals, while another man sent in 40 within the last ten
months. Daring this jieriod 810 seals have been killed.

745 And, finally, there is a citation on the same page, taken from

a United States paper of February of 1892. '

The T)ay fishing in Essex County, Massachusetts, has been so seriously injured by
the alleged depredations of seals that the authorities offered a bounty of 1 dollar
each for killing them. During 1891 the fishermen killed forty-four on tJhe coast, and
in the rivers of the county.

I do not find there was any difference made between males and
females; or that the laws of IS'atnre, so strictly insisted upon by my
friend Mr. Carter, were regarded as standing in the way of what was a
necessary attempt to protect a very valuable industry. I leave this
subject with only one concluding suggestion. All the members of the
Tribunal may not be aware — many of them I know are aware — that
along the coast of Washington in United States territory, and along
the coast of British Columbia, (and I think growing industries of the
same kind are springing up farther north), are to be found great salmon
fisheries, and great canning industries carried on in connection with
those industries. I luive myself seen them on the Willamette Eiver:
they are on the Columbia Eiver: they are on the Iradis Eiver — they are
on several other rivers along that coast. Now can it be doubted — is it
possible even to suggest it? — that if it were found that those seals
were, in a serious degree, interfering with these canning industries,
either upon the British Columbian Coast or uiion the Alaskan Coast,
that it would not be perfectly within the right of those who were inter-
ested, by all legitimate means, by all means in their power, short of
means which would do injury to the rights of some one else or cause
unnecessary or malicious injury to any one else, to do what they pleased
to exterminate these animals which were preying upon <ind injuring
what they regarded as an important and valuable' industry?

22 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Senator Morgan. — Do you recollect whether Canada passed any
Statutes offering' a reward for killing- seals, or whether they are in oper-
ation?

Sir Charles Russell. — 1 will enquire; 1 am not aware of any. I
rather think there are some liegulations in that sense — (whetlier they
amount to Statutes or not, I will not say) — relating to the fisheries on
the east coast; but I will enquire and endeavour to supply the neces-
sary answer.

Now I i^ass from that topic, in the consideration of which I have
endeavoured to get the mind of this Tribunal in a fitting frame to con-
sider according to its intrinsic merits and just proportion what this
question of pelagic sealing really is. There are some other preliminary
matters which 1 must also refer to. The Case, the Counter Case, the
Argument, printed and oral, of the learned counsel of the United States
have been full of denunciations of pelagic sealing. It has not only
been denounced as inhuman, but each act of the pelagic
ri?w ^If ''pHa^ic sealcr has been denounced as a crime and a great moral
seaiiiicr taken %y wroug — a little Avorse tluui murdcr, and almost as bad as
United Stales. pjracy. Xow I wisli to examiue this for a moment or two,
746 and see whether there is not pervading this style of argument the
same kind of exaggeration which was addressed to the subject
of the industry itself.

We start with this initial fact, that the pursuit of the fur-seal by
means of pelagic sealing is the oldest pursuit of the fur seal historic-
ally known. We start with that fact. It is a pursuit which goes back
(to use my friend, Mr. Carter's expression) to prehistoric times. It is a
pursuit followed by the aboriginal inhabitants along tiie coasts in ques-
tion. But there is also something more to be said for it. My friend
Mr. Coudert was sympathetic, as he always is, in his denunciation of
the evil caused by the destructive agencies of man as regards seal rook-
eries in other parts of the world. How stand the facts? Is pelagic
sealing, whatever its faults, accountable for that! No. In every one
of the cases which have been referred to, the cause of the extermina-
tion of the fur-seal species was tlie indiscriminate slaughter upon Jand.
I am not suggesting for a moment that there is not a difference between
the system pursued by the United States and their lessees on the
Islands and that pursued in the indiscriminate slaughter on the other
rookeries in the world. But the fact remains that it has been slaughter
wpon land, and in no case slaughter at sea, that has brought about the
extermination of the seal species in any of its accustomed rookeries.

Further: it is true to say that discrimination cannot be pursued in
relation to pelagic sealing — at least practicalli/ cannot be i)ursued. I
I)resume it would be possible to distinguish a full-grown male seal from
a young seal, but I take it to be common ground between us that, tak-
ing the sizes of seals two and three years of age, it would not be prac-
tically possible to distinguish between a female and a male in the water.
That is an advantage, ])ro tanto, in favor of land killing. But are there
no disadvantages in land killing"?

I have been unable to repress a smile when reading the beautifully
descriptive, but most imaginative accounts, which are given in the lit-
erature of the United States, as to the merits and blessings of killing
on land. In one passage the writer has gone to the length of suggest-
ing that the seal herd, grateful for the protection of the United States,
reposing with confidence in the humanity of man, had entered into a
treaty with the United States — the word "pact" I think was used —
that they would offer up a certain proportion of their skins yearly as a

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 23

grateful tribute, iu recognition of the protection that they derive from
the beneficent rule of the Agents and Lessees of the United States,

Now, from these imaginative pictures highly creditable to the human
sympathies, and to the imaginations also of those who composed tliem,
I would like to turn in prosaic fashion to the actual facts. What are
the actual facts? I am not now dealing at all, the Tribunal will under-
stand, with any considerations which go to build up, in the estimation
of the United States, their claim to property. I am simply consider-
ing whether there are not certain matters which ought to be borne in
mind by this Tribunal in order that it may be able to consider

747 this question of pelagic sealing without having its reason dis-
torted by passion or prejudice: whether there are not other facts

which ought to be presented to it, in order to mitigate the tale of sup-
l)Osed horrors attendant upon the practice of pelagic sealing: horrors
from which as they contend (but contend untruly as we submit) killing
on land is free. Now for this i^urpose I may refer the Tri-
bunal at once to chapter 14 of the Counter-Case of the uJif^g^erotn't'^lird
British Government. It begins on page 260. Its subject kniing on the is-
is: "Management of the Pribilof Islands by liussia and ^^°*^^'
the United States". On page 261 there is a general statement, which
I Mill not trouble to read, of the method of driving which is there prac-
tised, as the most injurious feature of the system practised on the Pri-
bilof Islands, and it then proceeds to point out — citing authorities upon
the subject — its unnatural and destructive character.

But 1 turn from those general arguments and general statements to
page 262, where citations, very a propos^ are taken from the reports of
Mr. Elliott beginning as far back as 1872, that is to say five years after
the acquisition of Alaskan territory fi-om Russia. He says:

A drove of seals on hard or firm grassy ground, in cool and moist weather, may be
driven with safety at the rate of half-a-mile an hour; they can be urged along with
the expenditure of a great many lives, however, at the speed of 1 mile or 1 1/4 miles
per hour; but this is seldom done.

Further on he speaks of the disposition of the old seals to fight rather
than endure the panting torture of travel,
and on the next page he writes :

The progression of the whole caravan is a succession of starts, spasmodic and irreg-
ular, made eveiy few minutes, the seals pausing to catch their breath, and make,
as it were, a plaintive survey and mute protest. Every now and then a seal will
get weak iu the lumbar region, then drag its posteriors along for a short distance,
finally drop breathless and exhausted, quivering and panting, not to revive for
hours — days, perhaps — and often never. During the driest driving days, when the
temperature does not combine with wet fog to keep the path moist and cool, quite a
large number of the weakest animals in the droves will be thus laid out and left on
the track.

This prostration from exertion will always hapjien no matter how carefully they
are driven; and in the longer drives, such as 2 1/2, and 5 miles from Zapadnie on the
west, or Polavina on the north, to the village of St. Paul, as much as 3 or 4 per cent,
of the whole drive will be thus dropped on the road; hence I feel satisfied, from my
observation, and close attention to this feature, that a considerable number of those
that are thus rejected from the drove, and are able to rally and return to the water,
die subsequently from internal injuries sustained on the trip, superinduced by this
over-exertion.

Then a citation is made from Lieutenant Maynard of the United States
service. This is in 1874, that is to say eight years after the acquisition
of the islands :

There has been a waste in taking the skins, due partly to the inexperience of the
Company's Agent, and partly to accident and the carelessness of the natives. In

748 making the drive, particularly if they are long on, and the sun happens to
pierce through the fog, some of the seals become exhausted and die at such a

24 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q C. M. P.

distance from the salt-houses tliat their sldus cannot well be carried to tlieru by hand,
and are, therefore, left npon the bodies.

And tlie aiicicTit Kussiau clironielor, to wloni my friends Mr. Carter
and Mr. Coudert more than once referred witli ai)])roval, — a cleric or
bishop, 1 am not snre whicli, — Veuiamiuof, writing with reference to
1842, thus shewing that this is not a new idea, says:

Nearly all the old men think and assert that the seals which are spared every year
{. e. those which have not been killed for several years are truly of little use for
hreediug, lying about as if they were outcasts or disenfranchised.

And Captain Scammon, also of the United States service, says:

The loud moanings of the animals when the work of slaughtering is going on beg-
gars description; in fact, they manifest vividly to any observing eye a tenderness of
feeling not to be mistaken. Even the simple hearted Aleutians say that " the seal
Bheds tears".

Those, you will see, are early strictures upon this method of driving.
I now proceed to-shewthat they are methods which are continued, and
that they are marked by as ^reat cruelty and aggravation as formerly.

Mr. Phelps. — As to one of these extracts, it is right to say we claim
that is a false translation.

Sir Charles Russell. — Whicli?

Mr. Phelps. — The translation to wliicli you alluded, of the Russian
author.

Sir Charles Russell. — Which is the one?

Mr. Phelps. — Veniaminof.

Sir Richard Webster. — We will get tlie original; we have never
lieard that before.

Mr. Phklps. — It is in the Counter-Case. We have exposed it in the
Counter-Case.

Sir Charles Russell. — I do not recollect that. At present what
I am concerned with is this: that this extract, I wish the Tribunal to
understand, from Veniaminof is taken, and taken correctly, from the
Census Report, which is ah official document furnished to the United
States. I understand my friend Mr. Phelps to intimate that in the way
it appeared in that ofticial document, it is erroneously translated.

Mr. Phelps. — It is copied from Elliott's translation into the Report.
The translation was made by Elliott.

Sir Charles Russell. — 1 was stating it correctly, I think. There-
fore what I understand is this : When w^e rely upon an Official document
of the United States, my friend retorts upon us and says: " Bnt the
official of the United States has mis-translated some document w^hich is
referred to in that Report." Be it so. If it is so ascertained to be, let
it be made apparent.

But now I go on to the next page, 264, and there we have his
749 later exi)erience. He says in 1890 — this is to be found in his
Report furnished to us by the United States:

I can see now, in the light of the record of the work of sixteen consecutive years
of sealing, very clearly one or two points which were wholly invisible to my sight
in 1872-74. I can now see what that efi'ect of driving overland is upon the physical
well-being of a normal fur-seal, and, upon that sight, feel warranted in taking the
following ground.

Would you be good enough to allow my learned friend. Sir Richard
Webster, to read this page for me in order to give me a moment's
pause?

The President. — Certainly.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 25

Sir EiCHARD Webster.

Tlie least reflection will declare to an observer that, while a fnr-seal moves easier
on land ami freer than any or all other seals, yet, at the same time, it is an unusual
and laborious effort, even when it is voluntary; therefore, when thousands of young
male seals are suddenly aroused to their utmost power of land locoi>!otiou over
rough, sharp rocks, rolling clinker stones, deep loose sand, mossy tussocks, and
other equally severe impedimenta, tiiey in their fright exert themselves most vio-
lently, crowd in confused sweltering liea])s one upon the other, so that many are
often smothered to death; and, in this manner of most extraordinary effort to be
urged along over stretches of unbroken miles, they are obliged to use muscles and
nerves that nature never intended them to use, and which are not fitted for the
action.

This prolonged, sudden and unusual effort, unnatural and violent strain, must
leave a lasting mark upon the physicMl comlition of every seal tiius driven, and
then suffered to escape from the clubbed pods on the killing-grounds; they are
alternately heated to the point of sutFocation, gasping, panting, allowed to cool
down at intervals, then abruptly started up on tlie road for a fresh renewal of this
heating as they lunge, shamble and creep along. When they arrive on the killing-
grounds, alter four or five hours of thif? distressing effort on their part, they are
then suddenly coobd otf for the last time prior to the linal ordeal of clubbing; then
when driven up into the last surround or ''pod", if the seals are spared from
cause of being untit to take, too big or too little, bitten, etc., they are permitted to
go off from the kiirnig-groun<l back to the sea, outwardly unhurt, most of them;
but I am now satisfied that they sustain in a vast majority of cases internal injuries
of greater or less degree, that remain to work physical disability or death thereafter
to nearly every seal thus released, and certain destruction of its virility and courage
necessary for a station on the rookery, even if it can possibly run the gauntlet of
driving throughout every sealing season for five or six consecutive years, driven
over and over again as it is during each one of these sealing seasons.

Therefore, it now appears ])lain to me that those young male fur-seals which may
hai)pen to survive this terril)le strain of seven years of driving overland are rendered
by this act of driving wholly worthless for breeding purposes — they never go to the
breeding grounds laud take up stations there, being utterly demoralized in spirit
and in body.

With this knowledge, then, the full effect of "driving" becomes apparent, and
that result of slowly but surely robbing the rookeries of a full and sustained supply
of fresh young male Idood, demanded by Nature imperatively, for their support up
to the standard of full expansion (such as I recorded in 1872-74), — that result began,
it now seems clear, to set in from the beginning, twenty years ago, under the present
system.

Sir Chahles Russell. — Now at a later stage and in a different con-
nection 1 shall have to dl•a^v the attention of the Tribunal aoain to the
statement at the bottom of page 264 of the British Counter-
750 Case as to the certain destruction of its virility and courage
necessary to the male seal for a station on the rookeries, as one
cause Avhicli has contributed largely (with others I admit) to the
deficiency in numbers.

Then on the same page is the Treasury Agent's (Mr. Goff) Report for
ISDO. This has nothing to do, you will understand, with the Report of
]Mr. P^lliott. This is the independent Report of the Treasury Agent.

Sir Richard Webster,

Now, in opening the season it is customary to secure all the two-year olds and
upwards possible before the yearlings begin to fill up the hauling grounds and mix;
with the killable seals. By so doing it is much easier to do the work, and the year-
lings are not tortured by being driven and redriven to the killing grounds.

Heretofore it was seUlom that more than 15 per cent of all the seals driven in the
latter part of June and the first few days of July were too small to be killed but
this season the case was reversed and in many instances 80 to 85 per cent were
turned away. The accompanying percentage examples will shew the disposition of
this year's drive. The first killing of fur-seals by the lessees was on the 6th of June
ami the scarcity of killable seals was apparent to all. 1 he season closed on the 20th
of July, and the drives in July shew a decided increase in the percentages of small
seals turned away and a decrease in the killables over the drives of June, demon-
strating conclusively that there were but few killable seals arriving, and that the
larger ])art of those returning to the islands were the pups of last year. The aver-
age daily killing for the season was 400, or a daily average of 522 including only the

26 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

days ■\vorkefl . . . We opeiiod the season by a drive from tlie Reef rookery and turned
away 83 1/2 per cent, when we sliould have turned away about 15 per cent of the seals
driven, and we closed tlie season by turning- away 86 per cent., a fact wliich proves
to every impartial mind that we were redrivinp; the yearlings, and considerin3^ the
number of skins obtained that it was impossible to secure the number allowed by
the lease, that we were merely torturing the young seals, injuring the future life
and vitality of the breeding rookeries to the detrimeut of the lessees, natives, and
the Government.

Sir Charles Eu^^ell. — Then Mr. Lavender, tvLo was also an Assist-
ant Treasury Agent of the United States, says in condemnation of
these drives:

All the male seals driven should be killed, as it is my opinion that not over one
half ever go back upon the rookeries again.

Then we come to an important paper read before the Biological
Society of Washington by Mr. William Palmer of the United States
National Museum, in which he, writing in 1891, treats the subject on
the same lines, and I will ask my learned friend to read that for me.
It is proper to say, as indeed this extract shows, that he has enlarged,
in the earlier part of this i^aper, upon the evils which he conceives to
be attendant upoui pelagic sealing, and then he proceeds to point out
that pelagic sealing is not the only cause which has worked to the
detriment of the seal.

Sir EiCHARD Webster. — This is taken from pages 187 and 188 of
the British Commissioners' Report; but it will be found in part in the
Counter-Case on page 206.

But pelagic seal fishing is not the only cause of the decrease of seal-life on the
Pribilofs.

Probably an equal cause is the unnatural method of driving seals that has been
followed on the islands since the lirst seal was captured.
751 The mere killing of seals as conducted on the islands is as near perfection as

it is possible to get it.

They are quickly dispatched, and without pain. One soon recognizes, as in the
killing of sheep, that in the qxiickness and neatness of the method lies its success, all
things considered.

But the driving is a totally difiercnt matter. I doubt if any one can look upon the
painful exertions of this dense crowding mass, and not think that somewhere and
somehow there is great room for improvement. It is conducted now as it always
has been; no thought or attention is given to it, and, with but one exception, no
other method has been suggested, or even thought necessary.

The fur-seal is utterly unfitted by nature for an extended and rapid safe journey
on land. It will progress rapidly for a short distance, but soon stops from sheer
exhaustion. Its flipper's are used as feet, the belly is raised clear from the ground,
and the motion is a jerky but comparatively rapid lope. When exhausted, the ani-
mal flops over on its side as soon as it stops moving, being unable to stand up.

The character of the ground over which the seals are driven is in many places
utterly unfit for the purpose; up and down the steep slopes of sand dunes, over cin-
der hills studded with sharp rocks, some places being so bad that they are avoided
by the people themselves; but the seals have been driven over the same ground for
many years, and on some of the hills deep paths have been worn by the passing of
tens of thousands of seals. No attempts have been made to remove the rocks or to
lessen the difiiculties of the passage and the seals are still driven pell mell over huge
rocks and down steep inclines, where many are crushed and injured by the hurrying
mass of those behiud. When the drive reaches the killing ground it is rounded up
and left in charge of a man or boy to await the killing, which begins at 7 a. m. A
pod of perhaps 60 seals are then cut out of the drive and driven to the killers, who
with long wooden clubs stun those seals that are of proper size and condition by a
blow or two on top of head.

The seals that are not killed are then driven away by tin pans and a great noise,
and while in an excited and over-heated condition rush as fast as it is possible for a
seal to go into the icy cold waters of Behring Sea.

It will thus be seen that these seals are subjected on an average from 2 o'clock
in the morning until 10 to a long drive over very rougb ground, then to a dense

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 27

herding, wbere tbey are coritinnally in motion and crowding eacli other, thence to an
intense excitement on the killing ground, and linally in a condition a little better
than madness rushing into icy cold water.

Uncivilized and partly civilized man has no pity for dumb brutes, and as these
drives are conducted entirely by the natives, who prefer indolence in the village to
the discomforts of a drive in the fog and r;iin, it follows that the seals are often
driven much iaster than they should be, and absolutely without thought or care.
But this is not all. The seals that are spared soon haul out again near a rookery,
£.iid perhaps the very next day are obliged to repeat the process, and again through-
out the season, unless in the meantime they have crawled out on a beach to die, or
have sunk exhausted to the bottom. The deaths of these seals are directly caused
ae I shall explain and, as far as I am aware, it is mentioned now for the first time.

Mr. Palmer then states that lie believes death to result chiefly from
the consumption of the natural store of fat while the animal is too
exhausted to go in search of food. He continues:

I remember looking with curiosity for the cause of death in the first seal I found
stranded on the beach. Externally there was nothing to indicate it, but the first

stroke of the knife revealed instantly what I am confident has been the cause
752 of death of countless thousands of fur seals. It had been chilled to death;

not a trace remained of tlie fat that had once clothed its body and protected
the A'ital organs within. . . I opened many after this, and always discovered the same,
but sometimes an additional cause, a fractured skull peihaps. I have even noted,
those left behind in a drive, and watched them daily, Avitli the same result in many
cases. At fii'st they would revel in the ponds or wauder among the sand dunes, but
in a few days their motions became distinctly slower, the curvature of the spine
became lessened; eventually the poor brutes would drag their hind flippers as they
moved, and in a few days were become food for the foxes. In every case the fat had
disappeared.

During the eight years minoritj- of the few male seals that have escaped their
enemies it is safe, I think to assume that at least four summers Avere spent in getting
an experience of the drives. Does any one think that they were then capable of
filling their proper functions on the rookeries?

The natives have been provided with whistles, and when a boat finds itself near a
rookery (and a pretence for its presence is easily found) good use is made of them,
with a consequent confusion among the seals and a proljable increase in the next
morning's drive.

Sir Charles Ru«sell. — IS^ow finally, after speaking of the method
pursued on the Commander Islands, he contrasts the state of affairs as
observed by him on the Pribilof Islands, in these words:

On the American side, on the contrary, the seals are driven as fast as possible, the
only ones being weeded out being those too weak to go further, while of those
rounded up on the killing-ground by far the greater number are allowed to escaj)e.
Out of a drive of 1,103 counted by me only 120 were killed; the rest were released.

Now, upon that, the comment made by the British Commissioners is
not, I submit, an unfair one, they say:

If it were possible to drive only those seals which it is intended to kill, little
exception could be taken to the method of driving in the absence of any better
method, but the mingling of seals of varied ages upon the hauling-grounds from
which the drives are taken, even under the original and more favorable conditions
of former years, renders it necessary to drive to the killing jilace many seals either
too young or too old to be killed.

And then finally, at the top of page 269 of the Counter-Case:

Thus, it has occurred that, in late years, considerable and increasing numbers of
breeding females have been driven to the killing-grounds with the killables, though
when recognized there in the process of selecting for killing, they have been released.

Now 1 will only make this comment on that evidence to which I have
referred: does it not seem to each Member of the Tribunal that the
laudation bestowed upon the system on the Islands has been a little too
unqualified : that it is difficult to say that their methods are not marked

28 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. V.

by inhnmaiiity and cruelty, aiul that it is difficnlt also to say tliat they

are not followed by waste, when you have j^ot the statements by inde-

I)endent persons, representatives of and connected with the Executive

of the United States, pointing' to the h)ss by thousands of seals

753 which, subjected to this unusual pressure of locomotion on land,
for which nature never intended them, are then separated from

the herd, and many of them die? They die immediately from the
injuries they receive, and many become utterly useless for tlie purpose
of breeding, their courage and virility being unduly affected.

One point remains. It is still to be said for their methods on the
Islands that they make the attempt to discriminate and do discriminate
between the sexes; but, even as regards that, the facts show, as I shall
proceed to demonstrate at this moment, that they have of late years
on the Islands themselves been committing that grievous moral crime
of killing females.

Now, how is that established? It is established by the evidence
referred to yesterday and also at a previous sitting by my friend Mr.
Coudert; but he only read (I am not making it a matter of complaint)
quite naturally the passages in that evidence which were ad rem to the
particular points that he was discussing. But I have to call your
attention now to some of the other evidence, and I refer for this pur-
pose to the second Volume of the Appendix to the Counter-Case of the
British Government. I will begin at page 245. This is the evidence
■which my learned friends have been praying in aid, quite justifiably,
upon another part of the case, — endeavouring to make out a distinction
between the Alaskan and the Eussian herds, as they have been called.
I am not dealing with that point, as, of course the Tribunal under-
stands, I am on the point that, according to the existing methods, there
is inhumanity, there is waste, and there is not absolute discrimination
as to sexes on the Islands.

I refer, first, to the gentleman who has received, I have no doubt
quite justifiably, a high laudatiou from Mr. Coudert, — I mean, Mr.
Stamp; and, if , you read paragraph 5 of his affidavit, you will see that
he says :

A noticeable feature about the consigumeiits from tbe Pribilof Islands has been
tbat, while formerly the consignments were entirely composed of male skins, of late
years, from 1883 np to 1890, female skins have appeared among them each year in
increasing numbers.

Then, on page 249, — I am only selecting those who are the most con-
siderable witnesses referred to by my learned friend, Mr. Coudert, — in
the declaration of Mr. Bevington, paragraph 3, he says:

As regards the Alaska Catch, I have during the last four or five years noticed
amongst them a small quantity, — say from 10 to 15 per cent. — of female skins.

And Mr. AUhusen, on the same page, paragraph 3, says:

There is another feature in relation to the Alaska skins, namely, that they, for the
most piirt, are entirely composed of male skins. Of late years, that is to say, from
the year 1883 or 1884, I have noticed fimongst this consignment a certain percentage
of female skins, which percentage has increased in later years.

The same thing is to be found in paragraph 9, page 250, of the

declaration of Mr. Henry Poland ; and there are several more in the same

sense, but I will not trouble the Tribunal by referring to them.

754 I say, therefore, that it stands thus: I do not at all concede (I
am sure the Arbitrators will understand this) that these con-
siderations — and I will give the reasons when the proper time comes —
have anything to do with the question of affirming the right of prop-
erty, or the right of protection, which of course can be only incidental

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 29

to tliat property. If tlieio is no property, there is no protection,
because there is nothing to protect; but I chvell upon this, because, I
think it important to do so in order that the Court may see tliat the
claim wluch the United States Counsel have been instructed to make,
or thongiit lit to make, that the system pursued on the Islands is wliolly
free from objection on the ground of waste or on the ground of cruelty,
is a claim which, when the facts are examined, is seen not to be w^ell-
founded. There is certainly this to be said — and my learned friend,
Mr. Coudert, made it a subject of humourous observation, but it seems
to me a just enough observation, — that the pursuit of the seal at sea
does give the animal a chance of escape. The clubbing him on the
head makes the islands a mere slaughter-house for the seal and gives
him no chance at all. And after all there is this to be said for pelagic
sealing, that at sea the seal is in his natural, or what I claim to be his
natural element; and he has been furnished by nature Avitli means of
resistance to the attempts of man, with means of evading the pursuit
of man, which give him a better chance of life and of escape.

Now my learned friends, as the Tribunal cannot fail to have noticed,
have adopted a lofty tone in this discussion. I think you, Mr. President,
said that Mr. Carter, in his eloquent address, spoke for mankind. He
did. How h.e spoke for mankind I shall make apparent in a moment or
two. But my learned friend, in effect, said this : "We the United
States are not nuiking this claim from any selhsh motives. We are
here as the iriends of humanity. We acknowledge that this is not our
property absolutely. We are trustees for the world at large. We are
trustees: mankind the cestuis que trustent. We only ask to be per-
mitted in the interests of mankind, for the benefit of mankind, to per-
form our oflice as trustees, as friends of humanity, as philanthropists,
as champions of the interests of the world".

Well, I am very far from doubting the sincerity of my learned friends;
but I must be permitted to point out that, while accepting these profes-
sions as sincere, their demands seem to me to be exactly the demands
which would be made by a selfish Power making an eft'ort to secure the
seals for themselves; for what do they say"? " We are the owners of
the Pribilof Islands in Beliring Sea. They are pleased pathetically to
desciibe those Islands as the last home of the fur-seal". They say:
" Give to us, the tenants and owners of these Islands, the power to
exclude everybody but ourselves from the great expanse of ocean in
which those Islands are situate. Put au end to pelagic sealing in the
Behring Sea, and not in Behring Sea only, but justify us in stretching
out the arm of legal authority over a still wider expanse of ocean.
Authorize us by your award to search, and if necessary to seize
755 and confiscate, vessels that are engaged in this inhuman, this
immoral trafBc, or vessels that we suspect are engaged in this
pursuit; and having given us that authority we will recognize our duty
as trustees to mankind by giving to mankind the benefit of the fur-
seal at the market price": the market price being enhaiued by two con-
siderations: the considerations, first, the duty which the United States
imposes upon every fur-seal skin taken on the Islands; and enhanced,
next, by the fact of the monopoly which this demand implies and
secures.

I will only take leave to say that that does seem to be a very extr;iva-
gant view of the obligations of a trustee for the benefit of mankind, and
that I do not see in what way this i)r(tfession of the duty and obliga-
tion of the trustee differs from the assertion of the most exclusive and
absohite right which the most selfish nation might assert in any sub-
ject of exclusive property.

30 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I wish to make this position as to the conditions on which they offer
this coiumodity to mankind pretty plain. If they disapprove — and I
believe they do disapprove — of pcla.uic sealing, I am going to give tliem
the benetit of a suggestion which will put an end to jx'lagic sealing.
What is it that has made pelagic sealing worth the efforts and enter-
prise of the men who have now made it a considerable commerce'? It
has been the fictitious, enhanced value that has been put upon seal-
skins by reason of the exaction which the United States make in resj^ect
of every skin brought in to their dominions — an exaction from wliich
the territories outside their dominions are free. What is that? For
this is a matter that I think is not yet in the apprehension of the
Tribunal.

From 1870 to 1880 the United States were paid a yearly rental of
$55,000 for the tenure of these islands. In addition to that they imposed
a tax of -$2.02,5 per skin, which on a hundred thousand skins would
amount, spreading the rental over the entire number, and adding, of
course, the exaction per skin, to $3.15 per slvin, or thirteen shillings in
Englisli money. From 1800 the rent Avas $00,000 yearly rental for a
lease from 18'J0 for twenty years, which w^ould expire, therefore, in 1910.

The tax was raised to $9.02.5 per skin, and the limit was 60,000 skins
per year; and in the same way, taking the yearly rental of $60,000, and
adding a proportionate part to the $9.02.5 per skin, we find that the
exaction in respect of each skin is $10.62, or over 42 shillings, English
currency. There is the secret of pelagic sealing. Those who think
they have the right to pursue it, United States citizens be it noted
amongst the rest, Caniulian settlers amongst the rest, subjects of the
Queen inhabiting these parts, are tempted to engage in it; and it is
that A-ery exaction which su])plies the motive and gives the reason for
pelagic sealing. I need not say that I am not questioning the right of
the United States in its wisdom and judgment to impose any tax it
pleases, under any conditions it pleases, upon those who are subject to
its rule. That is not the object of my argument. My argu-
756 ment is to show that it is this very exaction which gives to those
who are outside the dominion of United States law the freedom
from that exaction which supplies the motive without which pelagic
sealing would not be an existing thing to-day. I do not doubt tlie sin-
cerity of my friends. If those who instructed them, if those who actuate
the policy of the United States, desire sincerely, as trustees with no
selfish purpose, as trustees for the benefit of mankind, to send these
blessings abroad, to send them abroad on reasonable terms, and above
all, while they are doing that, to put an end to pelagic sealing, the
remedy is to be found in the direction which this suggestion of mine
indicates.

Senator Morgan. — Sir Charles, do you know whether the price at
which the United States have taxed these skins has had the effect of
raising the price of the Kussiau and Jai)anese catches?

Sir Charles Ettssell. — I am not able, sir, off hand, to say; but I
should say certainly it would have that effect too.

Senator Morgan. — I have not seen any evidence of that fact in this
case.

Sir Charles Russell. — 1 think some of it will be forthcoming a
little later.

I am really tempted to exclaim — I mean no offence to my learned
friends — when the argument is put forward in this specious way, I am
tempted to exclaim with Dr. Johnson, our great lexicographer, " Let us
rid our minds of cant". Let us approach this question fairly, look it

ORAL ARGUIMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 31

straight iu the face, let us hear as little as possible in the future in this
argument about these high j^hilanthropic aims, this benelit to mankind,
and all the rest of it.

Mr. Justice Harlan. — Will you explain how the exaction of the
United States, to which you have referred, increases the price in the
Loudon market of seal-skins taken in the North Pacific by pelagic
sealers who do not have to pay this exaction?

Sir Charles Russell. — Of course it is that very consideration
which gives to the i)elagic sealer in the North Pacific his margin of
profit.

Mr. Justice Harlan. — 1 can understand how those who take them
on the islands and have to pay those exactions must ask. a certain ])rice
in London in order that they may get sufficient profits; but if the
jtelagic sealers are not subject to those exactions, can they not under-
sell those Avho carry skins from the Pribilof Islands to the London
market?

Sir Charles Kussell. — My answer is very brief. The price of the
article in the ultimate market to which it finds its way, although it may
be iu some stages influenced by the cost of production, is ultimately and
mainly influenced only by the question of supply and demand; and
therefore the pelagic sealer, although of course he could afford to sell
the skin at a lower price, will not sell it at a lower price than that
which the market commands. The diflerence between the position of
the pelagic sealer who is outside the area of United States legislation
and the man who is within it, is that the one man has to pay this tax

and the other hf^s not. That is the difference.
757 The President. — Would you go so far as to say that pelagic

sealing would be utterly inipossible if there were not this tax to
pay to the United States — that the exjiense, for instance of pelagic
sealing Mould be too great for the skins caught at sea by pelagic seal-
ing to fetch a marketable price?

Sir Charles Kussell. — I should not like to commit myself to that
statement, sir, without some consideration. I should not like to say that
pelagic sealing would entirely cease ; but certainly it would not offer the
inducements which the existing state of things does ofi'er to pelagic
sealing, for the obvious reasons that my learned friends have enlarged
upon. They have established — I think satisfactorily established — tliat
if there is no tax, the man who clubs the seal upon the island can bring
the skin of that clubbed seal to the market upon cheaper terms and
with less expenditure of labour than the man who has to pursue it iu the
open ocean; but 1 should not like to go the length of asserting that it
would necessarily put an end to it entirely. Certainly it would to a
very large extent.

Senator MoRCfAN. — Sir Charles, it is proper, 1 think to remark in
regard to the ]!olicy of the United States (iovernraent iu taxing the take
of the seals there that it is to sustain the Government. This is the
only industry upon those islands; and I think that tlie United States
is the only country in the world whose (Constitution prohibits its Gov-
ernment from levying an export duty. I think it is the only one.

Sir Charles Russell. — I take the liberty of saying, sir, that I did
not ])resume to offer any opinion in the sense of condemnation, or even
of adverse criticism upon what the United States choose to do. I was
merely dealing with the pretensions put forward that the United States
were appearing in this matter simply as champions for the interests of
the world, as friends of humanity, and were merely offering as trustees
or intermediaries this article of luxury for the benefit a^nd in the inter-
est of mankind, or of womankind.

32 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

A complaint has been made, Mr. President, which I must notice in
passing, by my learned friend Mr. Carter, and referred to also by my
friend INIr. Coudert, wliich took this form: that if Canada
critici-ni of Cana- had not intervened this arbitration need never have been
diau position held— ill othcr words thnt the United States and the
Government of the Queen would have come to terms in the matter. Is
it quite right that that theme should be introduced at all? Who liave
a better right to speak in this matter than those who are directly inter-
ested? Who?

To the United States, with its boundless resources, this is a very
small matter; to Canada, comparatively poor, a struggling but a rising
colony, it is a matter of considerable importance; and surely, as the
voice of Canada cannot be heard di])lomatically as between her and the
United States, it- was not only the right but the duty of those who rep-
resented her to put forward their views, and to put forward their views
as strongly as they could, as to the nature of the interests
758 involved and the loss that might result to Canadian enterprises
and commerce if the course indicated by the United States were
acquiesced in. I think America ought to be the last country, its repre-
sentatives the last people, to seek to limit the rights of exj)ostulation and
of action on the part of colonists. They held a very free and very correct
view of their rights in that regard while they were still colonists; and in
the time of Lord North, the Lord Salisbury of that day, they showed very
clearly, very plainly, and, as I believe, most justifiably, that they were
the best judges of what their own interests as colonists demanded.

I pass from that. A complaint has also been made about the Bi itish
Commissioners; and I think it due to those gentlemen, both of whom
I have the honour of knowing, to say a word or two about them.

TJnited States ^ think bcforc their conduct was criticised, before my
criticism oi British learned frieuds with more or less vehemence asked this
Commissionerd. Tribunal to regard them as partisans, as hostile witnesses
from whom they were at liberty to extract any admission whi(;h was in
their favour, but were at liberty to discard all that was not in their
favour — before they pronounced a judgment as to the manner in which
those gentlemen had performed their duties, I think it would have been
right in common fairness if my learned friends had referred to the man-
date under which those Commissioners acted. If they had done so, I
think they would have seen that it was impossible for them to keep out
of sight in their Eeport what they conceived to be the evils both of
management on the islands and the evils of pelagic sealing, as to which
they frankly and openly avowed their opinion. Their authority was
derived from two documents wliich aie put as the i)reface to their Eeport.
The first is the letter of Lord Salisbury, of the 2J:th June 1891. It is in
the preface to the Report, and begins with this statement:

The Queen having been graciously pleased to appoint you to be her Commissioners
for the purpose of inquiring into the conditions of seal life in Behring Sea and other
parts of the North Pacific Ocean, I transmit to you herewith Her Majesty's com-
mission, etc.

Let me in passing point out a mistake into which I venture to think
my learned friends have fallen when they refer to this in another con-
nection, which I am not now dealing with; but as it is under my eye,
and as I probably shall not need to recur to it again I wish to make the
correction in passing.

My learned friends claim this mandate, applying not only to Behring
Sea but to other parts of the North Pacific Ocean, as supporting their
argument that regulations, protection, and jurisdiction outside of Beh-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 33

ring Sea Avas contemplated in it. I wish to remind the Tribunal, that
there is in this a confusion. In the diplomatic correspondence, begin-
ning in the time of Mr. Secretary Bayard and renewed again after a
long interval, there are two lines of negotiations running on side by
side almost. One of these is the consideration of the questions which
have arisen in difference between Great Britain and the United

759 States, and which, as I shall hereafter in another connection
demonstrate, relate to Behring Sea and to Behring Sea only

But in addition to that there was a suggestion put forward by Mr.
Bayard, and assented to by the British Government, as to an inquiry
which should not be confined to Great Britain and the United States,
but which should extend to other Powers interested.

■The suggestion had its origin in the note, which, you will recollect,
sir, was addressed by Mr. Bayard to various Powers asking for their
CO operation. It was in view of that general inquiry, not restricted to
the United States and to Great Britain, that the idea of the commission
was originally started ; but side by side with that, distinct from that,
and, as Mr. Wharton says in one of the letters to which I shall here-
after refer, without prejudice to the questions in dispute between the
United States and Great Britain, this question of the larger commission
was being considered.

Lord Salisbury then proceeds:

The main object of your inquiry will be to ascertain "what international arrange-
ments, if any, are necessary between Great Britain and the United States and
Russia, or any other Power, for the purpose of preserving the fur-seal race in
Behring Sea from extermination."

You will recollect, sir, that this idea of the Commission had origi-
nated long before the Treaty was signed.
He proceeds.

Application has been made to the United States for permission for you to visit the
seal islands under their jurisdiction, and a similar request will be addressed to the
Russian Government.

I pause here to ask, what was the object or the use of their having
permission to visit the Commander Islands and the Pribilof Islands,
unless it was to note what they saw, and, so far as it was relevant, to
record, note, criticise, comment on the conditions of seal life?

Your attention should be particularly devoted to ascertaining (1) the actual facts
as regards the alleged serious diminution of seal life on the Pribilof Lslands, the
date at which the diminution began, the rate of its progress, and any previous
existence of a similar occurrence; (2) the causes of such diminution, whether and to
what extent it is attributable (a) to a migration of the seals to other rookeries, (b)
to the method of killing pursued on the islands themselves, (c) to the increase of
sealing on the high seas, and the manner in which it is pursued.

Then they are enjoined to neglect no sources of information, and to
carry on their inquiry with impartiality.

Then at a later stage — it is the only other extract with which I shall
trouble the Court, — at the top of page vii, after they have been abroad,
a further letter is directed to them on the 15th of January, 1892, only
one passage of which I intend to read.

You will observe that Lord Salisbury says, and this is before the
report is drawn out —

that it is intended that the Report of the Joint Commissioners shall embrace

760 recommendations as to all measures that should be adopted for the preser-
vation of seal life. For this purpose it will be n.i^cessary to consider what

regulations may seem advisable, whether within the jurisdictional limits of the
United States and Canada, or outside those limits. The Regulations which the
Commissioners may recommend for adoption within the respective jurisdictions of

B s, PT xin 3

34 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

the two countries Avill, of course, be mntter for the consideration of the respective
Governments, while the KegiUations alVectinjac waters outside the territorial limits
will have to be considered under clause 6 of the Arbitration Agreement.

I say that no (;aiuli(l man — and 1 think ray friends are candid men —
could read this without seeing that it was impossible for the Commis-
sioners to have avoided going into the matters which they did go into.
The consideration of pelagic sealing involved the question whether it
had necessarily incident to it all the evils whi(;h were attributed to it;
the consideration of the management of the islands involved the ques-
tions whether it was the impeccable system which its friends professed
it to be, or whether there were not to be found in this management
some explanatory contributor}'^ cause of the admitted decrease in the
numbers of the seal herd.

Mr. Carter. — I did not object to their going into those things. You
do not impute that to me; do you?

Sir Charles Kussell. — 1 rather thought my friend's argument — I
may have misconceived it — amounted to this: "1, counsel for the United
States" — and from that point of view I can quite understand my
friend's position — "begin by laying down the proposition that pelagic
sealing is a moral crime, that it is an unjustitiable wrong, that it is
brutal, something a little worse than murder, and almost as bad as
piracy." From that point of view I can quite understand his impa-
tience with a man who has anything to say even in mitigation of ])elagic
sealing; but from the point of view of the Commissioners, I venture to
say that they were perfectly within the lines of their duty, nay, that
they would not have fullllled their duty, provided they did it honestly,
if they had not presented their views for consideration. But, as a
matter of fact, if you will examine that very lengthy Eeport of the
British Commissioners, it will be found that nine-tenths of it is a record
of facts; and jierhaps the highest tribute — it ought to be almost enough
for me to say this — the highest tribute to their impartiality is to be
found in the fact that in the enforcement of their positions on the sub-
ject of regulations, and indeed in some respects upon the subject of
property, my learned friends have cited much more frequently from the
Keport of the British Commissioners than they have felt themselves
justiiied in citing from the Keport of their own Commissioners.

I am not going to malvC any attack upon the United States Commis-
sioners. 1 have no such purpose. They take the standpoint that no
killing should be permitted except upon the islands. If the British
Commissioners had followed the same line of argument, I suppose that
they would, if they had been partisans, have insisted that no killing
should take place except at sea; and they certainly would have
761 had this in their favour, as I have previously pointed out, that
whatever else may be said of pelagic sealing, it cannot be truly
convicted of ever having caused the extermination of the seal in any
part of the world where pelagic sealing merely was practised.

But in this connection, and before the Tribunal rises, and in order
that I may dismiss this topic, I would i^oint out that both my learned
friends take this lofty tone as regards pelagic sealing: yet driven by
pressure of argument going on involuntarily in their own minds, aided
a little, I will admit, by certain questions addressed to them in the course
of argument from the bench, my learned friends have been
aif aL^to^iiuiians Obliged to pursuc a course utterly and completely incon-
inconsistent with sistcut witli their profcssiou as to pelagic sealing. Why!
of unfted'"slates* Bccausc my learned friend, Mr. Carter, driven, as I say,
by stress of argument and by the natural candour of his

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 35

own mind, not completely under control, says: "I must admit that
Eussia when she discovered tlie Pribilof Islands, af-quired the rights
in the Pribilof Islands and in the fur-seal industry connected with
them, subject to the moral right of the native Indians to pursue pelagic
sealing."

Moral right to pursne pelagic sealing! Moral right to commit an
indefensible wrong ! Moral right to commit a crime against humanity I
Moral right to commit an offence a little worse than murder, and almost
as bad as piracy ! My learned friend had not appreciated the length to
which that inconsistency leads him, and the position in which it lands
him. His idea seems to have been that there were a few straggling'
Indians along this coast, existing from a pre-civilized occupation, who
used to go out in their canoes, and when impelled by hunger or the
urgent need of raiment killed fur-seals. "Quite right", said my learned
friend, Mr. Carter, "Yes; kill a fur-seal for the necessities of your
stomach and for the necessities of your back ; but if you do more than
that it is a crime. Kill for your stomach. Kill for your back" — prob-
ably he would also extend it to the backs and stomachs of the other
members of the family — "but beyond that you must not go. Barter
you dare not, you cannot. The destructive agencies of civilization and
commerce come in. Once you do that, you are beyond the pale of civ-
ilization": and international law, in some incomprehensible way, is
down upon him. He is hostis humani generis.

I need not say that is an impracticable kind of limitation to seek to
imply; but it is not only impracticable to imply it, but as a rule at all
applicable to the condition of things on this coast it is wholly foreign
to it. What is the fact? My learned friend forgets that the Hudson's
Bay Company, which owned a Charter as far back as the time of Prince
Eupert, acquired territorial dominion in the way in which sovereigns
were accustomed to grant territorial dominion in those days, over all
the territory stretching westward from and contiguous to Hudson's Bay;
that that company had been carrying on this commerce, and a great
commerce in furs of all kinds, fur seals amongst the rest, although
762 to a limited extent, by this very system of barter with these
nativesalong thatcoast. My learned friend forgets also that under
a lease from Eussia before the sale of Alaskan territory to the United
States, for a number of years the Hudson's Bay Company had a lease
of an important part of this very Alaskan territory from Eussia, and
in the same way along this very coast was securing by barter from the
natives all the jielts on that coast, including, to a limited degree I admit,
the fur-seal amongst the rest. In other words, it never was the case, so
long as there was any approach of civilized man to the neighborhood
at all, that there was a limitation of pelagic sealing to meet the mere
necessities of the hunter, or the mere need of clothing. They have
lived by it. They have bartered the products and the result of their
hunting and of their industry, and so fiir from their being scant of rai-
ment, and so far from their raiment consisting of what I may call bar-
baric material, I am told that these gentlemen, on their Sundays and
holidays, sport tall hats and linen shirts, and vestments made by more
civilized people than themselves; and amongst other things they own
schooners.

Mr. Foster. — In these last days.

Sir Charles Eussell. — Well, they are progressing in civilization,
I agree.

Mr. Foster. — And in pelagic sealing,

m

36 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Sir Charles Eussell. — I do not see that that helps my learned
friend at all. If they have done that, you see how fatal that is to the
argument of my friend, Mr. Carter; because we have got beyond the
days when the skin was necessary to be girt about the loins. We have
got beyond the days when the food of the seal was needed to satisfy
the primary wants of the natives.

The President. — Could you tell us, Sir Charles, at what time that
lease between Russia and the Hudson's Bay Company was made?

Sir Charles Russell. — Certainly, Sir. I shall be able to give you
satisfactory information about it. I have not got it at this moment.

The President. — We should be pleased if you would give us that
information.

Sir Charles Russell. — Certainly, Sir.

The President. — We have decided to sit to-morrow. Although it
is Ascension day, the earnestness of our task prevents our making a
holiday of it, and we will sit at the usual hour.

The Tribunal accordingly adjourned until Thursday, May 11, 1893,
at 11.30 o'clock A. M.

TWENTY-FIRST DAY, MAY ii™, 1893.

The President. — Sir Charles, if you please, we are ready to hear you.

Sir Charles Russell. — Mr. President, I have only an additional
word or two to say upon the subject of the attack, made courteously, I
admit, upon the British Commissioners. I understand the main point of
that attack to be that they, instead of condemning, said something to
justify and to recognize the fact of pelagic sealing. I wish now to refer
to the passage to which specific attention was called by my friend. It
is section 102 of the British Commissioners' Eeport. I will read it,
and also section 103.

In regard to interests, the sealinfij industry is naturally divided into what may,
for the sake of brevity, be termed the shore and ocean interest respectively. The
rights in either case are indisputable, and the possessors of one class of these rights
"will not willingly allow them to be curtailed or done away with for the mere jjur-
pose of enhaucing the value of the rights of their commercial rivals. Thus the only
basis of settlement which is likely to be satisfactory and permanent is that of
mutual concession, by means of reciprocal and equivalent curtailments of right, in
so far as may be necessary for the preservation of the fur-seal.

It maybe added, that the line of division between the shore and ocean interests is
not an international one, and that the question of compromise as between the two
industries cannot, in consequence, be regarded strictly from an international point
of view. If we may judge from the respective number of vessels employed, the
interest of citizens of the United States in pelagic sealing is at the present time
approaching to au equality with that of Canada, while Germany and Japan have
been or are represented in sealing at sea, and other flags may at any time appear.
The shore rights, again, are at present chiefly divided between the United States
and Russia, although Japan owns some smaller resorts of the fur-seal.

The Tribunal will see that the Commissioners are there presenting the
consideration of the shore and ocean interests, as they designate them,
not merely as a matter in contention between the United States, on the
one hand, and the subjects of Great Britain upon the other, but they
are speaking of those rights generally. They point out in the next
passage that it is not au international difference merely between Great
Britain and the United States, because the citizens of the United States
theraselves'take a large and important share in pelagic sealing; and
therefore the observations in those i)aragraphs are not confined to
Behring Sea, still less to the eastern portion of Behring Sea, in respect
of which the United States asserts special and peculiar claims. It must
not be forgotten that, treated in that broad sense, pelagic sealing is a
fact which has never been questioned, even by the United States, out-
side Behring Sea until this controversy has arisen.

Do not let it be forgotten that although the United States, qua
764 foreigners, are restricted in efforts of legislative control absolutely
to territory, — that is to say, although the effect of tlieir legislation,
as against foreigners, is confined to and does not extend beyond their
own territory, an admitted principle I need not say — yet their legislation
may apply to the whole world as regards their own nationals. In view
of this complaint against the British Commissioners that they recognized
pelagic sealing and spoke of the right of pelagic sealing we find therefore

37

38 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

this remarkable state of facts: First, that the United States has never
by any legislation pronounced pelagic sealing to be a crime or a wrong
if committed by its own nationals outside a given area; and next we have
the further extraordinary fact, — all the more extraordinary when it is
borne in mind that what the United States claimed the right to do as
regards the ships of other nations is claimed by them as a mere protective
right, — that they have never even affected to exercise that protective
right outside Ueliring Sea even against their own nationals. The Tribu-
nal is aware that the seizures have been confined to Behring Sea, and
that there has been no pretence of even any attempt to restrain, by
executive or by legislative action, pelagic sealing outside that area.

Kow I have said all that I desire to say in defence of the Commis-
sioners. So far as they are chroniclers of fact their good faith is not
questioned by my learned friend: so far as they express opinions and
make suggestions, those will be judged by this Tribunal upon examina-
tion according to their intrinsic merits. I only ])ause to point out that
they have spoken in general of the right of pelagic sealing, a right I
say which has never been questioned till this controversy has arisen.
They then in the succeeding paragraphs proceed to consider the case,
so far as that question of pelagic sealing comes into controversy as
between the United States and Great Britain.

I leave this subject, not venturing to express any opinion of my own,
which I conceive not to be quite regular; but humbly submitting to
this Tribunal that tike more the details of this liei)ort are examined the
more it will be found that these Commissioners have ai)proached the
subject with perfectly free and open minds, and have only embraced in
their consideration topics which, by the terms of the mandate under
which they were acting, they could not properly have excluded.

Now I have only one other matter to observe upon before I come to
Novelty of claim closer grips with the actual questions in this case. I
of United states, jj^ye to draw the attention ot the Tribunal to the extraor-
dinary novelty of the claim which is here asserted. This idea, if I
am able to convey it to the minds of the Tribunal, must have a very
serious effect in arresting the attention and fixing the mind of each
member of it u]ion the legal considerations, and the consequences which
will follow if the right is declared to be based on legal considerations.
I said yesterday, I repeat it to-day, that at various stages of the
world's history, according to their varying powers, nations have from
time to time advanced extravagant pretensions. They have
7G5 largely acted in assertion of those pretensions upon the consid-
eration, so it must be admitted, of their power tf> give effect to
them. It would be idle and hopeless to undertake the task of justifying
on high moral grounds, or on ininciples of abstract justice and equity,
many principles and many acts performed by many Governments at
various periods of the world's history. But those are, generally speak-
ing, pretensions of a comparatively remote period, and before the moral
force of public opinion of the world was the great controlling power
which it is to-day, when the rule of might rather than the rule of right
prevailed. Amongst the Powers who advanced those great pretensions,
prominent among them, unquestionably, were Great Britain and Spain.
They were not the only ones, for there is hardly a great Power of which
the same may not be said. Amongst those pretensions were assertions
of control, dominion, and sovereignty over a large extent of ocean,
without physical boundary, and without any external marks of delim-
itation; but even in those days of assertions, unjustifiable as I believe
them to have been in most cases — certainly in many — I find no record

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 39

of any claim to the property embraced in those extended limits over
wliich dominion and sovereijiiity were so claimed. There was undoubt-
edly in connexion with those assertions, and consequent npon them, a
claim to exclude others from the given area — a claim to exclusive right
to deal with whatever was to be found in that given area. But
that is a very different thing from an assertion of property in the par-
ticular things, the particular animals which may inhabit that area; and
I say, subject to be contradicted, but without lear of contradiction, that
this is the first time in the history of the world that a nation or an
individual has ever claimed property in a free swimming animal in the
ocean. I say, further, it follows from what I have already said, that
this is the first time that an attempt has been made to dilferentiate one
particular animal from all the other animals that dwell during a large
part of their existence in the ocean.

I do not know that my learned friends would even say they were
called upon to differentiate the case of the seal from that of other
animals. If they made the attempt so to differentiate it, I think they
would find it difficult; but to examine that field of enquiry at this
moment would be to take me from the line of argument along which I
am advancing.

Now, if I am well founded in this observation, it is a startling mat-
ter; and one is not surprised, therefore, to note some difiiculty in
finding any authoiity, ancient or modern, in support of this novel claim.

It is creditable indeed to the writers and publicists of America to-day
that I do not know one among them, and I have made some enquiry in
order to inform myself upon the subject, of reputation and authority
who has been found to justify the claim which the United States put
forward of property in the seal or in the seal-herd. We find a good
many who take the opposite view. My learned friend Mr. Phelps
indeed, is the patentee of one idea, (if an idea, by the
way, can be patented), upon which a great part of the lifted*!" tls
present argument of the United States is based — I who have opposed
766 mean that idea set forth in his letter, to which I *'" *''^™-

shall hereafter pay some attention, written in September, 1888.
My learned friend has entered the arena of public controversy in this
matter; and, in Harper's Magazine for April 1891, he has published an
article, very ingenious and able as you would expect, in which he
ami^lified the idea first propounded in this letter of September, 1888.
The article is, in fact, the argument which appears under my learned
friend's signature in the printed documents before the Tribunal. But
he was very speedily answered, and I have got here the answer written
by a gentleman whose name was previously unknown to me, — Mr.
Eobert Eayner.

Mr. Phelps. — He was unknown to us equally.

Sir Charles Kussell. — Well, I shall have a word to say about
that presently. It was published at Salem, Massachusetts. We shall
be able to give you a bttle later, I think, some account of who this
gentleman is; but I am justified in referring to him for two reasons;
first of all, because Her Majesty's Ambassador at Washington, Sir
Julian Pauncefote, in sending it describes the writer as an eminent
jurist, and Sir Julian Pauncefote is not a man who speaks in a hap-
hazard way; but secondly, I will refer to this gentleman apart wholly
from any additional weight to be derived from what his position or
what his reputation may be, for the intrinsic merits of his answer: it is
well worthy of consideration.

Mr. Justice Harlan. — Is that the same article that appears in
volume 111 of the British Case?

40 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Sir RicnARD Webster. — Ko.

Sir Charles Russell. — That is another authority, to whom I shall
refer later.

Mr. Justice Harlan. — There is an article there signed, ''Robert
Rayner ".

Sir Charles Russell. — Well, that shows that the members of the
Tribunal have been very industrious in reading this literature. I have
not noticed it myself but mj^ learned friend, who is very accurate, tells
me that it is not the same. However, having called attention to this
article, and adopting as my own argument some of the passages in it,
I will place it at the disposition of any member of the Tribunal who
desires to see it, and who will judge it upon its intrinsic merits.

Mr. Phelps. — Can you give us a copy? I have never seen it.

Sir Charles Russell. — Well, it would have been courteous of the
author to have sent you one, certainly.

General Foster. — Is it cited in your case?

Sir Charles Russell. — It is remarkable that none of your friends
have called attention to it.

Mr. Phelps. — I heard a man had written something; that is aU.

Sir Richard Webster. — I may say that, at page 345, it is a reply
to Mr. Felton.

Sir Charles Russell. — At page 12 of this article, the author puts
Mr. Phelps' argument, in the following way: — these seals, making
767 their home on American soil, belong to the proprietors and are a
part of their property, and do not lose this quality by passing
from one part of the territory to another in a regular and periodical
migration necessary to their life, even though in making it they pass
temporarily through water that is more than 3 miles from land. The
simple question presented is whether the United States Government
has a right to protect its property and the business of its people from
this wanton and barbarous destrnctiou by foreigners, which it has made
criminal by act of Congress; or whether the fact that it takes place
upon waters that are claimed to be part of the open sea affords an
immunity to the parties engaged in it, which the Government is bound
to respect. It cannot be doubted that that is fairly stating the pith of
my learned friend's contention.

The writer proceeds to answer it thus :

Mr. Phelps thinks that to the "ordinary mind" this question would not be a diffi-
cult one.

Probably not because the falseness of premises upon which the alternative is based
would escape detection by such a mind, — but any mind with a grain of logic sees at
once that Mr. Phelps is merely begging the real question; the primary one which
must be settled in his favour before his proposition can be considered and that is :
Ca7i ive or any nation have any property whatever in seals or any wild animals found
heyond the national territorial jurisdiction f Of course Mr. Phelps, a past-master in law,
knows that in law there is no property right in wild animals whether fish, mammal,
or bird outside of territorial limits; that anybody and everybody is free to appro-
priate or kill them so long as in doing this no right of territory is violated. To ena-
ble us to exercise lawfullj- any right of proprietorship in wild animals like seals we
must confine them within onr territorial 'jurisdiction. To allow them to leave our
territory, to escape into the "high seas", is to deliver them up to the tender mercies
of maniiind in general, and to pretend to prcA^ent non-Americans from doing what
they like with seals found in the "high seas" is to fly in the face of all international
law. and consequently to make ourselves ridiculous.

He then proceeds to argue in the remaining passages closely, with
reference to authority, the legal proposition which is there indicated.
Nor is this the only gentleman. Dr. Stephen Berrien Stanton of the
New York Bar, has written a book, which is published in New York
by Albert B. King, Publisher.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 41

Mr. Phelps. — Can you give us a copy of that?

Sir Charles Eussell. — It is very distressing that I should be
obliged to furnish this American literature to my friends, but I will
with the greatest pleasure.

General Foster. — Is that cited in your case?

Sir Charles Russell. — I do not know, and, with great deference
to Mr. Foster, I do not care.

General Foster. — We might have searched for it if you had cited it.

Sir Charles Russell. — The first Edition was published in 1891.
The second was published in 1892. This gentleman examines the ques-
tion, and examines it from the only point of view in which up to the
time of this litigation, if I may so call it, it was presented on the part of
the executive authority of the United States: namely, as a question
whether or not the United States had by right ot sovereignty a
768 right to apply its municipal legislation to the eastern part of Beh-
ring Sea, and to base that right upon a derivative title from
Russia. And when he comes to examine the question of those exclu-
sive rights he arrives at the conclusion, which the Tribunal I think will
not be surprised at, that it is impossible in view of the attitude of the
United States itself in 1824, and in view of the attitude of Russia
towards Great Britain as evidenced by the treaty of 1825, to assert, or
rather, I would say, to substantiate or to supjiort, any claim to exclusive
jurisdiction in any part of the Behring Sea. Then he goes on to argue
the question from another standpoint. He deals with the i)lea which
my friend Mr. Phelps puts forward, and he argues strongly in favor of
insisting on regulations dealing with this particular interest. I do not
quarrel with his argument upon that point. I am not using it, nor is
it ad rem to the i)oint I am now upon — but I wish to state the full efl'ect
of it.

Mr. Justice Harlan. — Does he not recommend prohibition with
regard to X)elagic sealing?

Sir Charles Russell. — I do not think he does. I do not think he
says so in terms so far as I recollect.

Mr. Justice Harlan. — That is my recollection. I have a copy of the
book and I think he does.

Sir Charles Russell. — I will not be certain. I think what he does
say, undoubtedly, is, that whatever is necessary to protect the fur-seals
should be done, and very likely the inclination of his opinion is in the
direction indicated by the learned Arbitrator. Of that I am not at all
sure, but the point he makes is, I think, that as a matter of legal right
what should be done cannot be done upon the sole authority of one
nation. But, as I say, I am not citing it in that connection for the
moment.

Next, there is the article in a magazine called the "Forum" by Pro-
fessor James Angell : published in November, 1889.

General Foster. — He is an American citizen whose name we have
heard before. He is a gentleman of eminence, and President of the
University of Michigan.

Sir Charles Russell. — I am very glad to have had that high tes-
timony in his favor.

General Foster. — But he is not a lawyer.

Mr. Justice Harlan. — He is the same gentleman who was on the
Commission relating to the Fisheries on the Newfoundland coast.

42 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Sir Charles Kussell. — In the beginnin fj of liis article, wliicli is on
page 02 of the first volume of the Appendix to the Case of Great
Britain, he says:

Alaska ia now furnishing us with two international qnestions of some interest and
consequence. The lirst concerns our riglit (freely exercised of late under orders of
our Treasury Deiiartment) to seize foreign vessels engaged in catching fur-bearing
seals in BelJiring Sea, many miles away from land, and to send them into port for
condemnation and forfeiture.

Mr. Phelps. — Will you kindly give the date of the article.
769 Sir Charles Eussell. — November 1889. Then he says:

The second concerns the determination of the boundary between Alaska and British
America.

The President and the other members of the Tribunal will appreciate
"what that means. You recollect. Sir, that the southern portion of what
is now called "Alaska" merely consists of a strip, or lisiere, of the land
along the coast, running in front of the British territory. The question
of the actual boundary was left more or less in doubt according to the
somewhat vague terms of the Treaty of 1825. That is not at all in
question in this case, and I merely mention it to explain the second
question that he here refers to. Then Mr. Angell x>roceeds in this
article to show what will be found to have a much wider importance
than at first sight may appear, that so far back as 1881, Mr. French,
the acting Secretary of the Treasury, writing on the 12th March in that
year says:

All the waters within that boundary to the "Western end of the Aleutian Archipel-
ago and chain of islands are considered as comprised within tlie waters of Alaska
Territory. All the penalties prescribed bylaw agaiust the killing of fur- bearing
animals would therefore attach against any violation of law within the limits before
described.

That is territorial jurisdiction, carrying with it the right of legislation
as for territory. Then, after stating the legislation upon the subject,
he proceeds to say, on page 93 :

The question is whether for this laudable purpose of preserving the fur-bearing
seals from extinction, and maintaining our undisputed right to control the taking
of these animals on the Pribilof Islands, we may rightfully board, search, and seize
foreign vessels in BehriuGC Sea more than 3 miles away from land.

The equal right of all nations to use the high seas for any lawful purpose of
commerce, navigation, fishing, or hunting is now so universally recognized; the
United States have been so constantly the strong defender of tliis right; we have
so vigorously opposed all attempts of Great Britain to search our vessels in time of
peace ; we have claimed so vehemently the right of fishing in Canadian waters sharply
up to 3-mile line from shore, that obviously we must show some very plain and
cogent reasons to justify our course in Behring Sea. What reasons have been or can
be given f

Our Government has given, so far as is known, no other formal statement than
that of Acting Secretary French (above quoted in part) to inform either our citizens
or foreign Powers of the precise grounds on which the seizure of British sealers is to
be justified. No defence of our action by Secretary Bayard, nor up to the time of
this writing, by Secretary Blaine, or Secretary Windom, has been published.

But in our own newspapers editorial writers or contributors have suggested lines
of defence of our action. The ground that they have generally taken as the strongest
is that Russia exercised exclusive jurisdiction in Behring Sea, and that by the cession
of Alaska she transferred to us the right to exercise the same jurisdiction.

Then he proceeds to discuss that question, and he arrives at the
conclusion that the Treaties will not support the claim to any exclusive,
jurisdiction in Behring Sea. He further cites a passage from Goveruoi
Boutwell, the Secretary of the Treasury in 1872 in which he said :

I do not see that the United States would have the jurisdiction or power to drive
off parties going up there for that purpose, unless they made such an attempt within
t» marine league of the shore.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 43

770 I ought to say iu passing that my friends say that Mr. Bout-
well's letter had reference to sonietliing outside Behring Sea,

outside the Aleutians, and therefore that it has not the significance
which otherwise might have been attached to it. It is not very
important to consider that one way or the other. Then on page 95 he
proceeds to consider an argument as regards the seal fishing on the
Asiatic coast:

No doubt, the condition of the Siberians on that coast wonld present a strong case
for generous action on the part of foreigners in abstaining from interference with
their means of gaining a livelihood. By couimou consent, out of regard to the hard-
ships of their life, fisLermen are not disturbed in their j)ur8uit8 in time of war. But
can the Russian argument, even if it has validity for the Siberians, be used by us?
We have without any scruple, for half a century, taken whales in the seas adjacent
to them. We can hardly assert with much plausibility that the members of the
Alaska Commercial Company, which has the monopoly of seal catching in and near
the Pribilof Islands, can plead in forma pauperis for protection on grounds of charity.

It may be argued that since most of the seals which are taken by the British breed
on our soil in the Pribilof Islands, we have an exclusive claim to them in the sea, or
at any rate a right to protect them there from extinction. But some of them breed
on Copijer Island and Behring Island, both ofAvhich belong to Russia. How is it
possible to maintain any claim to ownership in seals on the high seas under any
principle of law applicable to wild animals? We can acquire no property rights in
animals ferce naiurce from their birth on our soil, except for the time that we hold
them in our possession. A claim by Canada to the wild ducks hatched in her terri-
tory, after the birds have passed her boundary, would seem to be just as valid as ours
to seals iu the open sea.

I recall only one case which seems to furnish any analogy for the claim that we
may regulate seal fishing in the open waters of Behring Sea. The British Govern-
ment does regulate and control the pearl fisheries in the open sea irom 8 to 20 miles
west of the northern end of Ceylon. But it is to be presumed that this is done under
sufi'erance of other Powers; because they have had no interest in interfering with
the pursuit of the pearl divers. Should they claim the right to seek peails in those
waters, it is not easy to see how Great Britain could oppose any argument, except
that of long acquiescence by them, in her exclusive possession of the pearl grounds;
and it is questionable whether that argument would have much weight.

It may be said that if we have no right to exclude other nations from taking seals
in the open waters of Behring Sea, and if the law and the Treasurj' Regulatious as
they now stand can be enforced against our own citizens in those same open waters,
we are clearly discriminating against our own countrymen. The foreigners may
kill seals at times and in places forbidden to us. This is true. It is one of the
anomalies and embarrassments of the present situation.

On the whole, we find no good ground on which we can claim as a right the
exclusion of foreigners from the open waters of Behring Sea for the purpose of
protecting the seals.

Then having discussed the question as a matter of right, he proceeds
to suggest that it is a matter in which other Powers, Great Britain,
Eussia, Japan and so on, are interested, and that they should and
ought to agree to measures for the preservation of the species: this of
course is the position we have adopted.

Lastly, I will cite another American publicist, who is editor of a
well-known book, which, I, myself, have frequent occasion to use pro-
fessionally, and which has now reached the 0th. edition. It is an
introduction to the study of International law by Theodore

771 Dwight Woolsey — Woolsey's International Law. The edition
which is before me is by his son, and certainly he does not mince

matters. I need not say that patriotism would suggest to him, if his
conscience as a lawyer permitted him —

Mr. Phelps. — He is not a lawyer.

Sir Charles Russell. — Well, if his conscience as a jurist permitted
him, to say what he could ; but after dealing in section 59 with the broad
principle which lies at the root of this matter — that the high sea is free
and open to all nations — that it cannot be the pioperty or subject to
the Empire of a particular State — that the things in it are free to all to

44 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

take them, and so forth, with which I am not now troubling you — the
editor adds this paragraph :

The recent controversy between Great Britain and the United States, involving
the right of British subjects to catch seals in North Pacific waters, appears to be an
attempted revival oltliese old claims to jurisdiction over broad stretches of sea. That
an international agreement establishing a rational close season for the fur seal is
Avise and necessary, no one will dis])ute. But to prevent foreigners from sealing on
the high sea, or within the Kamschatkan sea (which is not even enclosed by Amer-
ican territory, its west and north west shores being Russian) is as unwarranted as if
England should warn fishermen of other nationalities oft" the Newfoundland banks.

I say it is creditable to the j)ublicists of America that they should
take this true juridical and legal view of the contention put forward by
the United States.

Mr. Justice Harlan. — Sir Charles, the Marquis Veuosta asks me
whether that passage was in the origiual book of "Woolsey, or is it a
passage added by his son?

Sir Charles Eussell. — I said that it was added by the present
editor. The original author is dead.

TLie President. — What is the date of the edition?

Sir Charles Russell. — 1892. It is the Gth edition.

Now, so far as I know, (I do not, of course, venture to speak on the
matter with certainty) only one publication has appeared — I am not
talking of newspaper articles and things of that kind, I aui talking of
persons who write under their own names with some sense of responsi-
bility and with some knowledge of the legal considerations which affect
the matter — the only publication which so far has appeared is one the
publication of which in its present form, I am told, we owe to the sug-
gestion of one of the Arbitrators, Judge Harlan — I do not know whether
that is correct or not. It is an address delivered to the students by
Mr. James C. Welling of the Columbian University, professor of the
International Law School of the University-; and this book, like the
others, is at the disposition of any member of the Tribunal who desires
to see it.

I will only say, summarising the effect of it, that his whole argument
as I have appreciated it, depends upon the correctness of an analogy
which he draws between the case of bees and seals; and depends fur-
ther upon whether he has or has not rightly appreciated certain
772 well known authorities upon the subject of bees; but I conceive
(I am not to be deflected from my line of argument to justify
myself at this moment) that he is mistaken in both respects. But his
argument, of course, is entitled to be treated with respect, and I am
entitled to combat his view and the analogy upon which he bases that
view when I come to the question of property. At present the Tribunal
understands that I am calling attention to the fact that there is nobody
of respectable authority that I know of, legal or juridical, to support
even at this moment and even in the heat of this controversy, the case
which is put forward upon the part of the United States.

Now I have ended the discussion of these matters, which are more or
less of a general character, and I end it with this one observation: My
aim has been to reduce this question, so far as it is a matter of money
interest, to something like what I con(;eive to be its just proportions.

Mr. Justice Harlan. — Before you leave that, what is your statement
about being indebted to me for that address?

Sir Charles Russell. — I do not know how it has reached me, but
the statement was that the author had shewn you the paper and that
you thought it was worth publication.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 45

Mr. Justice Harlan. — I never saw a line of the paper before its pub-
lication. I remember to have heard President Welliii<? talk on the
general subject, and suggested in reply to an inquiry by him as to the
propriety of his expressing his opinions, that if he had matured views
he could properly give them to the public in some form.

Sir Charles Russell. — I have no doubt that is the foundation for
it. The only effect on my mind was that I read that with more care
and discrimination, as you have seen.

Mr. Justice Harlan. — He, like President Woolsey and President
Angel, are Presidents of Universities in America. Although none of
them are trained lawyers, they are gentlemen of wide reading, and stand
very high.

Sir Charles Russell. — If I were to excise from the voluminous
excerpts in the printed argument of my friends all who are not trained
lawyers, the residuum would be very small.

Mr. Justice Harlan. — I did not mean to suggest that you ought to
do that, but simply to inform you who they were.

Sir Charles Kussell. — Quite so, Sir. I was about to say that my
object has been to reduce this question, so far as it is a matter of money
interest, to something like its just and true proportions, and to dwell
upon the novelty of the claim. And now my last word in this connec-
tion is to point out in a sentence, emphasizing what my friend Mr. Car-
ter so well said, how much more important the mode of determining
this question is than the question itself. My last word in this connec-
tion is to point out the grave and far-reaching consequences of a deci-
sion which would afiQrni a property right in this dispute. My friends
have said — I do not quarrel with it; they are probably right — that a
mere ordinary right of defence of property such as the law recog-
773 nizes, and such as I shall hereafter explain, would be inadequate
for the i)urposes of the protection of the fur-seal in the Behring
Sea. I am willing to accept, without argument, their statement for
this purpose as correct. They claim that the mere right of defence of
possession would be inadequate. They say to give them the effective
right of protection, they must have a right of search; they must have
a right of seizure; they must have a right of confiscation; and I need
not point out that such rights must have not merely a direct effect in
interfering with the rights of other nations on the high seas, but must
have a direct and serious effect in harassing and interfering with the
commerce of the world, which has nothing to do with the question of
pelagic sealing at all.

I say, therefore, that this question does involve gravely, does involve
directly, the freedom of the seas and the equality of all nations, be they
great or small, upon the seas.

Now, Mr. President, I proceed to state the order of the argument
which I am about to present. I shall, first, consider the
facts and circumstances of the seizures of British vessels men^t'^s^uorth!'^^""
under the executive authority of the United States Gov-
ernment; for it must not be forgotten, what I took the liberty a good
many days ago now of reminding the Tribunal of that the Government
of the Queen here is a party complaining that the property of the sub-
jects of Great Britain has been, without legal warrant, seized and con-
fiscated, and some of the crews of those vessels fined and imprisoned,
also without legal warrant. It is part of your duty to find the facts in
relation to those seizures, though it is not part of your duty to assess
the claims for damages in respect to them, I shall then pass to the
consideration of the first four quest ions, grouping them together, in

46 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

article VI of the Treaty, the question which we have called the ques-
tion of derivative right under llussia. I shall then consider question
5, to which tlie great stress of the argument of my learned friend has
been directed; and, following upon that examination I shall, asking for
the patience of this Tribunal, examine the cases that have been cited
and tlie propositions that have been based on those cases. And, tiually,
I shall ex.araine the analogies sought to be drawn from the legislation
of otlier Nations as afibrding some foundation for the contentions
advanced on the part of my learned friend Mr. Carter; especially I
shall examine the argument that in the analogy of that legislation of
other civilised countries is to be found some warrant for the suggestion
that international law sanctions such claims as are here advanced.

THE SEIZURES OF THE BRITISH VESSELS.

I begin, at once, with the question of the seizures.

The President. — You spoke yesterday. Sir Charles, of introducing

into the general plan of your argument the two difit'erent questions of

damages: those with reference to the seizure, and those under the

774 modus vivcndi. At which moment of j^our argument do you

intend to bring those questions of damages in?

Sir Charles Eussell. — At the conclusion of all questions of prin-
ciple.

The President. — In the first part of your argument, before you enter
upon the liegulations?

Sir Charles Russell. — Certainly.

I was about to draw, as it is right I should, the attention of the Tri-
bunal to what its function is under Article VIII. Under Article VIII,
it is provided that

The High Contracting Parties having found themselves nnahle to agree upon a ref-
erence which shall include the qnestion of the liability of each for the injuries alleged
to have been sustained by the other, or by its citizens, in connection with the claims
presented and urged by it ; and, being solicitous that this subordinate question should
not interrupt or longer delay the siibniission and determination of the main ques-
tions, do agree that either may submit to the Arbitrators any question of fact involved
in said claims, and ask for a finding thereon, the question of the liability of either
Government upon the facts found to be the subject of further negotiation.

I should like the attention of my learned fi lends at this point for one
moment. We, I think, agree (it is so stated, I think, in both Cases)
that that does not involve the calling upon this Tribunal to deal with
aijy question of amount?

Mr. Phelps. — It does not.

Sir Charles Russell. — ISTo. We agree, therefore, that this Tri-
bunal will not be troubled to assess, as the technical phrase is, the
amount of damages. What the Tribunal will be asked to do is to find
any question of fact involved in the said claim; and, so
biutj^^iu Art.vin. f^i' ^s wc are concerned, the simple facts that we request
the Tribunal to find will be these. Two of them are undis-
puted; — first, the fact of the seizures; next, the fact that those seizures
were made with the authority of the Executive of the United States, —
neither of those facts is in dispute; and the only remaining one, there-
fore, which we shall ask the Tribunal to find is, that there was no war-
rant in law, in the circumstances of the case, for the seizure and
condemnation of those ships, or the imprisonment of their crews.

Mr. Phelps. — We should not regard that as a fact, as it seems to be
a proposition of law.

Sir Charles Russell. — But it must be found as a fact, though I
agree it involves a proposition of law.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 47

Senator Morgan. — It fixes liability, does it not?

Mr. Phelps. — Of course it does.

Senator Morgan. — I understand the Treaty does not permit us to
fix liability upon either Government, and that would fix liability, would
it not?

Sir Charles Eussell. — Not necessarily; I agree it would go a very
long way towards doing so.

775 The President. — I think. Sir Charles, you must make your
distinction a little clearer.

Senator Morgan. — It seems to me it goes the whole length.

The President. — You must make it clear for us that it is not
liability.

Sir Charles Eussell. — Well, you are not to say, " We thereupon
award and adjudge that the United States shall pay so much damages".
That would be the affirmation of liability; but you are asked to find the
facts as to whether the seizures occurred, as to whether they were done
with the authority of the United States, as to whether there was
any justification in law for them. I do not see how you can escape it;
and I think the passage which I am about to read shows that the view
of my learned friends was the same. You will see at page 217 of the
printed Argument of the United States, a sentence which makes the
matter clear.

The claims suLmitted on the part of Greut Britain are for damages sustained by
certain of its subjects by reason of the seizure by the United States of certain ves-
sels alleged to belong to such subjects, and waruing certain British vessels engaged
in sealing not to enter Beriug Sea, and notifying certain other Bi-itish vessels engaged
in the capture of seals in Beriug Sea to leave said sea, whereby it is insisted that the
owners of such vessels sustained losses and damages, as set forth in the respective
claims.

Now I call special attention to these next paragraphs:

The right and authority of the United States to protect the seal herd, which has
its home in the Pribilof Islands, and in the exercise of such right to make reprisal
of seal-skins wrongfully taken, and to seize, and, if necessary, forfeit the vessels and
other property employed in such unlawful and destructive pursuit, is a necessary
incideut to the right asserted by the United States to an exclusive property interest
in said seals and the industry established at the sealeries.

We, however, preface what we have to submit on this feature of the case by say-
ing that, if it shall be held by this tribunal that these seizures and interferences
with British vessels were wrong and unjustifiable under the laws and principles
applicable thereto, then it would not be becoming in our nation to contest those
claims, so far as they are just and within the fair amount of the damages actually
sustained by British subjects.

I care not in what form it is put; but surely it is a question of fact,
aye or no, were the Canadian vessels exercising a right when they were
seized ; aye or no, was there, in point of fact or of law, any justification
for those seizures. I care not whether the result of those findings is or is
not necessary to land the United States in liability. If it be so, so much
the simpler the question of the settlement of those claims ; but it could
not have been intended, it would have been an absurdity to suggest that
this Tribunal was merely to find the fact that the vessels were seized,
and merely to find the fact, which no one has ever disputed, that those
seizures took place under the executive authority of the United States.
It would be idle to suggest that this Tribunal was called upon merely
to determine those facts about which there is no controversy; and it
will be observed that the language to which I have called atten-

776 tion in Article VIII appears to give a right to either of these
parties, the United States on the one hand Great Britain on the

other, to call upon the Tribunal to find any questions of fact involved
iu the said claims,

48 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I cannot see any question of fact more directly involved in this claim
than the question what tbese Canadian vessels were engaged in when
they were seized, or when they were interfered with — whether they
were exercising a right, whether they were committing a wrong, whether
the United States had the warrant of law, or whether it was a lawless
interference and lawless arrest.

Mr, Phelps. — Perhaps 1 may suggest to my learned friend one very
serious question of fact as it seems to me, as to whether some of these
vessels were the property of British subjects at all.

Sir Charles Kussell. — I am exceedingly obliged to my learned
friend for that illustration. It would be a question of fact which might
or might not be submitted to this Tribunal; we do not seek to disturb
or embarrass the Tribunal; if there be any real dispute of that kind,
we are quite willing- to leave it entirely an open question.

The President. — That question will perhaps be rather raised by you
Mr. Phelps than by the other side.

Mr. Phelps. — It has been raised in our argument. We do not care
to discuss it if the Counsel on the other side do not. It is a fact they
may or may not ask the Tribunal to decide. If they do, we dispute it.
If they do not we have nothing to say.

Sir Charles Russell. — I am obliged to my learned friend for his
interposition, because I think it throws some light upon the matter.
The finding that the vessels, the names of which appear in the case,
have been seized and seized while exercising a legal right would not
conclude the liability of the United States to pay if, for instance, it
turned out that some of those vessels were owned by citizens of the
United States and subject to the laws of the United States.

Lord Hannen. — Would not that be one of the facts which we might
be properly called upon to determine?

Sir Charles Eussell. — Undoubtedly, my Lord; I have said so; it
might be; but it is a fact that as far as I know at present — I have not
referred to Mr. Tupper, the Canadian Agent, to have his view in the
matter — but so far I have no reason to suppose that that is a matter
that we should care to press this Tribunal to embarrass itself with at
all; but I shall answer that question at a later stage. For the present,
I am content to say that the questions of fact which I submit the Tri-
bunal ought to find are these — the fact of the seizures, which is not dis-
puted: the fact that those seizures were made with the authority of the
United States Government: and the fact that the vessels so seized were
exercising a right upon the high seas: and finally, the fact, in any
form in which it is desired to be couched — I care not what — that there
was no warrant in law on the part of the United States for those
seizures. I beg to say that the view which I am now presenting
777 is the view presented in the passage from the United States Argu-
ment to which I have already drawn your attention, and which
is also in the United States Counter Case.

Lord Hannen. — Does not your contention amount to this, that the
question of the liability referred to in the 8th Article means the ques-
tion of the amount of liability'?

Sir Charles Russell.— Well, that is one view, but I confess I think
the word is more general. I confess the word "liability" is not nar-
rowed, I must say, to the question of amount merely. I think the word
"liability" has a wider significance.

Lord Hannen. — Would not your contention limit it to that sense f
You say we are confined to whether it was done wrongfully.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 49

Sir Charles E-ussell. — Certaiuly, the fact you are required to find
must carry with it the coiKsequeuce that the seizures were wrou^ful.

Mr. Justice Harlan. — Is it the fact that they did or did not do it in
violation of the law? — is that a fact?

Sir Charles Eussell. — I thiuk it is.

The President. — Well, I think we will let you argue your point;
but this Tribuual must reserve for further consideration whether they
will or not take it as a fact.

Sir Charles Eussell. — I will also respectfully reserve to myself
the right of supportiug my views, because, knowing what was to be
found in the Counter-Case of the United States, I really did not antici-
pate that there would be auy difference between us on this j)oint. It is
the first time that it has been suggested to me.

Now I want to call attention to page 133 of the Counter-Case in this
connection. I merely refer to it to show that they discuss the questions
referred to by my learned friend, Mr. Phelps, suggesting that some of
these vessels are not British-owned vessels, and they take the point
which my learjied friend Mr. Coudert reiterated the other day, that no
damages can be awarded for prospective piotits, on the ground that
they were too remote. My learned friends made the argument under a
misapiirehension, I think, of the Geneva decision ; and then upon page
134 they insist that the damages claimed are excessive; and then comes
the final passage, to which I especially desire to call attention.

The United States do uot deem it Becesaary to state in detail wherein the valua-
tions and damages claimed are excessive and exaggerated, or submit proofs in relation
thereto, further than by the analysis of said claims found in the Ajipendix to this
their Counter Case, at page 33!:), for the reason —

Now this is their reason. —

That the "questions of fact involved in the claim" of either of the parties to the
Treaty against the other, to be submitted to the Tribunal of Arbitration under the
provisions of Article VIII, should, as this Article is understood by the United States,
have relation only to such facts as tend to lix the liability of one party to the other,
and do not include facts which relate to the amounts of such claims.

Mr. Pheli'S. — Certaiuly.

Sir Charles Eussell. — Showing that the United States took
778 the view that Lord Hannen has been good enough to exj^ress as
to what was the limitation of this matter.

The President. — If it is more convenient for you to proceed with
your argument, it is understood that the Tribuual reserves for further
consideration the question which has been mootetU

Lord Hannen. — If I may put this question to you, Mr. Phelps; it
would assist my understanding, at least, of the point in diffeience
between you, if you could with proi>riety answer this question: Do you
consider that we finding the facts, tlie United States would in the future
negotiations whicli would take place as to liability be bound by our
decision of i)rinciple upon the first four questions, or would it still be
open to them to say, upon the facts found, we still maintaiu that we are
not liable to pay damages lor any seizure?

Mr. Phelps. — That is a question, my Lord, that I am not prepared
at this moment, to express an opinion upon.

Lord Hannen. — Very well, x)erhaps you will consider it.

Mr. Phelps. — I may say that our view of article VIII has been sim-
ply this: that any facts which either party requested the Tribunal to
find and establish by proof, bearing upon the question of claim for these
seizures, would be passed upon and found as might be right by the
Tribunal; and thus the whole subject of the liability of the Government

B S, PT XIII 4

50 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C, M. P.

of the United States or of Great Biitain to pay any amonnt, -vrliether
found by the Tribnnal or not, in respect of those facts, would be left an
open question. The material facts as to the seizure of these vessels
would seem to me to be these: What vessels were seized? Did they
belong- to British subjects? Where were they seized? Was any claim
made as a ground ibr seizure, except that they were engaged in the
taking- of seals? Such facts as that, from which, when found, might be
deduced well enough the answer to the question whether upon those
facts the United States ought to pay or not.

Lord Hannen. — Well, that is the whole question over again, and all
this Arbitration would go for nothing-.

Mr. Phelps. — Kot necessarily.

Mr. Justice Harlan. — Suppose this Tribunal should decide under
the i)oints in Article VI, tliat the United States had or had not any
right of property in the seals, and had or had not a right to protect them
on the high seas, you would consider the United States bound by that
ruling- when the two nations, if the occasion arose, got together in
negotiations on the question of damages.

Mr. Phelps. — I should, Sir, if you put that question to me at this
time.

Mr. Justice Harlan. — That is what I understand Lord Hanneu's
question to embrace.

Mr. Phelps. — If that is the purport of the enquiry, Yes. I do not
suppose for instance that if this Tribunal should decide that the United
States had no right of property, and no right of yjrotection, and that
under the circumstances vessels were seized belonging to British
779 subjects, I do not understand that it would be open to the United
States after that to insist that there was a right of seizure, and
a right of protection, in the face of the decision of the Tribunal.

Lord Hannen. — I am bound to say that, assuming that that may be
taken as authoritative, it would meet my question.

The President. — And in that case the liability spoken of in Article
VIII would merely refer to the question of indemnity, and theu there
would be no disagreement.

Mr. Phelps. — That question, as it seems to me, which was put by
his Lordship refers rather to the inference that the United States Gov-
ernment would feel itself bound to draw in respect of the seizure from
the decision of the points of law in respect to the other branches of the
case.

Lord Hannen. — Yes. The object of my enquiry would be completely
met if it can be taken as authoritative. We will assume for a moment
that the finding would be no property. If that can be tacked on to
the finding of tacts as to the seizure, then that would meet that which
Sir Charles has been asking for, a finding thaf it was an illegal seizure;
and, if so, I presume that would satisfy his requirement, as undoubtedly
it would meet the view which I intended to indicate in the question I
jjut to you.

Mr. Phelps. — Your Lordship will see that if you ask the opinion of
the Counsel of the United States what would be the just and right
course for the United States Government to pursue in the future nego-
tiations if such were the finding of the Tribunal, our answer might be
one way. If you ask us if we are authorised here to bind the United
States to any conclusion in future negotiations, we must answer that we
have no such authority and have no right to make a declaration that
would bind them.

Lord Hannen. — That is why I put in the word " authoritative".

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 51

Mr. Phelps. — We are not authorized to make any such statement, or
to give any such assurance. I am free to say, and I believe that to be
the view of my associates, that after a finding by the Tribunal upon the
five questions involved, it would not seem to me becoming on the part
of the United States, who have agreed to abide by this award, to contra-
dict the award when the question of its propriety arose upon this subor-
dinate matter of seizure; but it nnist be a question for those who control
the diplomatic relations of our Government, and is not a question that
we are authorised in reference to.

The President. — That is all very well Mr. Phelps; but we have here
the United States before us in the persons of their Agent and Counsel,
and we have the right to ask them what is the authoritative and official
interpretation put by the United States upon one word used in an article
of a Treaty which limits our ])Owers. We have the right to ask you
what is the interpretation put by the United States upon those words

"question of liability"?
780 Mr. Phelps. — That question the Tribunal is quite entitled to

I)ut, and that question we are quite ready to answer. We have
endeavoured to answer it; — that in the discussion of questions under
article VIII the Tribunal is invested with no authority whatever except
to find the facts, leaving the legal consequences of those facts, so far as
these seizures are concerned for iuture consideration.

Then if the Tribunal goes further, and asks me what that future con-
sideration on the paitof the United States Government would be, I
reply in the first place that I have no doubt that it ought to regard the
decision of the Tribunal as conclusive upon the questions arising under
this Treaty, but that I am not authorized to go beyond this arbitration
and the power with which the Tribunal is invested under this article, and
give an authoritative assurance as to what those in charge of the United
States Government when that time comes may do. The distinction may
be a refined one, but it is one that we feel compelled to make.

The President. — We understand that very well. We merely wanted
to know what was your interpretation of these words " questions of
liability". We know the interpretation of the English Government.

Mr. Phelps. — Our interpretation of that is, as I have said, that article
VIII simply provides for the finding of such facts — material facts of
course — as either party may desire to have found and may ofl'er suffi-
cient evidence in support of. What consequences shall come from that
finding is a point that it seems to us is not submitted to this Tribunal.
It will be for the alter consideration of the Government. But I should
not seriously doubt, when you ask my opinion, when those points come
to be considered hereafter by the United States Government, that the
decision of the Tribunal upon the first five questions will be respected
there as elsewhere.

The President. — I think there is no objection to Sir Charles argu-
ing the question of fact, as he understands it. The court will consider
whether it is one of those facts which we have to decide upon.

Mr. Phelps. — General Foster has put in my hands a paragraph in one
of the letters of Sir Julian Pauncefote to Mr. Wharton in the course of
the negotiation, dated August 26, 1891, while they were discussing this
eighth clause. It is on page 330 of the first volume of the Appendix to
the United States Case.

He says :

My Government arennable to acrept the form of clanso proposed by the President
becanse it appears to them, taken in connection with your note of the 23d ultimo, to
imply an admission on theix part of a doctrine respecting the liability of Govern-

52 ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P.

ments for the acts of their nationals or other persons sailing under their flag on
the high seas which is not warrauted by international law and to which they cannot
subscribe.

I need hardly say that the discussion of such a point (which, after all, may never
arise) must prolong the negotiations indefinitely. Moreover, it seems premature to
enter into such a discussion before the other questions to be submitted to the Arbitra-
tors have been determined and all the facts on which any liability can arise have been
ascertained.

781 I will read a little tiirther down, with the permission of the
Court. Sir Julian's suggestiou of the form of this article shows

what was in the mind of the British Government. On the same page
and further down in the same letter he proposes this clause:

Either of the two Governments may submit to the Arbitrators any question of fact
which it may wish to put before them in reference to the claims for compensation
which it believes itself or its nationals to possess against the other.

The question whether or not, and to what extent, those facts, as determined by the
Arbitrators and taken in connection with their decision upon the other questions sub-
mitted to them, render such claims valid according to the priuciples of international
law shall be a matter of subsequent negotiations, and may, if the two powers agree,
be referred, in whole or in part, to the Arbitrators.

Sir Juliaii says : " I do not propose the above wordiug as definite; it should be open
to amendment on either side; but if after submitting ", etc.

The remainder is not material.

That shows that the idea of the British Government as expressed by
Sir Julian Pauncefote then was precisely what I have endeavoured to
state as our idea now, and I think there is nothing in the correspond-
ence that will show that that idea was changed or that the language
of the Treaty was modified so as to prevent any different meaning from
what was there expressed. That is to say, that so far as the seizures
are concerned the arbitrators simply find the facts, leaving the whole
subject then for future negotiation; and therefore, charged as we are,
authorized as we are, only with the representation of the Government
before this Tribunal upon the points submitted by the Treaty, we are
not authorized without communicating with our Government to go any
further than that by giving an assurance about further negotiations.
At the same time, as I have said, I should not hesitate to express my
opinion as to what the result of the finding would probably be on the
action of those who represent our Government.

Lord Hannen. — You will observe, Mr. Phelps, that Sir Julian Paunce-
fote uses an expression the equivalent of one which I have used. He
says: "Findings of fact are to be taken in connection with the determi-
nation of the Tribunal upon questions of principle ". I used the expres-
sion : If they were to be one tacked on to the other that would be suflB-
cient, supposing it were an authoritative statement.

Mr. Phelps. — That exi)ression, however, your Lordship, is just the
one which was left out of that article when it was put into the treaty.

Senator Morgan. — Sir Charles, before you proceed I would like to
say this : The President of the United States can pledge his Government
diplomatically to entertain or enter into a future negotiation. I have no
doubt of that ; but neither the President nor any of his agents can pledge
the Government to any particular result of a future negotiation, for the
reason that another body has to come in and, by a two-thirds vote,
ratify and confirm any negotiation before it can become any part of
the supreme law. Therefore the counsel here, though they might be
expressly authorized by the President to make pledges to this

782 Tribunal, could not possibly commit the American Government,
under its Constitution, by agreeing that a pledge should be exe-
cuted in the form which they might state. It is a peculiarity of our
Government that ijrevents that result.

ORAL ARGUIMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 53

Sir CiiAELES Russell. — I am quite aware that according to the Con-
stitution of the United States the Executive Government could not enter
into a Treaty without the authority and sanction of the Senate.

But, Mr. President, 1 tliink we are indebted to Mr. Phelps for his
interposition and for his citation from this letter of Sir Julian Paunce-
fote, because it explains the meaning of the word "liability" as it is
used in that paragraph, and it will be found to have no relation what-
ever, for the reason 1 will give you in a moment, to the question of the
liability of the United States, if in point of fact the seizures were
unauthorized.

You will observe that article YIII deals with claims which may be
made, either on the part of the United States or its citizens, or on the
part of Great Britain and its citizens. You will observe the distinction
at once between the two sets of claims. Once it is clear that the acts
which are complained of are done with the authority of the Executive
of the United States, it becomes the direct act of the United States:
there can be no question of the liability of the Government for those acts,
if tlie acts themselves cannot be justified; but, per contra^ the United
States were suggesting that they on behalf of themselves and their
citizens might make claims against the British Government in resi^ect
of acts done by individual merchant vessels belonging to subjects of
Great Britain — not public vessels belonging to the Executive, and not
in any way authorized by the Executive. The question raised therefore
was whether or not the British Government would be liable for the acts
of private citizens in the pursuit of pelagic sealing. Sir Julian Paunce-
fote says :

We cannot admit as a principle of iuternatioual law that a Government is respon-
sible for what is done by a merchant ship that is bearing its flag, nnless that Govern-
ment has done something to adopt its act or taken the responsibility upon itself.

Therefore he says, quoad the claim for damages against the Govern-
ment of Great Britain 1 am not prepared to admit that, even if it were
found that the merchant vessel had done something to the interest of
the United States or its citizens, which was without warrant of law, I
am not prepared to admit as a principle of international law that my
Government is ipso facto liable. That is a perfectly intelligible distinc-
tion; but it has no relation, no bearing, upon the other branch of liabil-
ity, namely, the liability of the United States for the acts done under
the direct authority of its executive power. I think the distinction is
now apparent; and I confess upon reflection that I think that Lord
Hannen was right in saying that as regards the word "liability", so far
as it concerns claims of Great Britain, it can not in this connection mean
anything except the amount of liability.

Lord Hannen. — 1 did not intend to express a definite opinion.

Sir Charles Russell. — No, no, my Lord ; I so understood.
783 In truth when one comes to look carefully at the matter, and my
friends are very candid, and I am sure will approach it in a can-
did spirit, how does the matter in fact stand? They have, a priori, in
setting out the questions in article V, set out the grounds upon which
they justify what they did. "We did what we did because we had rights
under our title from Russia to do it — We did what we did by reason of
our own inherent rights as owners of territory, and as owners of certain
alleged rights incident to territory."

That is their justification for the seizures, and if that justification
fails, my learned friends must candidly admit that there is no other
justification. I do not care the least about the form of the thing. I
want to get at the substance. And if it is clear to the mind of the Tri-

54 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P,

bunal tliat tlio two questions haug, together, in the sense that if the
questions of riglit are decided adversely to the United States, then
there can be no justification for tlie seizures and there must be conse-
quent liability for the seizures, I care not in what form of mere words
that result is arrived at.

But let me finally say that this matter really is concluded from the
point of view of the United States by what the}' themselves have said.
What is the meaning of what Mr. Foster sa3's in his very carefully pre-
pared Counter Case on behalf of the United States? He can only
mean one thing when he says at the bottom of page 134:

The United States do not deem it necessary to state iu detail wherein the valua-
tions and damages claimed are excessive and exaggerated, or submit proofs in relation
thereto, further than by the analysis of said claims found in the Appendix . , . for th©
reason that the "questions of fact involved in the claim" of either of the parties to
the Treaty against the other, to be submitted to the Tribunal of Arbitration under
the provisions of Article VIII, should as this article is understood by the United
States, have relation only to such facts as tend to fix the liability of one party to the
other, and do not include facts which only relate to the amounts of such claims.

Mr. Justice Harlan. — Do you understand that to be an admission
that we are to find not only such facts, but also on the question of legal
responsibility arising out of those facts?

Sir Charles Eussell. — These are largely mixed questions of fact
and law. I think the true meaning — as the Judge is good enough to
ask me the question, and I think he is entitled to a direct answer —
I think the true meaning of Article VIII is simply this: That this Tri-
bunal is not to have authority to award judgment in damages against
the United States; that it is not to have authority to order the United
States to pay any sum, much less to fix any sum ; but that it has the
authority and obligation to find the facts, whether they are x>artly law
or partly fact. Let me point out that it is quite a mistake to suppose
that this international Tribunal in affirming propositions of law is aflBrm-
ing propositions of law in the same sense in which a municipal Tribunal
would affirm them. Foreign law is a question of fact. If Mr. Justice
Harlan, sitting in his Supreme Court in Washington had to determine
a question of English law, he would have to determine that, not
784 as a question of law, but as a question of fact. So as regards
any other law which is foreign to the Tribunal before which it
comes in question; and as regards our view of this matter it will be
found that municipal law has a very important j)art to play in the
consideration of this question.

Mr. Justice Haklan. — May I ask you again, that I may get your
exact idea — Sui)pose in reference to a particular vessel we should find
that it was seized at a particular time and at a particular place, having
previously found, let me assume for the purposes of the question, that
the United States has no property in the seals and no right of protec-
tion. Do you insist that we should further find as a fact in the case
that the seizures were wrong?

Sir Charles Eussell. — ^If no other justification was shown I should!
say, Yes.

Mr. Justice Harlan. — What then is left for future negotiation?

Sir Charles Eussell. — The question of amount.

Mr. Justice Harlan. — Only of amount?

Sir Charles Eussell. — The question of amount, and a little more
than amount: a question of amount, speaking of the matter in gross;
a question of liability as regards items of that amount, as for instance
the question of whether the claimants put forward are entitled to claim —
whether they are United States citizens. Again, the question of the
principle upon which the claim is to be assessed, the question raised

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 55

by my friend Mr. Coudert as to |)rosj)ective loss from the nou-employment
of the vessels, and questions of that kind — every question short of the
affirmation of a judgment to pay is what the Tribunal is called upon
as against the United States to affirm under Article Vlli. That is my
contention.

Mr. Gram. — Will you allow me to ask you a question. Was the inser-
tion of this final sentence which commences with the words, "The ques-
tion of liability of the Government", etc., "due to the observations of
Sir Julian Pauncefote in his note cited at page 330?

Sir Charles Russell. — My impression is, sir, as far as I can form
a judgment, that it probably was in consequence of that statement of
Sir Julian Pauncefote; and I have endeavored to explain how in con-
nection with the claim against Great Britain that word would be very
properly used.

The President, — So that we would have to find on no question of
fact except as to the amount of the liability'?

Sir Charles Kussell. — Practically, in my judgment, it comes to
that.

The President. — And that is the way in which you ask us to construe
the article.

Sir Charles Russell. — I am not calling- upon you to say that in
express terms; but I say that it practically comes to that.

The President. — And that is the same interpretation you put upon
the passage you just read from the United States Counter Case?
785 Sir Charles Russell. — Certainly. I think there is no other

interpretation that can be put upon it. I will endeavor to formu-
late in precise language, and put in writing, so that they may be quite
under the eye and clearly within the cognizance of the Tribunal, the
findings that we should ask you to make. I should have thought that
my learned friends and myself, — if they had authority corresponding to
the authority that I as a law officer of tlie Crown have a right to exer-
cise — I should have thought that we could together have determined
that as regards these questions of whether the ships were American
ships, the circumstances under which they were seized, the places, etc.,
they are matters with which this Tribunal ought not to be troubled.
We are asking this Tribunal to affirm great i)rincii)les, not to go into
these details; and I should have hoped that before this discussion has
closed, communication will have been made, if necessary, with the
executive of the United States, iu order that this matter may be
removed from the area of controversy. There ought to be no real
dispute between us on this matter.

Senator Morgan. — The Executive cannot remove it.

Sir Charles Russell. — 1 do not, with great deference, think that
it is a question with which the intervention of the Senate would be
called for.

Senator Morgan. — The Senate would have to affirm any new nego-
tiation.

Sir Charles Russell. — No, it is a question of executive action
under an existing Treaty,

Mr. Phelps, — We shall be very willing to confer with our learned
friends in regard to any questions of fact uj^on which we can agree, in
respect to these matters. Undoubtedly many questions of fact that
they may desire to have found we can agree upon; and if we can, we
shall be glad to save them and the Tribunal any further trouble.

Mr. Justice Haklan, — Still, we have ujion us the responsibility to
make a finding as to those facts.

Mr. Phelps. — Certainly.

56 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

The President. — And upon tliose tacts which shall be submitted
to us.

Mr. Phelps. — But upon another class of facts we are not likely to
agree.

Senator Morgan. — I will say for inyself that I do not feel at liberty
to make a finding upon any state of facts that has not been regularly
submitted to this Tribunal under that Treaty. It says " Questions
shall be submitted". That means that they shall be submitted in
proper form and at the proper time.

Mr. Phelps. — I quite agree that the finding must be by the Tribunal.
What I meant to say was that I am pre[)ared to say to the Tribunal
that we have nothing in opposition to certain facts which we are not
prepared to dispute.

The Tribunal here adjourned for a short while.

Sir Charles Kussell. — I will not pursue the discussion upon
786 the construction of article VIII at this moment, but Avill content
myself with saying in relation to it that we think it will assist
the Tribunal if we formulate in a written pa|)er the findings which,
according to our construction of the Treaty, are findings within the
meaning of article VIII, and which the Tribunal should be called upon
to affirm. I will take the opiiortunity of saying that these statements
of fact shall be submitted to my learned friend on the other side, so
that when he comes to reply we may have his expression, probably of
assent, or it may be in part of criticism, of those statements.

I now proceed to the consideration of the facts relating to the sei-
zures themselves; and it will be convenient if I state
s^izurfr*^ "^ ^^^^ brietly to the Tribunal the order of argument that I intend
to pursue. I intend to bring before the Tribunal, without
any colour, the facts of the seizures and the circumstances which fol-
lowed them in the order of events. 1 shall not feel called upon to make
much comment in relation to them. I shall then proceed to call the
attention of the Tribunal to the diplomatic correspondence, beginning
with the protests always persevered in by the British Government, fol-
lowing the seizures when they occurred, and examining the grounds
which were put forward by the United States in supposed justilication
of those seizures. I shall then examine, for an important purpose, the
legislation of the United States which became the basis of the judicial
proceedings in the Courts in which confiscation of the seized vessels
was sought; and lastly I shall examine the judgments of the judges
who determined the confiscations.

My objects in doing this are to establish, first, that those seizures
were unwarranted in point of law; to establish, next, that the executive
action of the United States was based, and based solely, upon their
municipal legislation, and upon the ground that the seizures took place
where there was territorial dominion of the United States justifying
the application of their municipal legislation to that locality: and that
nowhere is there to be found any suggestion of the contention now put
forward, that those proceedings were really justifiable not under the
municipal legislation at all, but were justifiable and can be defended
upon the ground that it was merely an invocation of the inherent right
to protection which every State has the right to invoke for the protec-
tion of its property. Next, and particularly in connection with the
proposition last mentioned, I propose to show, that this legislation can-
not be treated as being in the nature of executive protective regulations,
because it is legislation which is expressly confined, and has been
judicially held to be confined, to a definite and defined area, namely the

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q, C. M. P. 57

eastern part of Behring: Sea; and tliat that consideration makes it
impossible to treat that legislation as a protective executive act, because
tlie riglit of protection, it^ it is a right, of defence of possession, of pro-
tection of property, is a right which follows that property wherever it
is, and cannot be detined or controlled within defined limits. It

787 will be found hrter, if it should seem to the Tribunal that in this
connection 1 am somewhat elaborating the point, that this will

have a most important bearing upon the area of the dispute between
the United States and Great Britain referred to this Tribunal; and a
most important beaiing also upon what is the limit and extent of the
jurisdiction of this Tribunal both as to questions of alleged right and
as to questions of regulations.

With that statement I proceed to the facts. I have in preparing my
notes for this purpose endeavored to see to which of the many printed
documents I could refer with the least inconvenience to the Tribunal;
and 1 find that with hardly an exception all the documents to which I
shall have to refer are to be found in the large volume, Volume III of
the Appendix to the Case of Great Britain.

It will be found that very frequent references will not be required to
the text, because I intend to state the facts in a narrative form, as they
do not appear in that volume according to the order of date. The
earlier part of my statement will be found on pages CI and 62, and a
little later on pages 22 and 23. Later still it will be found at page 40.
Then we have to pass on to pages 334 and 335. There is then a passing
reference to the Appendix at page 209, But within those pages practi-
cally will be found all to which I am going to reler.

These are the facts, and my friends will no doubt give them the atten-
tion they deserve; I think it will be found that I state them correctly.

The Canadian schooners, the " Thornton", "Onward " and "Carohua"
were seized by the United States revenne steamer " Corwin " on the
first of August 1886. They were towed to Unalaska. I do not stop to
point out where they were seized, whether at 30, 40, 50 or 00 miles from
the islands. I consider that unimportant because it is admitted that in
each case they were seized far beyond the ordinary marginal belt of
sea — the three mile limit. The crews of the "Thornton" and "Caro-
lina", with the exception of one man and the captain on each vessel, who
were detained at Unalaska, were sent by steamer to San Francisco.
They were there turned adrift, while the men of the "Onward" were
kept at Unalaska. The schooners and the seals found on board of
them were also detained by the United States authorities. The master
and mate of the "Thornton" were tried before Judge Dawson of the
United States Court at Sitka on the 30th of August, 1886, and were
sentenced, the captain, to a fine 'Of $500 and the mate $300, and each
was sentenced to be imprisoned for thirty days. In the next month,
that is in September, 1886, the masters and mates of the "Carolina"
and the " Onward " were condemned to undergo similar fines and similar
imprisonment.

There is a painful incident in connection with the master of the "Caro-
lina", who was an old man, and who appears to have been allowed tem-
porary freedom and to have been found dead in some wood to which he
wandered. I do not suggest that that was attributable to the direct
action of the executive authorities. It is simply a lamentable event in
connection with the story.

788 The other masters remaining were imprisoned for some time
and finally were turned adrift, not furnished with funds, and left

to find their way as best they could to their homes, some 1,500 miles
distant.

58 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

On the 21st of October, ISSG, tlie formal protest of Great Eritain was
recorded; and on tlie 4tli of February, 1887, the seizures having? been
made in August, of 1886, orders were given by tlie United States Execu-
tive to discontinue all pending proceedings, to discharge all the vessels,
and to release all the persons who had been arrested in connection with
the seizures.

This order was in due course communicated to the United States Mar-
shal at Sitka, who chose, for some reason that 1 have never yet heard
explained, to disregard it absolutely. He appears to have expressed
the opinion that this executive order was a forgery. He declined to act
upon it. He did not act upon it until a much later period; and it was
not until August, 1888 — I pray your attention to this — two years after
the seizure of these vessels, that effective orders were given for their
release; and by the time orders were given for the release of these ves-
sels they were lying high and dry upon the beach where they had been
left to rot, in so worthless a condition that it was not considered worth
while to retake possession of them for the purpose of conveying them
to some port for repair.

I make only one comment upon this story, and these indubitable
facts — that I think it would have been almost better if my learned friend
Mr. Carter had foreborue making that commendation upon what he
called the forbearance and statesmanlike humanity which had cliarac-
terized the Government and the Executive of the United States in this
connection.

The vessels, the "AnnaBeck", the" W. P. Sayward",the " Dolphin",
the ''Grace", the "Ada", and the "Alfred Adams", were captured in
July and August of 1887. The last mentioned of these, the "Alfred
Adams," escaped from capture. The others were taken to Unalaska.
The officers and the crews were sent off to Sitka, taken before a judge,
and bound over for trial on the 22nd of August; and then, having been
kept for trial until the 9th of September, they were unconditionally
released. As regards the vessels, they were sold by auction by the
United States Marshal on the 26th of March 1889, excepting the " W. P.
Sayward ", in respect of which a bail bond had been given for her release.
Whether that bail bond was paid or sued upon I do not know.

Mr. TuPPER. — No action was taken on it.

Mr. Foster. — We suspended action on it.

Sir Charles Russell. — It is uoti(;eable in respect of the vessels as
to which the order for release was sent at the date I have given, that
notwithstanding, after the great delay to which I have adverted, those
vessels were released at the time when they proved to be worthless, the
authorities sold the stores and other matters in connection with their

equipment. •

789 Now, what is the case which Great Britain has in point of law

to establish in respect of these vessels'? It is clear that all that
Great Britain has to establish, to found its claim for damages for these
vessels in the first instance, so as to make what is called a 'prima facie
case, is the fact of the seizures: this is not denied; next, the fact that
those seizures were made with the authority of the United States: this
also, is not denied; and therefore, these vessels having been seized on
the high sea, the onus lies upon those who seek to justify those seizures,
to show that they were justified in making them. That state of the
case, I am sure, will not be questioned — that once the fact of the sei-
zure upon the high seas is established, and that that seizure was with
authority of the United States Government, the onus thereupon lies
upon the United States Government, in answer to the claim for dam-

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 59

ages in respect to what is prima facie a grievous wrong, tlie onus lies
upon that Government to justify its action upon legal grounds. 1 will
discuss those legal grounds presently.

Now I turn to the correspondence which took place,
and I assure the Tribunal that I will not trouble them „^c^^^^^|?p^^"^''^^°°«
with more than I can avoid. But it is my purpose, which
I wish to make very clear to this Tribunal — though I wish to save them
all the time and trouble that 1 can — it is my purpose that the statement
I am now submitting shall cover the whole ground of tliis case, not per-
haps perfectly or completely, but as far as I am able to do it; and I
shall leave nothing unsaid which I think ought to be said in this con-
nection, even if it should involve very considerable demands upon the
patience of this Tribunal.

I have told jou, Mr. President, that the first seizures took place on
the first of August, 1886. Information appears to have reached the
Foreign Office in London, then i)resided over by the late Lord Iddesleigh,
by the 21st of October of that year; and on page liO is the first commu-
nication to which I need call your attention. It is the second commu-
nication on that page. It is addressed to Sir Lionel West, then the
representative of Great Britain at Washington:

I have to request you to inform nie whether the United States Government have
replied to the comnmiiicatiou which you were directed to make in my dispatch of the
9th ultimo, re^ijardiug the seizure of British vessels in Behriug Sea by a United States
Revenue cutter. If an answer has been received, I should be glad to receive a report
of the substance by telegraph. I should be glad at the same time to know whether
any appeal has been lodged against the decision of the. United States Court condemning
certain British subjects in connection with this matter.

Then at the bottom of that page is the further communication of the
30th of October, which is an important document. It begins —

Her Majesty's Government are still awaiting a report on the result of the applica-
tion which you were directed by my dispatch of the 9th ultimo to make to the Gov-
ernment of the United States for iuformation in regard to the reported seizure by
the United States Revenue Cutter *'(;orwin"of three Cacadian schooners while
engaged in the pursuit of seals in Behring Sea.

790 I am inclined to think that this is one of the few letters that

it may be desirable to read at length.
(Sir EiCHARD Webster thereupon read the remainder of the above
letter, as follows:)

In the meanwhile, further details in regard to these seizures have been sent to this
country, and Her Majesty's Government now consider it incumbent, on them to bring
to the notice of the United States Government the facts of the case as they have
reached them from British sources.

It appears that the three schooners, named respectively the "Carolina," the
"Onward," and the "Thornton," were fitted out in Victoria, British Columbia, for
the capture of seals in the waters of the Northern Pacific Ocean, adjacent to
Vancouver's Island, Queen Charlotte Islands, and Alaska.

According to the depositions inclosed herewith from some of the officers and men,
these vessels were engaged in the capture of seals in the ojien sea out of sight of
land, when they were taken j)OSsession of on or about the 1st August last by the
United States Revenue cutter "Corwin," the "Carolina," in latitude 55° 52' north,
longitude 168° 53' west, the " Onward" in latitude 50° 52' north, longitude 167° 55'
Tvest, and the "Thornton" in about the same latitude and longitude.

They were all at a distance of more than 60 miles from the nearest land at the time
of their seizure, and on being captured were towed by the "Corwin " to Ounalaska,
■where they are still detained. The crews of the "Carolina" and "Thornton," with
the exception of the captain and one man on each vessel detained at that port, were,
it appears, sent by the steamer "St. Paul" to San Francisco, California, and then
turned adrift, while the crew of the " Onward " were kept at Ounalaska.

Atthe time of their seizure the "Carolina" had 686 seal-skins on board, the "Thorn-
ton" 404, and the "Onward" tOO, and these were detained, and would appear to be
iitiU kept at Ounalaska along with the schooners by the United States authoritieo.

60 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q C. M. P.

According to information given in tlio "Alaskan," a newspaper piiblished at Sitka
in the Territory of Alaska, and dated the 4th September, 1886, it is reported:

1. That the master and mate of the schooner "Thornton" were brought for trial
before Judge Dawson in the United States District Court at Sitka on the 30th August
last.

2. That the evidence given by the officers of the United States Revenue cutter
"Corwiu" went to show that the "Thornton" was seized while in Behring's Sea,
about 60 or 70 miles south-south-east of St. George Island, for the oft'euce of hunting
and killing seals within that part of Behring's Sea which (it was alleged by the
"Alaskan" newspaper) was ceded to the United States by Russia in 1867.

3. That the Judge in his charge to the jury, after quoting the 1st Article of the
Treaty of the 30th March, 1867, between Russia and the United States, in which the
western boundary of Alas'ka is defined, went on to say: "All the waters within the
boundary set forth in this Treaty to the western end of the Aleutian Archipelago
and chain of islands are to be considered as comprised within the waters of Alaska,
and all the penalties prescribed by law against the killing of fur-bearing animals
must therefore attach against any violation of law within the limits heretofore
described. If, therefore, the jury believe from the evi<lence that the defendants, by
themselves or in conjunction with others, did, on or about the time charged in the
information, kill any otter, mink, marten, sable, or fur-seal, or other fur-bearing
animal or animals, on the shores of Alaska or in the Behring's Sea east of 193° of
west longitude, the jury should find the defendants guilty, and assess their punish-
ment separately, at a fine of not less than 200 dollars nor more than 1,000 dollars, or
imprisonment not more than six months, or by both such fine, within the limits herein
set forth, and imprisonment.

4. That the jury brought in a verdict of guilty against the prisoners, in accordance
with which the master of the "Thornton," Hans Guttounsen, was sentenced to impris-
onment for thirty days and to pay a fine of 500 dollars, and the mate of the

791 " Thornton," Norman, was sentenced to imprisonment for thirty days and to pay
a tine of 300 dollars, which, terms of imprisonment are presumably now being
carried into efifect.

There is also reason to believe that the masters and mates of the "Onward" and
"Carolina" have since been tried, and sentenced to undergo penalties similar to
those now being inflicted on the master and mate of the "Thornton."

You will observe, from the facts given above, that the authorities of the United
States appear to lay claim to the sole sovereignty of that part of Behring's Sea lying
east of the westerly boundary of Alaska, as defined in the 1st Article of the Treaty
concluded between the United States and Russia in 1867, by which Alaska was ceded,
to the United States, and which includes a stretch of sea extending in its widest part
some 600 or 700 miles easterly. . .

That should, of course, be "westerly" from the mainland of Alaska.

In support of this claim, those authorities are alleged to have interfered with the
peaceable and lawful occupation of Canadian citizens on the high seas, to have taken
possession of their ships, to have subjected their property to forfeiture, and to have
visited upon their persons the indignity of imprisonment.

Such proceedings, if correctly reported, would appear to have been in violation of
the admitted principles of international law.

I request that you will, on the receipt of this despatch, seek an interview with Mr.
Bayard and make him acquainted with the nature of the information with which
Her Majesty's Government have been furnished respecting this matter, and state to
him that they do not doubt that, if on inquiry it sh(»uld prove to be correct, the
Government of the United States will, with their well known sense of justice, at
once admit the illegality of the proceedings resorted to against the British vessels
and the British subjects above mentioned, and will cause reasonable reparation to be
made for the wrongs to which they have been subjected, and for the losses which
they have sustained.

Should Mr. Bayard desire it, you are authorized to leave with him a copy of this
despatch.

I am, etc, Iddesleigh.

The President. — I suppose there is a mistake in the print as regards
the latitude where the " Onward" and the " Thornton" were seized. In
this despatch it is marked 50^° north, and that would be out of Behring
Sea. I suppose that must be a mistake, because nobody alleges tbe
ships were seized out of Behring Sea.

Sir EiCHARD Webster. — I did not read those latitudes because I
knew they were not geographically correct. It appears from other
papers that they were all seized in Behring Sea.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 61

Sir Charles Eussell. — The Tribunal will see that this is a very
grave allegation. The attention of the Government of the United
States is called to it as early as the 9th of October, and one would have
expected that in a grave matter of this kind the Executive would have
been in possession of complete information as to what the facts were.

Here are two Powers fortunately at peace and iu most friendly rela-
tions with one another. A number of the vessels of one of those
Powers are seized upon the sea, without any suggestion of previous
diplomatic representation or expostulation of any kind ; and yet as late
as the 12th November, if you will turn to page 27, you will
793 find Mr. Bayard (an able and courteous Statesman of the United
States, whom I have the pleasure of knowing) writes on that day
and says:

The delay in my reply to your letters of the 27th September and 2l8t October,
aslsing for information, conceruinj; the seizure by the United States Revenue cutter
*'Cor\vin" in the Behring Sea, of British vessels for an alleged violation of the laws
of the United States iu relation to the Alaska seal fisheries, has been caused by my
waiting to receive from the 'I'reasury Department the information you desired

My application to my colleague the Attorney General to procure an authentic
Report of these proceedings was promptly made, and the delay in furnishing the
Report doubtless has arisen from the remoteness of the place of trial.

As soon as 1 am enabled, I will convey to you the facta as ascertained in the trial,
and the rulings of law as applied by the Court.

Let me ask the Tribunal to realise the position of things. He has
been told that the seizure has taken place in Behring Sea, when these
vessels were in pursuit of fur-seals. He has been told that they were
seized at distances from land which showed that they were outside the
ordinary territorial limits; and yet the Secretary of State cannot give
any answer to the challenge of Lord Iddesleigh, who affirms that these
facts point to a grave breach of international law, but must wait till he
gets the exact information from the place of trial.

Senator Morgan. — How can that be if the British Government dis-
claims all responsibility lor the conduct of its nationals?

Sir Charles Russell.t— I am sure it is my fault. Sir; but the appo-
siteness, or connection with my argument, of that remark I fail quite
to aijpreciate.

Senator Morgan. — I understand that the British Government has
disclaimed in the diplomatic correspondence, and excluded from the
Treaty, all considerations of responsibility for the conduct of its
nationals in taking fur-seals. If that be so, I do not understand why
it is that Mr. Bayard was required to make any representation to the
British Government about a matter that he wished to redress or prevent.

Sir Charles Russell. — Sir, I still fail, Avith all sincere respect, to
see the connection with the argument I am pursuing.

Senator Morgan. — I regret that you fail to see it.

Sir Charles Russell. — I am calling attention to the fact that Lord
Iddesleigh has stated facts, which are not contradicted, of the seizure
of British vessels on the high sea outside territorial limits; seized not
by the act of individuals, but seized by the act of the State through its
Executive Authority.

Lord Hannen. — What is your ground of complaint, Sir Charles'?
It was necessary to ascertain the fiicts, and the scene of action was a
long way off.

Sir Charles Russell.— "With great deference, my Lord, No. If

the case really were, that they could justify themselves as having a

legislative power over Behring Sea, or, which is the case now made, as

protecting their property in the fur-seals, there was a prompt and

793 immediate answer. "We have committed no offence against

62 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

international law at all." It is one of the many proofs tbat I am going
to adduce tliat tliis case wbich is now presented to tbis Tribunal

Lord Hannen. — I understand that yon do not make it a ground of
complaint that they took time to ascertain the facts; but you say that
they did not take up the ground that they are now taking up.

Sir Charles Russell, — Certainly; that is my point; one of the
many points which will go to show that as this case developed itself in
the diplomatic correspondence, and as it has still further developed
itself in the course of the printed argument, it has taken a form that
was not present to the mind of the Executive at the time of these
occurrences; as it ought to have been present if the case were as real
as it is now made out.

That brings us to the 12th of November, 188G. I now refer to page
37 of the same book. We have got to the 8th of January, and Lord
Iddesleigh again writes.

Referring to previous correspondence in regard to the case of the three Canadian
schooners engaged in the seal fishery in Behring Sea, I transmit to you herewith a
copy of a letter from the Colonial Office, with a despatch, and its enclosures, from
theGovernor-Geueral of Canada, explaining the views of the Dominion Government
in the matter.

Nearly four months have now elapsed since my despatch of the 9th Septemher last
was addressed to you, in which you were directed to invite the Government of the

United States to furnish you with any particulars I have now to instruct you

to express to Mr Bayard.

and so on.

Thereupon, the next day, as appears at the bottom of the same page,
Sir Lionel West communicates with Mr. Bayard; and on the 12th of
January, at page 39, Mr. Bayard writes :

Your note of the 9th instant was received hy me on the next day, and I regret
exceedingly that, although my efforts have been diligently made to procure from

Alaska tlje authenticated " copies " I should not have been able to obtain them

in time to have made the urgent and renewed application of the Earl of Iddesleigh
superiiuons.

The jircssing nature of your note constrains me to inform you that on the 27th
September last, when I received my first intimation from you that any question was
possible as to the validity of the judicial proceedings referred to, I lost no time iu
requesting my colleague the Attorney-General, in whose Department the cases were,
to procure for me such authentic information as would enable me to make full
response to your application.

Then he says he is awaiting the papers, explains that the distance of
the vessels from any land or the circumstances attendant ui)on their
seizure were unknown to him, and then treats it, and quite actcurately
treats it, as a matter which is of so grave importance that it is right
they should be in possession of accurate information. Then, on the
3d of February, which is on the next page, is a further letter, in which
he says :

I made instant application to my colleague the Attorney General iu relation to the
record of the judicial proceeding.

794 and so on.

I am informed that the documents in question left Sitka on the 26th January and
may be expected to arrive at Port Townseud, and so on.

and so on.
Then:

In this connection, I take occasion to inform you that, without conclusion at this
time of any questions which may be found to be involved in these cases of seizure,
orders have been issued, by the President's direction, for the discontinuance of all
pending proceedings, the discharge of the vessels referred to, and the release of all
persons under arrest in connection therewith.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 63

Now I want to know why this is so. Does any one member of this
Tribnnal believe that at that time, the Secretary of State being in com-
munication with the Attorney General, as his correspondence shows,
and in correspondence (who can doubt it) with the head of the Execu-
tive of the linited States — I mean the President — that if they had
intended to take this ground of legal justification for the seizures, they
would not at least have hinted that there existed some sucli ground
and given some indication of what that ground was? On page 85 will
be found the official intimation of that release, a telegram from the
Attorney General of the 2()th January 1887 to Judge Lafayette Daw-
son and Mr. D. Ball, District Attorney, Sitka, Alaska.

I am directed by the President to instruct you to discontinue all further proceeding
in the matter of the seizure of the British Vessels "Caroliuej" "Onward" and "Thorn-
ton" and discharge all vessels now held under such seizure, and release all persona
that may be under arrest iu connection therewith.

I have told you what was the fate of that telegram — how the order
was treated as a forged order: although sent to the Judge (as appears
from the order on 1 he same page) how it was not acted upon till the
release of the vessels was useless and the men had undergone their
imprisonment and sutiered the penalty imposed by the judgment.

But that is, of course, a minor point. The question that the Tribunal
must ask itself is, is it conceivable that that order for release could
have been made upon any ground except one, namely, the advice of the
responsible legal adviser of the President, that he was of opinion that
it was at least doubtful whether the seizures could in any way be
justified.

Senator Morgan. — Do you mean Mr. Bayard?

Sir Charles Eussell. — I said the legal adviser, Sir?

Senator Morgan. — Who is that?

Sir Charles Eussell. — The Attorney General, Mr. Garland; and
iu answer to Senator Morgan's question, which he has been good enough
to put to me, I can sliow by the very next page that that was the view
of the Secretary of State, Mr. Bayard himself. It is an extract from a
paper i)ublished in Victoria.

General Foster. — All of these are extracts.
795 Sir Charles Eussell. — Certainly.

Senator Morgan. — I thought you were reading from the dip-
lomatic correspondence.

Sir Charles Eussell. — So I was. Sir, but General Foster is refer-
ring to an extract on the page in question. Of course, what I have
been reading is diplomatic correspondence.

Senator Morgan. — Yes, I thought so.

Sir Charles Eussell. — Here is a matter which, if not true, would
have been denied : This is the statement in the middle of page 87.

bayard's opinion.

The following telegram is another unofficial announcement, and seems to he rather
out of harmony with the official acts of the commanders of the Revenue cutters.

Washington, Jahj SO.
Secretary Bayard, when he was shown to-day a despatch from Ottawa, stating
that the Dominion Government is protesting against the discourtesy shown by the
United States authorities in ignoring its demand for reparation for the seizure and
detention of the British Colnml)ia Sealers seized in Beiiring Sea last year, said : " In
the first place no demand was ever made to our Government by any body either foj
the release of the vessels in question or lor damages for their detention."

64 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

That is quite true.

"And iu the second place, if any such demand had been made, it could not have
come by any possibility from the Dominion' Government, with which we have no
diplomatic relations whatsoever."

That is also true.

The vessels in question were released upon representations of the British Govern-
ment that they were British vessels. They were released because our right to hold
them was deenrcd too doubtful to be enforced. Our Government did what it believed
to be right in the matter, without constraint from any quarter.

Senator Morgan. — Is that a newspaper correspondence quoting Mr.
Bayard's statement.

Sir Charles Kussell. — It is exactly what I read, namely, a tele-
gram whicli purports to record Mr. Bayard's opinion.

Mr. Phelps. — In a Canadian newspaper.

Sir Charles Bussell. — I assure you these interruptions are
uncalled for. I do not often complain, but I took pains to state what
it was. 1 read the announcement of it in the paper itself. I said that
it appeared in a paper which I named, published in a place I named,
and I read the parts of the telegram.

The following document is another unofficial announcement, and seems to be rather
out of harmony with the official acts of the commanders of the Revenue cutters.

Senator Morgan. — I beg your pardon. Sir Charles, for the interfer-
ence on my part.
796 Sir Charles Eussell. — Ko, Sir, not at all.

Senator Morgan. — But I wanted to find out whether you
impute those statements to Mr. Bayard as under his pen, or under his
tongue, or as the results of a newspaper correspondence of what he
might have said on some occasion.

The President.— You give credit to them for trying to represent,
with correctness, the views of Mr. Bayard.

Sir Charles Eussell. — That, of course, is the point. It attributes
to Mr. Secretary Bayard a certain opinion and a certain explanation
of a particular course of executive conduct, namely the release of these
vessels. That is published in the Press; it is published in our Case,
it is part of our original case, and up to this moment it has never been
denied; and I say at once, if Mr. Bayard (whom as I have already said
I have the honor to know), should say that that was not true, I should
accept without hesitation or qualification his statement to that effect.
It is a comparatively unimportant point, because, as I said, unless that
is true it is inconceivable that if the United States and their advisers
had the view of their legal rights which are put forward in a later
stage of this diplomatic correspondence — which are put forward in
later phases of this, shall I call it "litigation" — it is inconceivable that
at the time he gave this order for release Secretary Bayard's real views
can have been expressed by such words as these.

" We think we are within our rights in making these seizures; we
think that our rights justify us in making these seizures; we base
these rights on this ground or on that ground, but as an act of good
will to a friendly (xovernment with whom previously we have had no
diplomatic expoi^^tulations, and to which we had x>reviously given
no diplomatic warning — as an act of friendliness and good will to that
Government, with whom we are at peace, we will, under the circum-
stances, release tliose vessels".

Senator IMorgan. — I am sure, Sir Charles, you will not object to my
calling your attention, in vindication of Mr. Bayard, to the fact that ill

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 65

his corres|iondence with the British Goveniment on this subject — at
least so far as I am advised it is so — he hiid aside the question of the
merits of seal fishing and seal hunting. All those questions about
Behring Sea, and right of property, he set aside, with a view of dis-
cussing and settling with Lord Salisbnry the question of Regulations.
I do not remember that he ever took up the subject of the alleged
rights of the respective parties, and dealt with that as an independent
topic in his diplomatic correspondence.

Sir Charles Russell. — Sir, we are taking time, too literally, by
the forelock. We have not got to the portion of the correspondence
where that appears. 1 shall come to that in a few moments. 1 am
dealing with events as they appeared in January 1887: you. Sir, are
referring to events as they appeared in August 1887. I will come to

them in due course.
797 Senator Morgan. — I am referring to the same period as you

are referring to Sir Charles, in whicli you were stating, as I
understand, that Mr. Bayard should have made an objection at that
time to the action of his Government if he had dissented from it, or
aflirmed it if he approved it.

Sir Charles Russell.— I do not say that he should have dissented
from the action of his Government at all, because it was, as I take it,
his own action to a certain extent.

Senator Morgan. — I am speaking of the Judges.

Sir Charles Russell. — He was a member of the Government.
What I am pointing out is, that if there had been any conception of
the existence of such legal rights as are now invoked in justification
of his conduct, one would have expected to find from Mr. Secretary
Bayard, or from some other executive officer, some foreshadowing of
these grounds.

Senator Morgan. — Certainly, if he was dealing with that phase of
the question, but I do not think that he was.

Sir Charles Russell. — His Government is charged as distinctly as
a Government can be charged, in the very long despatch from Lord
Iddesleigh that I have read, with a most grave ottence against inter-
national law. His answer is: — I have released the vessels because I
consider it too doubtful whether we were entitled to hold them.

Senator Morgan. — I do not think he said that.

Sir Charles Russell. — At present, the state of the case is, that I
cannot affirm that he said it. I do not affirm that he said it, for I do
not know. All I know is, that it is published that he said it, and that
so far as I know up to this moment there has been no contradiction of
the fact.

Lord Hannen. — Does it appear when the record of the proceedings
in the Alaskan Court was received at Washington.

Sir Charles Russell. — It was, in fact, received in April 1887. I
am now coming to it in the order of time, and Senator Morgan will find
that I shall omit nothing which I conceive to be important as throwing
light on what w^ere the motives and state of opinion of the Executive
at this time.

On the 12th April Mr. Bayard writes to Sir Sackville West iu these
terms.

Sir: I have the honour to acknowledge your note of the 4th instant relative to
the fisheries in Behring Sea, and inquiring whether tlie documents referred to in my
note of the 3rd Fel)ruary relating to the cases of seizure in those waters of vessels
charged with violating the laws of the United States regulating the killing of fur-
seals, had been received. The records of the judicial proceedings in the cases in
the District Court in Alaska referred to were only received at this departmeiit oij
Saturday last and are now under examinatiuji.

B S, PT XIII 5

GQ ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P.

The remoteness of tlie scene of the fur-seal fisheries, and the special peculiarities
of that industry, have unavoidahly delayed tlie Treasury oflicials iu framing appro-
priate Regulations, aud issuing orders to United States vessels to police the Alasitau
waters for the protection of the fur-seals from indiscriminate slaughter, aud conse-
quent speedy extermination.

798 The laws of the United States in this behalf are contained in the Revised
Statutes relating to Alasl^a in sections 1956-1971, aud have been in force for

upwards of seventeen years, and prior to the seizures of last sunnner but a single
infraction is known to have occurred, and that was promptly punished.

That must have been some American sealer, though we have not
heard of it before. I do not know the history of it. Then the letter
continues:

The question of instructious to Government vessels in regard to preveuting the
indiscriminate killing of fur-seals is now being considered, and I will inform you
at the earliest day possible what has been decided, so that British and other vessels
visiting the waters in question can govern themselves accordingly.

I am not asking the assent of the Tribunal or any member of it to
any conclusion as I go on, as I have achieved my sole purpose if I have
satisfied myself that I am making my motive and my argument intelli-
gible to the Tribunal. We get here, therefore, for the first time a sug-
gestion — not put forward as a justification — but a suggestion, which is
a reference to the United States Revised Laws, sections 195G-1971; but
there is no suggestion in point of fact in what sense they are supposed
to apply.

Now we pass on, and on the 10th of September comes a very impor-
tant communication, at page 88, from Lord Salisbury. I think this
one and one other are the only two that I shall ask to be read in
full; but inasmuch as this puts forward the grounds upon which Lord
Salisbury supi^oses it is suggested that the executive action may be
excused or justified, I think it desirable that they should be fully read.

Sir KiCHARD Webster. — It is on page 88. This is from the Mar-
quis of Salisbury to Sir Lionel West :

Foreign Office, September 10th, 1S87.

Sir: By a despatch of the 30th October last the late Earl of Iddesleigh instructed
you to call the attention of the United States Secretary of State to the circum-
stances of the seizure in Behriug's Sea, by the American cruizer "Corwin" of some
British Canadian vessels, and his Lordship directed you to state to Mr. Secretary
Bayard that Her Majesty's Government felt sure that if the proceedings which were
reported to have taken place in the United States District Court were correctly
described, the United States Government would admit their illegality, and would
cause reasonable reparation to be made to the British subjects for the wrongs to
which they had been subjected and for the losses which they had sustained.

By a previous despatch of the 9th September you had been desired to ask to be
furnished with any particulars which the United States Government might possess
relative to the seizures in question ; and on the 20th October you were instructed
to enter a protest on behalf of Her Majesty's Government and reserve for consid-
eration hereafter ail rights to compensation.

Nearly four months having elapsed without any definite information being fur-
nished by the United States Government as to the grounds of the seizures my
predecessor instructed you, on the 8th January last, to express to Mr. Bayard the
concern of Her Majesty's Government at the delay, and to urge the immediate atten-
tion of the United States Government to the action of the American authorities in
their treatment of these vessels, and of their masters and crews.

On the 3rd February Mr. Bayard iuformed you that the record of the judicial
proceeding Avhich he had called for was shortly expected to reach Washing-

799 ton, aud that, without conclusion at that time of any questions which might
be found to be involved iu these cases of seizures, orders had been issued by

the President's direction for the discontinuance of all pending proceedings, the dis-
charge of the vessels referred to, and the release of all persons under arrest in con-
nection therewith.

On the 4th of April, under instructions from me, you inquired of Mr. Bayard, in
view of the approaching tishing season in Behriug's Sea, whether the owners of Brit-
ish, vessels might rely when not near land on being unmolested by the cruisers wf

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 67

the United States, and you again asked when the record of the judicial proceedings
might be expected. Mr. Bayard informed you, in reply (12th April), that the papers
referred to had reached him and were being examined; that there had been unavoid-
able delay in framing appropriate Regulations and issuing orders to United States
vessels to police the Alaskan waters; that the Revised Statutes relating to Alaska,
Sections 19r)6 and 1971, contained the laws of the United States in relation to the
matter; and that the Regulations were being considered, and he would inform you
at the earliest day possible what had been decided, so that British and other vessels
might govern themselves accordingly.

In view of the statements made by Mr. Bayard in his note of the 3rd February, to
which I have referred above, Her Majesty's Government assumed that, pending a
conclusion of the discussion between the two Governments on the general question
involved, no further similar seizures of British vessels would be made by order of
the United States Government. They learn, however, from the contents of Mr.
Bayard's note of the 13th August last, inclosed in your despatch of the 15th August,
that such was not the meaning which he intended should be attached to his com-
munication of the 3rd February; and they deeply regret to find a proof of their
misinterpretation of the intentions of the United States Government from an
announcement recently received from the Commander-in-chief of Her Majesty's naval
forces in the Pacific, that several more British vessels engaged in seal-hunting in
Behring's Sea have been seized when a long distance from land by an American
Revenue vessel.

Her Majesty's Government have carefully considered the transcript of record of
the judicial proceedings in the United States District Court in the several cases of
the schooners "Carolina", "Onward" and "Thornton" which were communicated to
you in July, and were transmitted to me in your despatch of the 12th of that month,
and they cannot find in them any justification for the condemnation of those vessels.

The libels of information allege that they were seized for killing fur seal within
the limits of Alaskan Territory, and in the waters thereof, in violation of section
1956 of the Revised Statutes of the United States; and the United States Naval
Commander Abbey certainly affirmed that the vessels were seized within the waters
of Alaska and the Territory of Alaska; but according to his own evidence they were
seized 75, 115, and 70 miles respectively south-south-east of St. Georges Island."

It is not disputed, therefore, that the seizures in question were effected at a dis-
tance from land far in excess of the limit of maritime jurisdictiou which any nation
can claim by international law, and it is hardly necessary to add that such limit
cannot be enlarged by any municipal law.

The claim thus set up appears to be founded on the exceptional title said to have
been conveyed to the United States by Russia at the time of the cession of the
Alaska Territory. The pretension which the Russian Government at one time put
forward to exclusive jurisdiction over the whole of Behring Sea was, however, never
admitted either by this country or by the United States of America. On the con-
trary, it was strenuously resisted, as I shall presently show, and the American
Government can hardly claim to have received from Russia rights which they
declared to be inadmissible Avhen asserted by the Russian Governuient. Nor does
it appear from the text of the Treaty of 1867 that Russia either intended or pur-
ported to make any such grant; for, by Article I of that instrument, Russia agreed
to cede to the United States all the territory and dominion then posessed by
800 Russia on the continent of America and in the adjacent islands Avithiu certain
geographical limits described, and no mention was made of any exclusive
right over the waters of Behring Sea.

Moreover, whatever rights as regards their respective subjects and citizens may
be reciprocally conferred on the Russian and American Governments by treaty stipu-
lation, the subjects of Her Majesty cannot be thereby affected, except by special
arrangement with this country.

With regard to the exclusive claims advanced in times past by Russia, I transmit
to you documents communicated to the United States Congress by President Monroe
in 1822, which show the view taken by the American Government of these pretensions.

In 1821 the Emperor of Russia had issued an edict establishing Rules for the limits
of navigation and order of communication along the coast of the eastern Siberia, the
north-Avestern coast of America, and the Aleutian Kurile and other islands.

The first section of that edict said: The pursuit of commerce Avhaliug and fishery,
and of all other industry on all islands, ports, and gulfs, including the whole of the
north-west coast of America, beginning from Behring's Straits to the 51st degree of
nori hern latitude; also from Aleutian Islands to the eastern coast of Siberia, as well
as aloug the Kurile Islands from Behring's Straits to the south Cape of the Island of
Urup, viz., to 45° 50' of northern latitude, is exclusively granted to Russian subjects ;
and section II stated: It is, therefore, prohibited to all foreign vessels not only to
hind on the coast land islands Ixdonging to Russia, as stated above, but also to
a]ii)roach them within less thau 100 Italian miles. The transgressor's vessel is sub-
ject to confiscation, along with the whole cargo.

68 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

A copy of these regulations was officially communicated to tlio American Secretary
of State by the Russian Minister at Washington on the 11th February 1822; where-
upon Mr. Quiucy Adams, on tlie 25rh of that month, after informing him that
the l*resident of the United States had seen with surprise the assertion of a territorial
claim on the part of Russia, extending tu the 51st degree of north latitude on the
American Continent and a Regulation interdicting to all commercial vessels other
than Russian, upon the penalty of seizure and confiscation, the approach upon the
high seas within 100 Italian miles of the shores to which that claim was made to
apply, went on to say that it was expected before any act which should define the
boundary betwceu the territories of the United States and Russia, that the same
would have been arranged by Treaty between the parties, and that to exclude the
vessels of American citizens from the shore beijoiid the ordinary distance to which
territorial jurisdiction extends has excited still greater surprise; and Mr. Adams
asked whether the Russian Minister was authorized to give explanations of the
grounds of right, upon principles generally recognized by the laws and usages of
nations, which can warrant the claims and Regulations.

The Russian Minister in his reply, dated the 28th February, after explaining how
Russia had acquired her possessions in North America said:

" I ought in last place to request you to consider, sir, that the Russian possessions
in the Pacitio Ocean extend on tlie north-west coast of America from Behring's strait
to the 51st degree of north latitude and on the opposite side of Asia and the islands
adjacent from the same Strait to the 45th degree. The extent of Sea of which these
possessions form the limits comprehends all the conditions which are ordinarily
attached to shut seas (mersferniees), and the Russian Government mighb consequently
judge itself authorized to exercise upon this sea the right of sovereignty, and espe-
cially that of entirely interdicting the entrance of foreigners; but it preferred only
asserting its essential rights without taking advantage of localities."

On the 30th March Mr. Adams replied to the explanations given by the Russian
Minister. He stated that, Avith respect to the pretension advanced in regard to
territory, it must be considered not. only with reference to the question of territorial
rights, but also to that prohibition to the vessels of other nations, including those of
the United States, to approach within 100 Italian miles of the coasts. That from
the period of the existence of the United States as an independent nation
801 their vessels had freely navigated these seas, the right to navigate them being
apart of that independence; and with regard to the suggestion that '"'the
Russian Government might have justified the exercise of sovereignty over the Pacific
Ocean as a close sea "because it claims territory both on its American and Asiatic
shores", it may suffice to say that the distance from shore to shore on this sea, iu
latitude 51° north, it is not less tlian 90 degrees of longitude, or 4,000 miles. Mr.
Adams concluded as follows: " The President is pursuaded that the citizens of this
Union will remain unmolested iu the prosecution of their lawful commerce, and
that no effect will be given to an interdiction manifestly incompatible with their
rights."

The convention between the United States of America and Russia of the 17th April
1824, put an end to any further pretension on the part of Russia to restrict naviga-
tion or fishing in Behring Sea so far as American citizens were concerned; for by
article 1 it was agreed that in any part of the Great Ocean, coiruuonly called the
Pacific Ocean or South Sea, the i-espective citizens or subjects of the High Contract-
ing Powers shall neither be disturbed nor restrained, eitlier in navigation or fishing,
saving certain restrictions Avhich are not material to the present issue; and a similar
stipulation in the Convention between this country and Russia in the following year
(15th May, 1825) put an end, as regarded British subjects, to the jtretensions of
Russia to which I have referred, and which had been entirely repudiated by Her
Majesty's Government in correspondence with the Russian Government in 1821 and
1822, which for your more particular information I inclose herein.

Her Majesty's Government feel sure that, in view of the considerations which I
have set forth in this despatch, which you will communicate to Mr. liayard, the Gov-
ernment of the United States will admit that the seizure and condemnation of these
British vessels, and the imjirisonment of their masters and crews, were not war-
ranted by the circumstances, and that they will be readj^ to afford reasonable compen-
sation to those who have suffered iu consequence, and issue immediate instructions
to their naval officers which will prevent a recurrence of these regrettable incidents.
I am, etc.,

Salisbury.

Sir Charles E-ussell. — Kow the Tribunal will observe that Lord
Salisbury is there answering- the only case which was put forward,
namely the judgment of Mr. Justice Dawson, which resulted iu the
couflscation of these shii^s — which resulted, of course, in altering tU©
property iu these ships j and the surprising thing is— r

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 69

The President. — The judgment of Judge Dawson was delivered
previously to the 3rd of February.

Sir Charles Kussell. — Oh, long i^reviously.

The President. — It was before the order of release was sent.

Sir Charles Kussell. — Lord Salisbury had only got before him the
record of the proceedings in the Court, and the judgment of the Court
of Sitka. That was the only case he had to denl with, and he deals
with it in a way I shall have hereafter to refer to in anotlier connection
in considering the derivative title claimed under Enssia. But will not
the Tribunal be surprised to hear that that despatch of Lord Salis-
bury, written upon the lOth Sei)tember 1887, received no answer from
the representative of the United States, nntil the year 1890?

If I am wrong in this, let me be corrected on the spur of the moment.
That despatch of Lord Salisbury deals with the only case that is sug-
g-ested — he has got before him the only thing npon which he can form
a judgment, namely t^ie record of the i)roeeedings at Sitka, and he pro-
ceeds, effectually I submit, to demolish that case. But, that I
802 may omit nothing, let me say that Mr. Bayard had done some-
thing meanAvhile; and Avhat was itf He had written on the lOth
August 1887 the letter which has been referred to more than once in
the course of the argument by learned friend, Mr. Carter. This letter
is not to be found in our appendix: it is not to be found, for the reason
that it was not in fact sent to us at all. It was a circular letter
addressed by Mr. Bayard to the representatives of the United States
iu the various capitals of the world. J^o direct communication of this
letter was made to Great Britain, but the communication was shewn or
the purport of it notitied to us by Mr. Phelps, the then Minister for the
United States in London, on the 11th of November 1887.

I will now read that letter, which is in the first Volume of the
Appendix to the Case of the United States, page 168. I desire that
the Tribunal should have all the materials before them in order to
appreciate, in the order of events, the position taken up by the respec-
tive Governments.

Sir: Recent occurrences have drawn the attention of this Department to the neces-
sity of taking steps for the better protection of fnr-seal fisheries in Behring Sea.

Without raising any question as to the exceptional measures which the peculiar
character of the property in question

That is the fur-seal fisheries

might justify this Government in taking, and without reference to any exceptional
marine jurisdiction that might properly be cLaimed for that end, it is deemed advis-
able — and I am instructed by the President so to inform you — to attain the desired
ends by international co-operation.

It is well known that the unregulated and indiscriminate killing of seals in many
parts of the world has driven them from place to place, and by Ijreaking np their
habitual resorts has greatlj^ reduced their number. Under these circumstances, and
in view of the common interest of all nations in preventing the indiscriminate
destruction and consequent extermination of an animal which contributes so impor-
tantly to the commercial wealth and general use of mankind, you are hereby
instructed to draw the attention of the Government to which you are accredited to
the subject, and to invite it to enter into such an arrangement.

And so on.

This was the departure point of the scheme which contemx)lated a
set of international rules not confined to the United States and to Great
Britain, but which should have the concurrence of all the other nations
which were, or might be, interested. But, again, am I not justified in
asking the Tribunal to note in passing here, that while there is a ten-
tative and indirect suggestion that there may be some other ground
ui)on which the Government of the United States may justify its action,

70 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

yet that this ground is not stated as a proposition by which Mr. Bayard
desires to bind either himself or his Government, niuch less is it an
afiirmation of any legal principle ui)on which he feels jnstiiied in tak-
ing his stand? And now, 1 repeat, is it not an jnnaziiig fact that the
despatch of Lord Salisbury, which 1 have venlnred to submit

803 demolishes tlie only (^ase su<;gested, and su.ggested too by the
judicial record of the proceedings at Sitka, should iiave remained

unanswered — I think it remains unanswered to this day — but renuiined
without any appearance of answer until the 22nd of January 1890, or
more than two years after its despatch?

Now, I do not seek to be drawn into any bye-issues. As Lord Salis-
bury, who had succeeded to Lord Iddesleigh, believed, there had been
a breach of a promise made that no further seizures should be effected;
and Lord Salisbury records his statement that he had been so assured
in a letter of the 8th of April, 1888, which is to found at page 189 of
the large volume. It refers to an interview with Mr. Phelps, stating
that he was very anxious for despatch l)ecause of the destruction of the
species which was going on, and which he considered a matter of grave
moment ; and then he i)roceeds.

He informed me, therefore, nuofificially, that he had received from Mr. Bayard a
private letter, from which lie read to me a passaije to the followinjr efl'ect: "I shall
advise that secret instructions bo given to American truizers not to molest British
sliips in Behring Sea at a distance from the shore, and this on the ground that the
negotiations for the establishment of a close time are going on."

And then :

But, Mr. Phelps added, there is every reason that this step should not become
public, as it might give encouragement to the destruction of seals that is taking })]a('e.

And so forth. It is a bj^e-point, and I do not seek to dwell upon it.
There must have been some misunderstanding because, as a matter of
fact, we know that the seizures were renewed.

Meanwhile, there is a change of Cxovernment in the United States,
and in March, 1889, President Harrison succeeds to President Grover
Cleveland ; and Mr. Blaine succeeds, as Secretary of State, to Mr.
Bayard. And I will only say that I have myself very little doubt (if I
may, for the moment, intrude a suggestion of that kind, which means
no disrespect to anybody) that judging from the tenor of Mr. Bayard's
communications and the position he took uj), and the executive action
that he authorised and directed, — I cannot doubt that if he had con-
tinued Secretary of State, we should have had the case settled as a
matter of common interest, and discussed as a matter of common
interest, to all the Nations ; and certainly some of the portions of the
claim now put forward never Avould have been heard of, because they
are inconsistent with the attitude which he himself, in his executive
capacity, took up.

But Mr. Blaine, on the 22nd of January, wrote his celebrated despatch,
which is known as the contra bonos mores despatch ; and there is that
very great break, partly accounted for by the fact, I
of ^^conuT^^^^Vs admit, that negotiations were going on wiiich it was
more.s aigunicnt. hoped might cud the wliolc difliculty, but still I cannot
believe that if in the minds of tlie advisers of the United States there
had been present, even in a faint degree, the existence of definite legal
grounds u])on Avhich their action could be defended or justified,

804 that we shouhl not have had some assertion of it at some time
or other in answer to these communications of Lord Iddesleigh,

in the first instance, and Lord Salisbury, in the second. On the 22nd
of January comes this despatch; and I will just notice, in passing,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 71

that, at page 315, there is a letter from Lord Salisbury on tlie 2ik1 of
October, 1889, in the middle of which he says:

lu a despatch to Sir Lionel West dated the 10th Septeraher, 1887, Avliifh was com-
municated to Mr. J3ayard, I drew tlie attention of the Government of the United
States to the illegality of these proceedings, and expressed a hope that due compeu-
sation would be awarded to the sul)jects of Her Majesty who hnd sutfered from
them. I have not since that time received from the Governineutof the United States
any intimation of their intentions in this respect, or any explanation of the grounds
upon which interference with the British sealers had hcen authorised. Mr. Bayard
did indeed communicate to us uuofdcially an assurance that no further seizures of
this character should take jilace.

And so on.

Now, we come to the celebrated contra honos mores despatch, at page
39(5, dated the 132nd of January. I may relieve the minds of the Tri-
bunal at once by saying that 1 am not going to read it all, as it has
been already read more than once. Of course, if there is any ])assage
in connection with that doctrine which throws light upon it, 1 will read
it if my learned friend suggests. This is the celebrated sentence.

Several weeks have elapsed since I had the honour to receive through the hands of
Mr. Edwardes.

Subjects which could not be postponed have engaged the attention of this Depart-
ment, and have rendered it impossible to give a formal answer to Lord Salisbury
until the present time.

In the opinion of the President the Canadian vessels, arrested and detained in the
Behring Sea, were engaged in a pursuit that is in itself contra honos mores — a pursuit
which of necessity involves a serious and permanent injury to the rights of the Gov-
ernment and people of the United States. To establisli tliis ground, it is not neces-
sary to argue the question of the extent and nature of the sovereignty of this
Government over the waters of the Behring Sea; it is not necessary to explain, cer-
tainly not to define, the powers and privileges ceded by His Imperial Majesty the
Emperor of Russia in the Treaty by wliich the Alaskan territory was transferred to
the United States. The weighty considerations growing out of that territory, with
all the rights on land and sea inseparably connected therewith, may be salely left
out of view while the grounds are set forth upon which this Government rests its
juslification for the action complained of by Her Majesty's Government.

And then he proceeds to argue upon the ground that this is an
immoral traffic, that it is a traffic which interferes with the rights of the
Government and people of the United States, and then he j)roceeds,
rather adroitly, having made some approaches to argument in support
of his own view, to shift the onus.

He says at the bottom of page 397:

Whence did the ships of Canada derive the right to do in 1886 that which they had
refrained from doing for more than 90 years ?

And finally he refers to the fisheries on the banks of Newfound'
805 land as if suggesting there was some i)arallel, and he refers to
dynamite or giant-powder explosions — those I will refer to
because they are afterwards used by Mr. Phelps. He asks why the two
cases are not parallel. I will attempt to give the answer a little later.
And he finally sayii:

In the judgment of this Government the law of the sea is not lawlessness.

Which is a graceful piece of alliteration.

Nor can the law of the sea and the libertj' which it confers and which it protects
be perverted to justify acts which are immoral in themselves.

Well I need not say therefore that in this despatch, although he sug-
gests that there may be grounds based upon jurisdiction derived from
Kussia, liis main ground is that the thing is contra honos mores, a crime
in itself, a crime which they, the United States, have a right to com-
plain of, because it is an injury to them.

72 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Well, now, what is the subsequent course which this correspondence
takes'? It may be described in a sentence, though I have two more
despatches to refer to, one at a little length. Lord Salisbury meets
him upon his own ground and says: You say that this is vonira bonos
mores; Have nations said HI You say that this is an injury to your
rights. What are your rights? Upon what law are they defeusible?
By Miiat law are they recognized and i)rotected?

From that moment you will tind that Mr. Blaine, driven from his
conira honon mores ground, driven from the field, recurs to the Kussian
derivative title, and thereafter, until he comes to cite with a])probation
an eloquent passage from a communication of my learned friend Mr.
Phelps, we hear no more of the contra honos mores doctrine.

Now, in the few moments that remain, I should like to call attention to
that despatch of Lord Salisbury, which 1 take leave to say is a despatch
that has not been answered, and 1 submit cannot be answered. It
will be found on page 462.

In the beginning of that despatch, which I will not read, he repeats,
as every fair man arguing is bound to do, fully and fairly what is the
contention of his adversary. He says: Y^ou say that our vessels were
engaged in a i)ursuit contra honos mores: You say that these fisheries
were under the exclusive control of Eussia: You say that the seals
being taken by i^elagic sealing iu the open sea will speedily destroy the
species. ISTow how are these arguments taken to pieces?

With regard to the tirst of tbese aiguiuents, namely that the seizure of the Cana-
dian vessels in the Behiing Sea was justified by the fact that they were euijaged in
a pursuit that is in itself contra honos vwres — a pursuit which of necessity involves
a serious and permaiieut injury to the rights of the Government and people of the
LUiited States, it is obvious that two questions are involved; first whether the pur-
suit and killing of fur-seals in certain parts of the open sea is, from the point of
view of international morality, an offence contra bonos mores ; and secondly, whether,
if such be the case, this fact justifies the seizure on the high seas and subsequent
confiscation in time of peace of the private vessels of a frendly nation?

806 Can any one doubt that tliat is the test which must be applied,

and the only test that ought to be applied to the proposition so
jiropoanded by Mr. Blaine? You say this i)ursuit is contra honos mores.
I do not agree with you. Has law declared it so? According to inter-
national morality even has it been so declared? It does not become
immoral according to international law merely because you choose to
say it is so! And even if that were so you still lag behind the necessi-
ties of your position, because you have still to shew that even if it were
contra honos mores international law would justify you in seizing in time
of peace and in confiscating the ships of a friendly nation. He then
proceeds to argue the broad principles which cannot be doubted, and
cites in siqiport of them the utterances of a wise President of the United
States (President Tyler) who after stating there was a right to detain
and search a vessel on suspicion of piracy goes on to say:

"With this single exception no nation has in time of peace any authority to detain
the ships of another upon the high seas on any pretext whatever outside the territo-
rial jurisdiction.

Then Lord Salisbury goes on to point out, as I have already taken
occasion to point out, that even in the case of the slave trade, a practice
which the civilized world has agreed to look upon with abhorrence, the
right of arresting the vessels of another country engaged in that trade
is only exercisable by special international agreement. And he finally
draws this conclusion.

But Her Majesty's Government must question whether this pursuit can of itself be
regarded as contra honos vwres, unless and until for special reasons it has been agreed
by international arrangement to forbid it.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 73

Flacuitne gentibus? Do the nations of tlie world agree tliat this is a
thing to be treated as contra ho)ws mores, and to be visited with their
condemnation? Then he iiroceeds.

Fur-se;ils are indisputiibly animals /erfc naturw, and these have universally been
regarded by jurists ixa res mtHitis until they are caught. No person, therefore, can
have property in them until he has actually reduced tlieiii into possession by cajiture.
It requires something more than a mere declaration tiiat the Government or citizens
of the United States, or even other countries interested in the seal trade, are losers
by a certain course of proceeding, to render that course an immoral one.

And so on. And then he conies to the second argument, as regards
Russia and as the argument which is there set out, and set out very
well, is one which 1 must refer to myself in some detail, I will spare the
Tribunal the reading of it at this stage. Finally, he deals with the
question of Avhether the effect of pelagic sealing is to be treated as a
fact beyond denial or doubt — that the taking of seals in the open sea
will lead to their extinction; and expresses his view upon a ])oint which
deals, not with question of property or property right, but of regula-
tions; and he deals with it upon the information then before him.
807 He says in that regard :

The negotiations, now being carried on at Washington, prove the readiness of
Her Majesty's Government to consider whether any special international agreement
is necessary for the protection of the fur-sealing industry. In its al)seure (that is,
of international agreement) they are uual>le to admit that the case put forward on
behalf of the United States affords any sufticient justification for the forcible action
already taken by them against peaceable subjects of Her Majesty engaged in lawful
operations on the high seas.

So that there is the position; and this is the last observation I take
leave to make to day; the position from the first taken up and consist-
ently maintained by Great Britain is this "A denial of yoitr right; an
utter inability on your part to justify by legal argument, or upon legal
grounds, your claim of property, or property right or property interest;
an inability on your part, even if you had such right, to justify what
you have done in protection of that right. But, at the same time,
while your right is denied, while your action, even if the riglit existed,
is unwarranted, still the Government of Great Britain is anxious, is
willing, is ready, to join in dealing with this matter by international
arrangement, which shall recognise that this is not a inatter of exclusive
interest in the United States, but a matter of interest to the world."

The Tribunal adjourned till to morrow morning, the 12th of May, at
11-30 o'clock.

TWENTY-SECOND DAY, MAY 12'^", 1893.

Mr. TUPPER. — Mr. President, I would like to sny that the ronson
"wliy none of the proofs of the last day's arguments a])pear upon the
table of the Tribunal this morning" is that, yesterday bein.i;" a Public
Holiday, the printers were not at work; but yesterday's report and the
report of today's argument will be sent to each Member of the Tribunal
on Saturday.

Sir Charles Russell. — The Tribunal Avill remember that the letter
of Lord Salisbury of the 22nd of May, 1890, at page 402 of Volume III
of Appendix to the British Case, to which I yesterday referred, and to
which I intend to make no further detailed reference, took up the three
grounds set forth in the argumentative letter of the Secretary of State,
Mr. Blaine, of the 22nd of January. It dealt with the question whether
the pursuit of fur-seals by pelagic sealing was contra honos mores, and
it went to the heart of the question, by putting the single point: Can
you say that, in the point of view of international morality, interna-
tional law has ever declared that it was contra honos mores: your asser-
tion does not make it so?

He then proceeds to deal with the derivative claim under Russia;
and, lastly, he deals with the question of fact, as to which he expresses
his disagreement, upon the evidence before him, from the view of Mr.
Blaine as to the effects of pelagic sealing.

ISTow, I stated in commenting on that letter that Mr. Blaine's reply,
to which I am now going to call attention, und which you will find at
page 497 of the same volume, does not make even an attempt to grapple
with any except one of the points dealt with in the pre-
to'^/oM''saU8jfry''^ vious dcspatcli of Lord Salisbury, to which it purjiorted
answer to the con- to bc a reply. My learned friend, Mr. Carter, speaking
spatchT* "''"''* **" almost in a tone of apology for Mr. Blaine, said that he
had innocently — I think my learned friend used the word
"innocently" — that he had innocently allowed himself to be diverted
from the true ground upon which the case of the United States ought
to have been based; that he followed the scent of the herring drawn
across the track by this astute statesnmn. Lord Salisburj^; and that he
did, in his answer to Lord Salisbury's despatch, omit the cardinal point
of what is now said to be the United States case.

Now this despatch, which is to be found, as I think I have said, in

page 457 of the same book, is one of ap])alling length. It extends from

page 457 to page 500 ! I follow the example of ray learned friend

809 Mr. Carter in declining to read it, and lor this reason: I may

describe it, and describe it with perfect accuracy, as being an

elaborate and very ingenious argument upon the construction of the

Treaties of 1824 and 1825; an argument by which jMr. Blaine proves to

his own satisfaction that the Ukase of 1821, by which Russia claimed

the right to exclude all persons or all ships of other citizens from within

100 miles of the coast, was not affected by the Treaties of 1824 or 1825

at all: that those Treaties operated south of the Aleutian chain; but

that the Ukase was recognized and continued to be acted upon, and

acquiesced in, so far as Behring Sea was concerned.

74

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 75

Kow I am stating- his arguraent fairly I think, and with sufficient
fulness. I Avill not deal with that argument in this connection, for the
obvious reason that 1 must combat his views when I deal with thecon-
strueiion of the Treaties and consider the tirst four questions of Article
V; and, as the Tribunal will see I am endeavoring as far as possible to
avoid repeating myself, I must reserve that argument till its proper
place in the discussion. The purjiose I ain now upon is to show to the
Tribunal that whereas the case of derivative title under Eussia, of
exclusive rights and exclusive jurisdiction under liussia, is so promi-
nently put forward in the diplomatic argument, the case which is now
relied upon — the inherent right in every nation to exercise such pro-
tective measures as its interests in its own view demand — while I will
not say is wholly left out of sight, takes indeed a very unimportant
])lace in the discussion. I -justify that by making but one reference
before I leave this despatch. The whole pith of this argument is
summed up on page 506; and at the first sentence on that page the
point to which his argument is addressed is brought out.

It only remains to say that -whatever dnty Great Britain owed to Alaska as a
Russian province, whatever she agreed to do, or to refrain I'rom doinir, touching
Alaska and the Behring's Sea, w;i8 not changed by the mere fact of the transfer of
sovereignty to the United States. It was explicitly declared in the Vlth article of
the Treaty by which the territory was ceded by Russia, that the cession hereby
made conveys all the right, franchises and privileges now belonging to Russia in the
said territory or dominions, and appurtenances thereto.

And he proceeds, and I read this for an additional reason, beyond
that of wishing to show his contention :

Neither by the Treaty with Russia of 1825, nor by its renewal in 1843. nor by its
second renewal in 1859, did Great Britain gain any right to take seals in Beh-
xing's Sea. In fact, those Treaties were a prohibition n])on her which she steadily
respected so long as Alaska was a Russian province. It is for Great Britain now to
show by what law she gained rights in that sea after the transfer of its sovereignty
to the United States.

Mr. Justice Harlan. — Sir Charles, was there a formal renewal of
the Treaties in the year he refers to, or was it an inaccurate use of the
word ?

Sir Charles Eussell.— Well, Sir, I think it is quite correct.
810 I read that latter sentence for a reason that I think will justify
me in the oi)inion of the Tribunal — That latter sentence is a com-
plete misconcei)tion of the legal position of Great Britain in respect of
the fishing rights in Behring Sea. We do not assert, we never have
asserted, that Great Britain gained by her Treaties any rights in Beh-
ring Sea. Eussia had no capacity to confer those rights — no power
except the power of might, if she tried to exercise it and was success-
ful, to prevent the exercise of those rights. We refer to those Treaties
only to show that Eussia, having asserted claims which were incon-
sistent with those rights, withdrew from that assertion, not that she
conferred the rights upon us. The rights did not depend upon her or
upon her will : they are part of the rights which belong to mankind
and to all nations in common.

Then finally, following an ingenious device in argument, he winds up
by seeking to put the onus on Great Britain, and asks how tlie ships of
Canada derived a right in 18G8 which they had not exercised for 90
years: upon what grounds we can defend in the year 1886 a course of
conduct in the Behring Sea which had been carefully avoided ever since
its discovery; and finally, by what reasoning her Majesty's Govern-
ment conclude that an act may be committed with impunity against
the rights of the United States which had never been attempted
against the same rights when held by Eussia?

76 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

I will only observe in passing that tliis is quite a mis appieliensioii of
tlie i)08itioii in Avhicli the question is to be viewed, and that the latter
one of those suji\tiestions bejzs the (|uestion which was really in dispute.

jS^ow I have only one further rclerence to make to this correspond-
ence, and it is of a j;eiu'ral natuie. Several subsetiuent letters })assed.
Lord Salisbury conibatiiiii', demolishing as I submit, the argunu'iit of
IMr. JMaine on the construction of the Treaty; and, linally, with the
despatches of 17 J)ecember, 1890, the discussion on paper substan-
tially came to an end. That despatch will be tbund on ])age 37 of the
second part of the large volume. This is a still more api)alling letter iu
])oint of length, because the letter itself extends from i)age 37 to page
50, and with its inclosures it extends, I thiidf, to about page 04. I again
have pleasure in following the judicious exanijde of my friend Mr. Car-
ter; 1 will not read it. 1 give the same reason which I have given in
reference to the previous despatch, because I have to deal Avith that
matter as a separate argument.

The whole of this letter is conversant with the same (piestion of justi-
fication under derivative right from Kussia, with one exception, and
that is the exception which is to be found in the concluding part of the
letter at page 50. It is the letter which begins with that remarkable
statement that my learned friends are not now prepared to endorse or
to agree with, on page 37, in which Mr. Blaine, a man of acuteness of
mind having obviously carefully studied the question, and having at
his command I ])resume the best legal ability which the Bar of the
United States can furnish him with — and we know how high that
811 ability is — states that if Great Britain can show that Behring
Sea was included in the phrase " Pacific Ocean" in the Treaties
of 1824 and 1825, then the Secretary of State representing the United
States, must admit that the United States have no well grounded com-
plaint against her. Now this is a serious statement. It is a statement
made after the matter has undergone ]n-olonged discussion. We have
now arrived at the month of ]3ecemi)er, 18il0, the discussion arising
out of seizures whicdi had taken place in August, 1880. Therefore, four
years and some months have elapsed during which the question has
been thrashed out in discussion on both sides: and, as one may natu-
rally presume, discussed in the Cabinet Councils both iu Great Britain
and in America. Yet here is this statement. "Satisfy us that Beh-
ring Sea was included under the description of "Paciflc Ocean" in the
Treaties of 1824 and 1825, and we admit that we have no well grounded
complaint against you". I shall sui^j^ort that proposition of Mr. Blaine
in argument. It is the proposition that has to be established, that,
unless there was acquiescence, or recognition, or a course of conduct
which estops or binds England in relation to asserting rights in Beh-
ring Sea, if she shows that Behring Sea was in fact included in the
Pacific Ocean, then she establishes two things, first of all, that Russia,
if she ever made the assertion, did not persevere in it: and next, if the
Treaty does include and cover Behring Sea under the phrase "Pacific
Ocean" that it was a clear and distinct recognition by llussia of the
rights of Great Britain to fish in Behring Sea. But there is, as I have
said, one qualification upon this statement, and it is this: on the 12th
September, 1888, my learned friend, Mr. Phelps, had Avritten, not to
the Government of Great Britain, but to his own Government a letter
which has since become important. It Avas not communicated to the
Government of Great Britain, it lay I Avill not say "^erc/i/e", but,. unno-
ticed apparently in the archives of the Foreign Secretary for two years
and some mouths, and Mr. Blaine, coming across it, reijroduces it and

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 77

hands it clown to posterity in his despatch, with whicli I am now deal-
ing. In introducing' it, he says the United States does not claim that
Behring Sea is a mare olausum; but he goes on to say

At tho same time the United States does not lack abnndant anthority, according to
the ablest exponents of international law, for holding a small section of the Beh-
ring Sea for the protection of the fnr-seals.

What he means by that phrase, I do not know; I cannot even guess.
Does he mean that the section from the line of demarcation from
Behring Straits traced upon both of the maps, running west of the
Pribilolf Islands and between the Commander Islands and the western
end of the Aleutian Chain, — does he mean that that is a small section
of Behring Sea? I do not know what he means ; I do not know whether
he had any real conception in his own mind of what he mer. t; but we
have had no explanation. Then he proceeds:

Controlling a comparatively restricted area of water for that one specific
812 pnrpose is by no means the equivalent of declaring the sea, or any part thereof,
mare claustim.

Lord Hannen. — May that not be connected with the proposition
made in the previous paragraph, as to a circuit drawn round the island
like that which was drawn with reference to Napoleon at St. Helena.

Sir Charles Eussell. — That, probably, is the idea, my Lord.

Lord Hannen. — It follows it immediately afterwards.

Sir Charles Russell. — I am obliged, my Lord; that probably is
the idea; but I have, however, to observe that it is inconsistent with
the entire argument in the earlier part of his despatch.

Lord Hannen. — Yes. It is a fresh proposal.

Sir Charles Russell. — I was going to say, my Lord, it was a fresh
proposal, probably in reference to the suggestion of the concurrence of
Great Britain in Regulations. That may be the explanation of it.

Mr. Justice Harlan. — The paragraph marked " " is one of the
original six questions.

Sir Charles Russell. — Yes; that is probably the explanation.

Then he proceeds to give this quotation from Mr. Phelps' letter, as to
which I am doing no discredit to the arguments which are advanced in
the printed argument before you when I say, that upon examination
that part of it which particularly refers to the supposed claim of prop-
erty in the industry, and jirotection which it is claimed is a right
incident to that property in the industry — that that argument is but
an amplification of this passage from Mr. Phelps' letter.

Now, I have said that that argument, anqjlified in the printed paper
before the Tribunal, I will deal with, of course, in the appropriate
order. I am not now upon it; but, before I leave it, I wish to ask the
Members of the Tribunal to turn back to page 55: about 20 lines from
the bottom of that page, where this sentence occurs:

It will mean something tangible, in the President's opinion, if Great Britain will
consent to arbritrate tlie real questions Avhich have been under discussion between
the two Governments for the last four years.

Then he comes to an enumeration practically, if not exactly, in the
form in which they stand in the Treaty of Arbitration, of the five ques-
tions being those that we have agreed to call, and properly to call,
questions of exclusive right and jurisdiction.

Now, I pass from the correspondence; and I am glad to relieve the
Tribunal f^om the necessity for any further reference at this stage
to it.

78 OllAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

HISTORY OP UNITED STATES LEGISLATION DEALING WITH ALASKA.

I must now call the attention of tLe Tribunal to the history of United

States lej^islatiou upon this question so far as it relates to tliis matter

of the fur-seals, and in endeavouring to lix uj)on the book which

813 will save the members of the Tribunal from endless shifting about
of references, I find that the 1st volume of the A])pendix of the

Case of the United States Avill be found to contain all of it.

Mr. Justice Harlan. — Do you mean at page 1)2?

Sir Charles Russell. — I meant page Do, and I refer to page 95 for
this reason — because from page 95 there are set out the Revised Stat-
utes, some of which are previously set out in the earlier in\rt.

Mr. Justice Harlan. — 1 may explain to yon, Sir Charles, that in 1873
went iuto effect what are called the Ifevised Statutes of the United
States, the main object of which was to put, in the form of a revision
tlie substance of the statutes already in force on the same general
subjects.

Sir Charles Eussell. — So I understand. I am very mucli obliged
The Eevisod Stat ^^^ the explanation, Sir. It was indeed on that under-
ntes of Alaska, sec! Standing that I dcsire to refer to page 95, and 1 have taken
^^^^- the trouble to examine and to note, and I will give the

date, when each of these enactments was origiimlly passed. I will give
the date when the particular provision originally became law.

Now section 1954 became law on the 27th July 1868, and if I might
respectfully suggest, it would not be unimportant if the date were noted
opposite each of these jjaragraphs. Now these are the words of
section 1951:

The laws of the United States relatiupj to customs, commerce, and navigation, are
extended to and over all the mainland, islands, and waters of tlie territory ceded to
the United States by the Emperor of Russia, by Treaty concluded at Washington on
the 30th day of ISLirch, A. D. one thousand, eight hundred and sixty seven, so far as
the same may be applicable thereto.

Now, no lawyer will doubt that that standing by itself is strictly a
territorial statute, that that statute is one which no judge or no lawyer
would construe as applying outside the limits of territorial sovereignty
of the State which enacted it. Nobody will doubt that. What is
doubtful on the construction of the statute itself is what is meant by
" the waters of the territories ceded"; and it will be found in all these
provisions, (whether by accident or design I know not), that there lurks
a grave uncertainty, even down to the very last enactment of 1889,
after the questions in controversy between the two Powers have arisen.
But I am now submitting, as a lawyer to lawyers, as a matter of con-
struction, that if this came to be construed, as to its api)lication to
foreigners not subject to the laws of the United States, no lawyer and
no judge would construe it as havingett'ectoutside the territorial limits
of the State, Those territorial limits of the State might, of course,
include i)ortions of Avater, and in some cases very considerable portions
of water; but as regards territory abutting on the open sea, they could,
according to international law, only extend to the marginal belt now
fixed by common consent of nations at three miles.

Senator Morgan. — I do not desire, Sir Charles, to disturb you in your
argument, but may 1 call your attention to the fact that in 1816,

814 1 think it was. Great Britain and the United States divided the
straits of Juan de Fuca, which were the open sea, and part ot the

North Pacific Ocean, and a sea, by the way, iu which the seal herds
were found, and where fishing for seal was first started — they divided it

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 79

by a line which in no place ap])roacbecl within six miles of either coast,
and in many places it is 40 miles away from either coast, and it is the
boundary line between Great Britain and the United States now.

Sir Charles Eussell. — I am aware of that, Sir.

Senator Morgan. — That destroyed the three-mile territorial limit, as
I suppose, and substituted, in place of it, the other line.

Sir Charles Kussell. — If you, Senator, think this is ad rem (and T
say it with the unfeigned respect that I desire to pay to your observa-
tions) I will endeavor to make some kind of answer. In the first place
I should require to know a little more about the jnecise circumstances
of the water which is called the Straits of Juan de Fuca, which leave
Puget Sound on the one hand and pass Victoria on the other: whether
or not it (;ame within the category of land-locked waters, and so forth.

Senator Morgan. — Tl>ey are not land-locked waters.

Sir Charles Eussell. — I am merely suggesting that I should
require to know more about this before ex])ressiug an opinion.

Senator Morgan. — The lakes are I think.

Sir Charles Eussell. — I should then require to know how far the
concurrence of other nations had been given to the arrangement made
between the two Powers who owned the adjoining territory; and lastly
I should express the opinion, for what that opinion is worth, that if that
could be properly called the ''high sea", and other nations wei-e not
concurring in its appropriation between these two Powers, that the effect
of that treaty would be binding on these two Powers, and on these two
Powers only.

Senator Morgan. — I am only speaking of the fact that the United
States and Great Britain in their treaties had established the i^ropo-
sition that a water boundary may be established by treaty, and upon
the high seas.

Sir Charles Eussell. — I think it would be founding, if I may
respectfully say so, Senator, a tremendous conclusion ui^ou a very small
base of premises to say that because, in that particular case, that ]>ar-
ticular treaty had been entered into, it was the affirmation of a principle
of general apjilication.

The President. — The same argument applies as to the line estab-
lished between Eussia and America at the moment of the cession of
territory in 1807.

Sir Charles Eussell. — That was between those tAvo: It would be
binding as between those two, but if it interfered with the rights of
nations on the high sea it would have no bijiding force or operation
whatever upon them. But I beg with all deference to decline to be
called upon to justify everything that the United States has claimed, or
even everything that Great Britain has claimed.

815 Senator Morgan. — I called your attention to it because you

seemed to think there was some uncertainty in the Act of Con-
gress on the subject, whereas we consider there is absolute certainty,
because we legislated according to our boundaries.

Sir John Thompson. — I think it will be found that that was not a
Treaty dividing water on the high seas outride the three mile limit, but
fixing the boundary line behind which you were to ascertain the respec-
tive properties of the nations; and its bearing was ascertained by its
course on the high seas.

Sir Charles Eussell. — I have no doubt about it. But let there be
no misapprehension upon what I am now saying. I am not contesting
the right of the United States to make any law it pleases over any area it
pleases so far as it purports to bind only its own nationals — that is not

80 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

my argnnient at nil — I was pointing out tliat this would be construed
to mean one which only ai)i)lied to foreigners within the territorial limits
of the legislative enacting- Power. That was my point. But I was
pointing Out too the uncertiunty that, on the face of the Statutes,
seemed to ])revail even as against their own nationals in the use of the
vague words, " and waters of the territory ceded ". That is all I desire
to say.

Now the next section, section 1955, was passed also in 1868, and it
may be convenient to note the date on the margin of that section. It is
a section which is in the n-ature of a revenue section. It says:

The Presideut shall have the power to restrict and re,G:nlate or to prohibit the use
of lire-arms, annnunitiouand distilled spirits into and within the Territory of Alaska;
the exportation of the same from any port or place in the United States when
destined to any port or place in that Territory, and all such arms, ammunition and
distilled spirits exported or attempted to be exported from any port or place in the
United States, and destined for such Territory, in violation of any regulations that
may be prescribed under this section, and all such arms, ammunition and distilled
spirits landed or attempted to be landed or used at any port or place in the Territory,
in violation of such regulations, shall be forfeited; and if the value of the same
exceeds 400 dollars. —

certain consequences are to follow. Then it goes on:

And any person wilfnlly violating such regulations shall be iined not more than
500 dollars or imprisoned not more than six months. Bonds may be required for a
faithful observance of such regulations from the master or owners of any vessel
departing from any port in the United States having on board tire-arms, ammunition
or distilled spirits, when such vessel is destined to any place in the Territory or if
not so destined, when there is reasonable ground of suspicion that such articles are
intended to be landed there in violation ot law.

And so forth.

It is a convenient opportunity to observe (without discussing it at
length, which I must do a little later on) that this is a revenue enact-
ment — an enactment for the protection of the revenue, and the reve-
nue laws are all aimed at the jirevention of oft'euces the completion
or consunnuation of which involves an offence on land; it is the
810 bringing tilings into the territory against the laws of the terri-
tory; and for the enforcement of those laws a certain margin
outside the three-mile limit, under the principle of what is known as
the "hovering Acts", is, by the common consent of a good many
nations — I think it would be a little doubtful to aflirm it as a principle
of international law at this r.ioment, for I think it has not reached that
stage — it is simply that a number of nations have agreed to pass laws
of that kind for themselves; and where they find their nationals in the
case of other Powers attempting to violate those laws, they have
ac(piiesced in their being treated as offenders against tlie law, and have
not intervened to i)rotect them when they believed they were intention-
ally endeavouring to violate the laws which they had passed.

Senator Morgan. — Probably it may become international law by
long acquiescence.

Sir Charles Kussell. — Probably its growth may be in that stage of
gradual development to which I referred in some intro-
ection i9oo. ji^^-tory observations which I made a few days ago.

Now section 1950 was also passed in the year 1808. It is these terms:

No person shall kill any otter, mink, marten, sable or fur-seal or other fur-bearing
animal within tlie limits of Alaska territory or within the waters thereof;

There still is the vagueness to which I have referred.

And every person guilty thereof shall, for each offence, be fined not less than 200
iiollars.uor more than X,000 dollars, or imprisonment not more tUau six months, or

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 81

both ; and all vessels, their tackle, apparel, furuitnre and. cargo, found engaged in
violiitionof this section shall bo forfeited. But the Secretary of the Treasury shall
have power to authorize the killing of any such mink, marten, sable or other fur-
bearing animal, except fui'-seals, under such Regulations as he may prescribe; audit
shall be the duty of the Secretary to prevent the killing of any fur-seal, and to pro-
vide for the execution of the provisions of this section until it is otherwise provided
by law; nor shall he grant any special privileges under this section.

Now I make the same comment iu passing: there is the vagueness as
regards the phrase " within the waters of Alaska territory", leaving it
undetermined whether it means tbe whole of the waters east of the line
of demarcation, or whether it means only the ordinary three-mile belt.
I am not talking of bays, land-locked waters, or matters of that kind —
that will be always understood ; but so far as it was limited to the three-
mile limit, then it was perfectly within the competence of the United
States to bind foreign subjects as well as its own nationals; but if it
extended further than those limits, it could have no application to
foreigners at all.

Now the next section — section 1957, was also passed in 1868. It
says:

Until otherwise provided by law, all violations of this chapter, and of the several
laws hereby extended to the Territory of Alaska and the waters thereof, committed
within limits of the same, shall be prosecuted in any district court of the
817 United States in California or Oregon, or in the district Courts of Washing-
ton ; and the collector and deputy collectors appointed for Alaska Territory,
and any person authorized iu writing by either of them, or by the Secretary of the
Treasury, shall have jjower to arrest persons and seize vessels and merchandize liable
to fines, penalties or forfeitures under this and the other laws extended over the
Territory, and to keep and deliver the same to the marshal of some one of such
Courts; and such Courts shall have original jurisdiction and may take cognizance
of all cases arising under this Act, and the several laws hereby extended over the
Territory, and shall proceed herein in the same manner and with the like effect as if
such cases had arisen within the district or territory where the proceedings are
brought.

I merely ask the Tribunal to take notice, in passing, that such Courts
are to have original jurisdiction. They are " Instance Courts ", as they
are sometimes technically called.

Section 1958 was also passed in the year 18G8, and is in these terms.
It is not very important :

In all cases of fine, penalty, or forfeiture, embraced in the Act approved 3rd
March, one thousand, seven hundred and ninety-seven, chapter 13, or mentioned in
any Act in addition to, or amendatory of such Act, that have occurred or may occur
in the collection district of Alaska, the Secretary of the Treasury is authorized

to exercise the power of remission, and so on.

Now comes the first section of the legislation dealing with the Islands
of St. George and St. Paul — the first legislative Act of the United
States in which the Islands of St. George and St. Paul are directly
dealt with, and that was passed on the 3rd March 18G9.

The islands of St. George and St. Paul in Alaska are declared a special reservation
for Government purjjoses, and until otherwise provided by law it shall be unlawful
for any person to laud or remain on either of those islands, except by the authority
of the Secretary of the Treasury, and any person found on either of those islands,
contrary to the provisions hereof, shall be summarily removed; and it shall be the
duty of the Secretary of War to carry this section into clFect.

I have no comment to make on that exce])t to observe that it was
entirely within the com])etence of the Legislature of tbe United States
to make that provision, if it desired, binding on the whole world. It
was their territory: they had the right to say who shall and who shall
not land there.

Sir John TnoMPSoN.-^Cao you give tbe date of that?

B S, PT XIH 1)

82 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Sir Charles Russell. — It became law oti the 3rd Marcli, 1869.

The next sectiou, 1900, was passed on the 1st July, 1870. I might
indeed, if I wislied to divert from the line which I am u])on, and if
1 were to follow the broad and generous lines of my friend Mr. Car-
ter's argument, have i)ointed out that this attempt to prohibit access
of other persons, and so shut out this island from the commerce of the
world, would hai'dly be in accordance with my friend's broad and gener-
ous conception of the duties and rights of nations; but 1 do not dwell
on that topic.

Xow sectiou 1960 provides:

It shall be unlawful to kill any fur-seal upon the islands of St. Paul and
818 St. George, or in the Avaters adjacent thereto, except during the months
of June, July, September and October in eacli year; and it shall be unlawful
to kill such seals at any time by the use of fire arms, or bj' other means tending to
drive the seals away from those islands, but the natives of the islands shall have the
privilege of killing such young seals as may be necessary for their own food and
clothing during otlier months, and also such old seals as may be required for their
own clothing, and for tlie manufacture of boats for their own use; aud the killing
in such cases sliall be limited and coutrolled by such regulations as may be pre-
scribed by the Secretary of the Treasury.

Well, so far as this deals with the killing of seals ui^on the islands,
again, of course, it is perfectly competent to bind the whole world.
Of course you cannot kill seals on the land unless you are on tiie land
or very close to it on the territorial waters; and therefore it is within
the competence of the United States, by the use of the words in that
section "or in the waters adjacent thereto", construed as a Judge or a
lawyer would construe them, still to mean (unless there was something
in the context Avhich showed a different meaning was intended), the
marginal belt of three nules; the principle of course being, Ttrrw
dominium Jinitur uhi finitur armorum vis.

Section 1961, passed in the year 1870, j^rovides:

It shall be unlawful to kill any female seal, or any seal less than one year old, at
any season of the year except as above provided: and it shall also be unlawful to
kill any seals in the waters adjacent to islands of St. Paul aud St. George, or on the
beaches, clitFs, or rocks where they haul up from the sea to remain ; aud every per-
son who violates the provisions of this or the preceding section shall be punished
for each offence —

And so on.

I make as to that the same comment which 1 made with regard to
the previous section.

Sectiou 1962, which was also passed in 1870, is in these terms:

For the period of 20 years from the first July, one thousand eight hundred and
seventy, the number of the fur-seals which may be killed for their skins upon the
island of St. Paul is limited to seventy-live thousand per annum; and tlie number
of fur-seals which may be killed for tlieir skins upon the island of St. George is lim-
ited to twenty-five thousand per annum.

But the Secretary of the Treasury may limit the number. There is
no objection to that; it is quite within the competence of the Legisla-
ture.

Section 1963 was also passed in the year 1870; and this becomes a
little important:

When the lease heretofore made by the Secretary of the Treasury to the Alaska
Commercial Company of the riglit to engage in taking fur-seals on the islands of
St. Paul aud St. George pursuant to the act of the 1st July 1889—

I do not know what that Act is. I think we have not got it— how-
ever it is not important.
General Foster.— It is the Act autlioyising the lease,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q.' C. M. P. 83

Sir Charles Eussell. — I thank you; that I gathered; but I think
it is not set out.

819 General Foster. — Not here.

Sir Charles Eussell. — It was the first Act authorising- the
lease :

Wheu any future siniilax lease expires, or is snrreudered, forfeited or terminated,
the Secretary shall lease to proper and responsible ])arti(>s, for the best advantage of
the United States, having due regard to the interests of the Government, tlie nntive
inhabitants, their comfort, maintenance, and education, as well as to the interests of
the parties heretofore engaged in trade, and the protection of the fisheries, the right
of taking fur seals on the islands herein named, and of sending a vessel or vessels to
the islands for the skins of such seals, for the term of twenty years at an annual
rental of not less than lifty thousand dollars, to be reserved in such lease and secured
by a deposit of the United States bonds to that amount; and every such lease shall
bo duly executed in duplicate and shall not be transferable.

Mr. Justice Harlan. — Sir Charles, if I might interrnpt you for a
moment, you read tiiat as if it referred to an Act passed in 1889. It is
Chapter 1 889, and the Act of tlie first July 1870. ^o doubt you will find
that provision in the act of 1870.

Sir Charles Eussell. — I think very likely yon are right, Sir. I
misread the chapter for the year, IsTow section 1964 says:

The Secretary of the Treasury shall take from the lessees of such islands iu all cases
a bond —

And so on. I need not trouble about that.
Then section 19G5, passed in the same year, says:

No persons other than American citizens shall be permitted, by lease or otherwise,
to occupy the islands of St. Paul or St. George, or either of them, for the purpose of
taking the skins of fur-seals therefrom, nor shall any foreign vessels be engaged in
taking such skins; and the Secretary of the Treasury shall vacate and declare any
lease forfeited if the same be held or operated for the use, benefit or advantage,
directly or indirectly, of any j)ersou other than American citizens.

I am afraid with regard to this provision the idea of trusteeship for
the benefit of mankind was not quite present to the mind of the framer
of this ]3articular provision.

Now section 196G, which was also passed iu the year 1870, says:

Every lease shall contain a covenant on the part of tlie lessee that he will not keeji,
sell, furnish, give or dispose of any distilled spirits or spiritous liquors —

I need not trouble you Avith that.

Now section 19G7, passed also iu the year 1870, provides:

Every person who kills any fur-seal on either of those islands, or in the waters
adjacent thereto, without authority of the lessees thereof, and every person who
molests, disturbs, or interferes with the lessees, or either of them, or their agents or
employ6s in the lawful prosecution of their business, under the provisions of this
chapter, shall for each offense be jiunished as prescribed in section nineteen hundred
and sixty-one; and all vessels, their tackle, apparel, appurtenances and cargo, whose
crews are found engaged in any violation of the provisions of tlie sections nineteen
hundred and sixty five to nineteen hundred and sixty eight, inclusive, shall be for-
feited to the United States.

Senator Morgan. — What is the penalty attaching to the provision iu
the last sentence that you read Sir Charles'?

820 Sir Charles Eussell :

Every person who kills any fur seal on either of those islands or in the waters
adjacent thereto, without authority of the lessees thereof —

Senator Morgan. — The last clause.
Sir Charles Eussell.

And every person who molests, disturbs, or interferes with the lessees, or either of
them, or their agents or employes in the lawful prosecution of their business under

84 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

the provisions of this chapter, shall for each offence be punished as prescribed in sec-
tion nineteen linndredand sixty one; and all vessels, their tackle, apparel, and appur-
tenances, and cargo, ^bose crews are found engaged in any violation of the provisions
of sections nineteen hundred and sixty-five to nineteen hundred and sixty eight,
iucluBive, shall be forfeited to the United States.

Senator Morgan. — The forfeiture applies to all those ofieuces?

Sir Charles Russell. — Yes.

Senator Morgan. — I am mistaken. I thought it applied only to the
killing of female seals.

Sir Charles Russell. — Not at all, Sir; this section makes it an
oftence to kill any fur seal on either of the Islands without the assent of
the lessees. It makes it an oftence to kill any fur seal " in the waters
adjacent thereto" — whatever those words mean. It makes it an offence
also for any i^erson to molest, disturb or interfere with the lessees in the
lawful prosecution of their business; and it attaches to all those offences
the consequences to be found in the sections referred to, which include
fine and imi)risoumeut; and it also attaches the further sanction and
penalty that the vessels, apparel, and so on, shall be forfeited to the
United States.

I need not point out this is a very wide reaching section, perfectly
within the competence, again, of the United States to pass, so as to bind
its own uatioiials, perfectly competent for the United States to pass so
as to bind all within the extent of its territorial dominion, but not beyond.

Senator Morgan. — Would it be competent to treat it as a hovering
Act, to prevent an ofi'euce against the revenue!

Sir Charles Russell. — Certainly, if an oftence is contemplated to
be committed on the territory, which is the principle of the revenue Acts,
certainly, within the limitations and qualifications which I shall have to
explain when I deal with that subject. Applied, as you will see this
municipal law has been api)lied, it means this, that anyone who kills a
fur-seal any where east of the line which has been called, for brevity,
the line of demarcation, is (as it has been construed) liable to tine,
imprisonment, and to the forfeiture of the shi]) to the United States.
Section 19G8 which was also passed in 1870, is :

If any person or Company, under any lease herein authorized knowingly kills or
permits to be killed any number of seals —

and so on, there are penalties. Then section 1969, also j^assed in 1870 is

In additional to the annual rental required to be reserved in every lease —

821 there is the annual tax or duty of two dollars on each fur skin.
Then section 1970, also passed in 1870, j)rovides.

The Secretary of the Treasury may terminate any lease given to any person, com-
pany or corporation, on full and satisfactory proof of the violation of any of the
provisions of this chapter, or the regulations established by him.

that is, the Secretary of the Treasury. Then section 1971.

The lessees shall furnish to the several masters of vessels employed by them certi-
fied copies of the lease, -which shall be presented to the Government revenue officer.

I need not read that. And then section 1972,

Congress may, at any time hereafter, alter, amend, or repeal, sections from 1960 to
1971, both inclusive, of this chapter.

That is to say, to turn back for one moment, section 1960 is the one
wiiich makes it unlawful to kill any fur-seal on the islands or in the
waters adjacent thereto except in particular months: Section 1961
makes it uidawful to kill any female seal— those are the particular sec-
tions of importance: Congress may alter or repeal those sections, a pro-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 85

vision which I do not myself appreciate. I shouhl suppose it was
always in the competence of the Legislature, by a subsequent provision,
to repeal them.

Mr. Justice Harlan. — I can tell you briefly the history of those
words in our Statutes.

Sir Charles Eussell. — It would be interesting, Sir, no doubt.

Mr. Justice Harlan.^ — Our Constitution says that no State shall pass
a law impairing the obligation of contracts, but these provisions are not
applicable to Acts of Congress. The words referred to by Counsel were
inserted to avoid any question of the Legislature divesting vested
rights. Charters frequently reserve the riglit to alter or amend, to pre-
vent any question being raised that subsequent legislation deprived a
party of vested rights.

Sir Charles Kl ssbll. — The next section became law on the 5th
March, 1872, and that is section 1973.

Mr. Gram. — When was section 1972 made law?

Sir Charles Russell. — That became law in 1870. By section 1973
the Secretary of the Treasury is authorized to appoint one agent and
three assistant agents; aud by section 1974, also passed in 1872, they
are to receive a certain amount of pay. By section 1975 the agents are
not to be interested in any lease, and by section 1976 they are empow-
ered to administer oaths. All those sections were passed in 1872, but
they are not very material.

Now the next legislative Act is Chapter 64, on page 99 of this volume.
It became law on the 24th March 1874, and it provides that

An Act to amend the Act intituled "an Act to prevent the extermination of fur-
bearing animals in Alaska", approved July 1st 1870, is hereby amended, so as
822 to authorize the secretary of the Treasury, and he is hereby authorized to
designate the mouths in which fur seals may be taken for their skins on the
Islands of St. Paul and St. George in Alaska, aud in the waters adjacent thereto,
aud the number to be taken on or about each island respectively.

Now up to this time the Tribunal will perceive that two expressions
have been used. So far as regards water, which is the point in ques-
tion, in describing the extent of the application of the legislation in
the Statute of 1868, the laws relating to commerce and to navigation —
I do not stop to observe upon the consequences of this extension of the
laws of commerce — are extended among other things over all the
mainland, islands and waters of the territory ceded. That is one
expression; but in every subsequent enactment down to 1889, which I
have not yet touched upon, the words are "and waters adjacent thereto".
It stands thus: "the law is to extend to the mainland, islands and
waters of the territory ceded"; and the alternative expression is
"waters adjacent thereto".

Now, in 1889, an important Act was passed; and, before I call atten-
tion to this legislation, I ask permission for one moment, because it is
matter of interest and, I think, not without imiiortance, to show what was
the state of opinion in America among its most distinguished and influen-
tial citizens and legislators upon this subject of public fishing rigjits in
waters adjoining a particular territory. I mention it here, as I always
try to do, in the order of time. We have got now to the eve of the legisla-
tion of 1889. There was then existing another dispute between Great
Britain and the United States. Of course, there is an
eastern as well as a western coast of America, and the ^^^^^^^ °^ ^^^^•
(luestion arose as to what were the rights of the United States to fish in
the waters adjoining Canadian territory, Newfoundland, and so forth;
and there was a certain amount of friction existing between the two

86 ORAL ARGUMENT OF SIR CRARLES RUSSELL, Q. C. M. P.

nations on the subject, and a clistin,i>uislied English Statesman, Mr.
Chamberlain, was (lesi)at('lied in 1888 upon a paciiie mission to America.
The matter linally resolved itself into a very small and tine point. The
general rule as to the three miles from the shore as an international
principle was hardly in question; but the iioiiit arose how it was to be
api)lied in the case of embayed waters. On the part of Canada, it was
claimed tliat, where the bay ran to a considerable extent into the terri-
tory of Canada, that the Canadians should have exclusive rights even
if the mouth of the bay w^as more than G miles wide, that is to say if it
was of greater width than it could be protected by the vis armorum —
three miles on each side. They contended for a wider application. That
w-as resisted bj^ the United States; they claimed that they had the right
to enter any bay which was wider at its mouth than six miles, and had
the right to fish up to within 3 miles of the coast of that bay, following
from point to point the sinuosities of the bays; and, finally, the majority
of the Senate recomnu'nded, for the settlement of the differences, that

the limits should be fixed at 10 miles; that is to say, that wher-
823 ever at the mouth of the bay the land approached m' itliin 10 miles,

the exclusive right should be considered as belonging to the
Power owning the territory. The matter came to be discussed in
Committee, and among the influential Members of the Conimittee was
one of your distinguished body; and he, with three other gentlemen,
signed a minority report. The signatures are those of John T. Morgan,
Eli Salisbury, Joseph E. Brown, and H. B. Payne; and their argument
was a very sensible one; they did not want this restricted limit. I am
reading from the Senate "Miscellaneous documents", 1st session, oOth
Congress, Volun.ie 2, page ()5. The gentlemen who formed this minor-
ity had very wisely in their minds the fact that I have mentioned, that
this great Power, the United States, has interests on both sides, west
and east; and this is the language they use in. their Eeport:

A vast extent of the coast of the Pacific reaching to the Arctic Circle, and dea-
tined to become a more important fishing gronnd than the Atlantic coasts, nnist be
aii'ected by the V)iiu€iples of international law which the United States shall assert
as defining the limits seaward from the coast of oiir exclnsive right to fish for seals
and sea otters and whales, and the many varieties of food fishes that swarm along
the coast of JBehring Sea and the Straits. We might find in that qnarter a very
inconvenient application of the doctrine that by the law of nations the three mile
limit of the exclusive right to fishery is to follow and be measured from the sinuos-
ities of the coasts of the bays, creeks and harbours that exceed six miles in width at
the entrance, and an equally inconvenient application of our claim for full commer-
cial privileges in Canadian Ports for our fishermen when applied to British Columbian
fishermen in our Pacific Ports, which are nearer to them than to our fisheries in
Alaska.

There is a great deal of weight, I need not say, looking to the source
from which it comes, in that statement; but I call attention to it in
view of the broad suggestion which is now propounded, that at the
very time that these statesmen were considering this matter in 1888,
the United States asserted that she had, first of all, under her title
from Russia, and next as inherent in her right of territorial dominion,
the right of stretching out its arm of authority over the whole of
Behring Sea and to exclude others from the pursuit of seals and sea-
otters and whales, — and I do not see why it should stop at fur-seals or
at the many varieties of food fishes that swarm along the coast of
Behring Sea and the Straits, — I say this is very strong evidence, indeed,
that that principle of international law to which we have adverted
was a principle recognized by the public men of authority in the United
States; but that what this minority was struggling against, — and in
the point of view of international interests I do not complain of their
struggling against it — was a limitation in the application of principle

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 87

on the east coast of America which might conflict with some interests
they wouhl feel bound to assert or feel justified in asserting on the
other coast.

Senator Morgan. That treaty was rejected by the Senate.

Sir Charles Eussell. It was, quite true, as I am glad to be
reminded by the Senator. They took the narrow line. They were
for close and strict limitation.

824 Now, before I call the attention of the Tribunal to this Statute
of 1889, as to which I must make some comment, I Avish to give

its history. It is not long, and if the Tribunal will turn to tlie original
Case of Great Britain, the history there begins on page 123. I hope I
need not remind the Tribunal of the point to which all this discussion
IS tending. 1 am upon the question of seizures, and I am pointing out
that the seizures were based upon municipal legislation and upon
municipal legislation alone; and I want to demonstrate only that the
theory which is now i)ut forward was never dreamt of until at a later
stage of the discussion some ingenious mind suggested it.

In 1889, what was the state of things, to begin with? The state of
things was this; that three years before, namely in 1886, vessels of
subjects of the Queen had been seized for fur-sealing in Behring Sea;
that those seizures had been repeated in 1887; that there had been no
seizures in 1888; I think that seizures were further repeated in 1889.
Now that was the state of the case; and you have seen from the dip-
lomatic correspondence up to that time what was the attitude and the
justification of the United States. I will read from the Case, p. 123.

During the fiftieth session of the House of Representatives, in 1889, the Committee
on Marine and Fisheries was directed "to fully investigate and report upon tlie
nature and extent of the rights and interests of the United States in the fur-seals
and other fisheries in the Behring Sea in Alaska, whether and to what extent the
same had been violated, and by whom; and what, if any, legislation is necessary
for the better protection and preservation of the same ! "

The Committee reported, upholding the claim of the United States to jurisdictiou
over all waters and laud included in the geographical limits stated in the Treaty of
Cession by Russia to tlie United States. —

Senator Morgan. — That was a House Committee, was it not?

Sir Charles Eussell. — Yes; it is called a Committee of the House
of Eepresentatives. I need not stop to point out that that was an
assertion of territorial dominion over that area.

The Coumiittee reported, upholding the claim of the United States to jurisdiction
over all waters and land included in the geographical limits stated in the Treaty of
Cession by Russia to the United States, and construing different Acts of Congress aa
perfecting the claim of national territorial rights over the open waters of liehring
Sea everywhere within the above-mentioned limits.

The report states :

The territory of Alaska consists of land and water. Exclusive of its lakes, rivers,
harbours, and inlets, there is a large area of marine territory which lies outside of
the three-mile limit from the shore, but is within the boundary -lines of the territory
transferred by Russia to the United States.

And the Eeport concludes thus :

That the chief object of the purchase of Alaska was the acquisition of the valu-
able products of Behring Sea.

I need not ])oint out that the fur-seal is not the only valuable product
of the Behring Sea, and that that is an assertion of territorial

825 dominion and sovereignty, which, of course, carries with it, if
well founded, the exclusive right to take the products, whatever

they are, of that Sea.

That at the date of the cession of Alaska to the United States, Russia's title to
Behring Sea was perfect and indisputed.

88 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Tliat, by virtue of the Treaty of Cession, the United States acquired complete title
to all that portion of Beliriujr Sea situated within the limits prescribed by tlic Treaty.

The Coiumittee herewith report a bill making necessary amendments of the exist-
ing law relating to these subjects, and recommend its passage.

It tlieii i)rocee(Is to describe the amendments, as declaring the true
intent and meaning; of section 1956. That, tlie Tribunal will remember,
is the section wliich prohibits the killing of any otter, mink, marten,
sable, or fiir-seal or other fiir-bearing animal within the limits of Alaska
territory or in the waters thereof:

That section 1956 was intended to include and apply, and is hereby declared to
include and apply, to all the icaiers of Jlehrbuj Sea in Alaska emhraced tvithin the
honndarij -linen mentioned and described in the Treaty with Russia, dated the 30th March,
A. D. 1X67, by which the Territory of Alaska was ceded to the United States; and it
shall be the duty of the President at a timely season in each year to issue his Procla-
mation, and cause the same to be published for one mouth in at least one newspaper
published at each United States port of entry on the Pacific coast, warning all per-
sons against entering said Territory and waters for the purpose of violating the pro-
visions of sai<l section; and he shall also cause one or more vessels of the United
States to diligently cruize said waters and arrest all persons, and seize all vessels
found to be. or to have been, engaged in any violation of the laws of the United
States therein.

The Bill, Mr. President, did not pass the House of Representatives,
but this section was added by the House as an amendment to a Bill for
the jirotection of the salmon fisheries of Alaska, which originated in
the Senate.

The Senate however refused to accept the amendment of the other
House, and the Bill was accordingly referred to a Conference of the
Houses, and the section, as finally modified and adopted in the Act of
the 2nd March 1889, reads as follows :

This is as it stands in the book at page 99, and it will be observed that
it did not i)ass the legislative bodies and ultimately become law in the
terms in which it was recommended: those terms being that it should
apply " to all the waters of Behring Sea in Alaska embraced within the
boundary-lines mentioned and described in the Treaty with Russia ".
The earlier statute runs thus: " The laws . . . are extended to and over
all the main-land, islands and waters of the territory ceded to the United
States by the Treaty with Russia"; and the section as it was actually
passed runs as follows:

That S. 1956. . . is hereby declared to include and apply to all the dominion of the
United States in the waters of Behring Sea.

]S"ow I really have to ask, what was the reason of the change? Was
it intended that the change should mean anything, or was it intended
that it should mean nothing?

Was it intended to be left in a position in which, without assert-
826 ing dominion over aJl the waters of Behring Sea, it should yet be
so vaguely framed that the executive authority would be entitled
to invoke an interpretation of it as if it included all the waters of the
Behring Sea as part of the dominion belonging to Alaska territory ? In
this discussion also one of your Tribunal took part, and, as the Tribunal
would be prepared to expect, a sensible part. First of all, instead of
being a substantive Act dealing with this question, it is smuggled into
(if I may use the expression) an Act dealing with an entirely different
matter— an Act for the protection of the Salmon Fisheries of Alaska;
and wlieu it came up, Mr. Senator Morgan (I now refer to page 249 of
vol. Ill of the Appendix to the Case of Great Britain) says :

I wish to say just this: That in the Report made by the Committee the rights of
the Government of the United States were not considered, and not intended to be

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 89

considered. We only arrive at the couclusion that the (luestion presented in the
amendment of the House is of sneh a serious and important a character that the Com-
mittee on Foreign Relations Avould not undertake at this time to iirononnce that
kind of judgment upon it which is due to tlie magnitude of such a question.

Very wise words.

I desire that the Bill as it passed the Senate originally should pass,
That is the Salmon Fisheries Bill.

because it protects the salmon and other lisherics in Alaska, ahout which there is no
dispute; but this paiticnlar question is one of very great gravity and smiousness,
and the Committee on Foreign Relations, or at least a majority of the entire Com-
mittee, did not feel warranted in undertaking to consider it at this time.

Mr. Justice Harlan. — I tliiuk those observations of Mr. Sherman
following- that are important.

Sir Charles Kussell. — I will read them by all means.

Senator MoRdAN, — I should like to say this, that we were then in full
course of negotiations with (Ireat Britain for the settlement of these dis-
l)uted questions, and it was submitted by the Committee of Foreign
lielations to the Senate that tha,t dij^lomatic effort should not be
obstructed by summary legislation.

Sir Charles IIussell. — I think nobody can doubt the perfect wis-
dom of that view which operated upon your mind, but it did not operate
ai)parently ui)on that of the majority of the legislative body.

Tlie point is not what individual Senators, however Avise and eminent,
held in the matter, but what the Legislature has done; and that I am
now proceeding to consider. But in answer to Mr. Justice Harlan, I
will of course, read, Mr. Sherman's speech.

General Foster. — He was chairman of the Committee.

Sir Charles Kussell. — 1 am much obliged.

I intended, when the amendment was properly before us, to say to the Senate that
the Committee on Foreign Relations were of the opinion that while there was no
objection at all to the Senate Bill as it passed [that is the Salmon Fisheries lUllJ it
being for a clear and plain purpose, the question proposed by the House in the
form of an amendment was a grave f)ne, and had no relation to the subject-
827 matter of the Bill, and ought not to be connected with it, had no connection
really with it, and involved serious matters of international law, perhaps, and
of public policy, and therefore it ought to be considered by itself.

I was directed ))y the Committee to state that the subject-matter, the merits of the
proposition proposed by the House, were not before us, and not considered by us,
and we are not at all committed for or against the proposition made by the House.
We make this Report simply because it has no connection with the Bill itself, and
it onght to be disagreed to and abandoned, and considered more carefully hereafter.
I, therefore, ask for a Committee of Conference on the disagreeing votea of the two
Houses.

Ultimately it was passed in the form in which it stands on page 99.

"That section 1950 of the Eevised Statutes of the United States is
hereby declared to include and apply to all the dominion of the United
States in the waters of Behring Sea, and it shall be the duty of the
President, at a timely season in each year, to issue his Proclamation,
and cause the same to be published."

Senator Morgan. — The word "dominion" used in that statute, I beg
leave to say, Sir Charles, is the word used in the Treaty. Of course its
signification as that statute has presented it must, in the absence of an
interjiretation by the Legislature, depend on the judgment of the courts
as to what dominion included.

Sir Charles Russell. — I do not know whether the Tribunal heard
that. It is not without some consequence perhaps. The learned Sena-
tor has said that that word "dominion" as introduced in that section

90 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

is SO iiitiodnced because it is found in the Treaty of 18G7. I beg leave
to observe, with great deference to the learned Senator, that when I
come to deal with that Treaty of 1867 it will be found that there is no
such word in it as "dominion", that it has been changed in the trans-
lation, and that "rights of sovereignty," wiiich is the expression in the
treaty, has been incorrectly interpreted in the English version into the
word " dominion."

Senator Morgan. — I never heard that, as to the word "dominion",
there was a mistranslation of the treaty. I understand the Treaty was
drawn up in English and French.

Sir Charles Kussell. — I think not, sir, with great deference.

Mr. Justice Harlan. — Yes. Here it is in French on page 76.

Mr. Foster. — It is in English and in French. The United States
Government never makes a Treaty in a foreign language.

Senator Morgan. — The word "dominion" was used.

Sir Charles Russell. — In my jndgment the point is not a material
one, but as matter of fact when I come to deal with that Treaty I will
point out the construction that is erroneously i)laced upon some words
in that Treaty, judged at least by the French original. I do not myself
consider that the word is one of importance. It is a mere matter of
translation.

My point upon this Statute of 1885, of course, is that it is a piece of
ex post facto legislation, which purports to extead tlie operation of the
earlier Acts. It is declaratory of the meaning of those earlier
828 Acts, but it substitutes words uuich wider in their scope and
capable of being interpreted to mean, and I think what I have
read shows they were intended to mean, the assertion of dominion, of
territorial sovereignty, over the waters of Behring Sea within the limits
of the Treaty of cession of 1867; therefore, the particular question to
which Senator Morgan has been good enough to draw my attention
w^onld not in that connection be material.

So much for the statutes. Now still pursuing the same line to which
I am closely adhering, and demonstrating to this Tribunal that as against
British subjects the municipal law alone was invoked and put into opera-
tion, I have to say that there was no suggestion at any jjlace, or at any
time, or by any person, of that which one w^ould have expected, if such
a case had been in the minds of the Executive, and which must have
been put forward in the simplest form thus: We are proceeding against
your subjects for violation not of our municipal law, but merely in pur-
suance of that inherent right which we have to protect our property
and our interests, wherever that i^roperty or those interests may be inju-
riously affected.

Now I wish to make this matter clear beyond all possibility of doubt;
and one therefore naturally turns to see what were the grounds upon
which those representing the United States l^xecutive invoked the
authority of their municipal courts and claimed sentence of imi)rison-
ment, fine and confiscation. For that purpose, of course, one natui"ally
turns to the pleadings in the case.

Proceedings in the Alaskan Court.

The case is presented to the Court, and it must be dealt with by the
Court secundum allef/ata et probata. Accordingly I turn to page 65 of
Volume III of the Apxjendix to the British Case. On that page will
be found the libel :

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 91

In the United States District Court, for the District of Alaska.

The United States, Lihellani, v. The Schooner " Thornton", her Taclde, etc. — On Lihel of
Information for being en/jar/ed in the Business of killing Fur-seal in Alaska.

transcript of record.

On the 28th day of August, 188G, was filed the following Libel of Information:

In the District Court of the United States for the District of Alaska.
August Special Term, 1886.

To the Honourable Lafayette Dawson, Judge of said District Court:

The libel of iuformatiou of M. D. Ball, Attorney for the United States for the Dis-
trict of Alaska, who prosecutes on behalf of said United States, and being present
here in Court in hie proper person, in the name and on belialf of the said United
States, against the schooner "Thornton", her tackle, apparel, boats, cargo
829 and furniture, and against all persons intervening ibr their interests therein,
in a cause of forfeiture, alleges and informs as follows:

That Charles A. Abbey, an officer in the R(;venue Mariue Service of the United
States, and on special duty in the waters of the district of Alaska, heretofore, to
wit, on the 1st daj-^ of August, 1886, within the limits of Alaska territory, and in the
waters thereof, and within the civil and judicial district of Alaska, to wit, within
the waters of that portion of Beliring Sea belonging to the said district, on waters
navigable from the sea by vessels of 10 or more tons l)urdeD, seized the ship or ves-
sel, connnonly called a schooner, the "Thornton", her tackle, appar<;l, boats, cargo,
and furniture, being the property of some person or persons to the said Attorney
unknown, as i'orlVited to the United States, ff)r the following causes:

That the said vessel or schooner was found engaged in killing fur-seal within the
limits of Alaska Territory, and in the waters thereof, in violation of section 11)56 of
the Revised Statutes of the United States.

And the said Attorney saith that all and singular the premises are and were true,
and within the Admiralty and maritime jurisdiction of this Court, and that by rea-
son thereof, and by force of the Statutes of the United States in such cases made
and provided, the afore-mentioned and described scliooner or vessel, being a vessel
of over 20 tons burden, her tackle, apparel, boats, cargo, and furniture, became and
are forfeited to the use of the said United States, and that said schooner is now
within the district aforesaid.

U'hcrelbre the said Attorney prays that the usual process and monition of this
honourable Court issue in this behalf, and that all persons interested in the before-
mentioned and described schooner or vessel may be cited in general and special to
answer the premises, and all due proceedings being had, that the said schooner or
vessel, her tackle, apparel, boats, cargo, and furuiture may, for the cause aforesaid,
and others appearing, be condemned by the detiuite sentence and decree of tliis hon-
ourable Court, as lorfeited to the use of the said United States, according to the
form of the Statute of the said United States in siich cases made and provided.

M. D. Ball,

United States District Attorney for the District of Alaska.

That libel was amended and appears in its amended form on page 71,
at the bottom of the pnge. It is not amended in any matter material
for tliis puri)ose, except so as to bring the men as persons under the
cognizance of the conrt. They were afterwards subjected, as you know,
to tine and imprisonment; whicli has also an important bearing as to
whether it was under mnnicii)al law or not that these proceedings were
founded.

Then there is a demurrer, at the bottom of page 72:

1. The said claimant by protestation, not confessing all or any of the matters in
said amended information contained to be true, demurs thereto and says that the
said matters in manner and ibrm, as the same are in the information stated and set
forth, are not sufficient in law for the United States to have and maintain their said
action for the fcnfeiture of tlie property aforesaid.

2. The said claimant by protestation denies that this Court has jurisdiction to
determine or try the question hereby put in issue.

3. And that the said claimant is not bound in law to answer the same.

92 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Tliat demurrer was overruled. I do not tliiuk I ueed trouble j'^ou
with it.
Senator Morgan. — "Was there an intervention of the owner in that
case?

830 Sir CnARLES Eussell. — Yes, of the owner or the person inter-
ested; I think the owner. I wish to go over all these, so that I

need not liave to recur again to tlie pleadings in the other cases. 1 am
merely giving the "Thornton" as a sample case in 1886, The others
were similar.

I will now turn to page 112 of that large volume, which relates to the
later seizures.

The President. — Your point is that the prosecution was always had
under section 1056?

Sir Charles Russell. — Yes, sir. I find I ought to refer the Tri-
bunal for one moment to the beginning of the x)roceedings in the " Say-
ward" case, as they were similar to the later prosecutions. It is on
page S3, at the bottom of the page, vol. III.

In the Distkict Court of the United States for the District of Alaska.
United States v. Geo. B. Ferry and A. Lain(j. — Information.

District or Alaska, ss.

George R. Ferry and A. Lainjj are accused by M. D. Ball, United States District
Attorney for Alaska, by this information, of the crime of killino; fur seals within the
waters of Alaska Territory, committed as follows:

The said George R. Ferry and A. Laing on the 8th day of July, A. D. 1887, in the
District of Alaska and within the jurisdiction of this Court, to wit, in Behring"s Sea,
within tlie waters of Alaska Territory, did kill ten fur seals, contrary to the Statutes
of the United States in such case made and provided, and against the peace and dig-
nity of the United States of America.

Dated at Sitka the 23rd day of July, 1887.

I need not trouble you with the pleadings, which were based upon
the same line; but I now proceed to show the grounds upon which the
judgment of condemnation of the court was invoked, and that will be
found at page 112, these being the grounds filed in the Court, and pre-
sented as the case of the United States, upon which the demand for
iiulgment was based. It appears that we have got these proceedings
from The New- York Eerahl of October 18, 1887. You will see at the
bottom of page 112 a not unimportant statement. The Neiv-YorJc Her-
ald is an important paper x)ubli.shed, as you know, in New- York, and
indeed I may say in Paris also :

The Government here are in receipt of advices from Sitka, w^hich contain the brief
which is uuderstoud to have been prepared at Washington and recently hied in the
Court at Sitka by Mr. A. K. Delauey, as counsel for the United States Government.

Therefore it was under high auspices.

Mr. Foster. — That is a despatch from Ottawa, published in the
Herald.

Sir Charles Russell.— There is no doubt about the fact, but if
my friend intimates to me that he has any doubt about the fact I will
pursue the evidence that shows it.

Mr. Foster. — I am simply calling attention to the fixct that the
despatch originates from Ottawa, Canada.

831 Sir Charles Russell. — It does not matter very much where
it originates.

The President. — You mean, as a matter of fact, that the pleading
was prepared at Washington?

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 93

Sir Charles Kussell. — Precisely. Mr. President I would ask you
to kindly allow my friend Sir Iticliard Webster to read tlie whole of
this, as it is one of the few documents I sliall desire to read in extenso.

Senator Morgan. — Is that a bri^f in the case?

Sir Charles Russell. — Yes; it is the formal pleading filed at
Sitka on behalf of the United States.

Senator Morgan. — It is not a brief then ; it is a part of the case?

Sir Richard Webster. — In the pleadings in those Courts both
sides tile a brief in the Court itself; it is not the same thing as a brief
of counsel.

Sir Richard Webster thereupon read to the Court the following
verbatim copy of the brief:

Case.

The. information in this case is based on Section 1956 of Chapter 3 of the Revised
Statutes of the United States, Avhicli provides tliat "No person shall kill any otter,
uiiuk, marten, sable or fur-seal, or other fur-bearing animal within the limits of
Alaska Territory or in the waters thereof."

The offence is charged to have been committed 130 miles north of the Island of
Ounalaska, and therefore in tlie main waters of that part of Behriug's Sea ceded by
Russia to the United States by the Treaty of 1867. The defendants demur to the
information on the ground.

1. That the Court has no jurisdiction over the defendants, the alleged offence
having been committed beyond the limit of a marine league from the shores of
Alaska.

2. That the Act under which the defendants were arrested is unconstitutional in
so far as it restricts the free navigation of the liehring's Sea for hsliiug and sealing
purjioses beyond the limits of a marine league from shore. The issue thus raised by
the demurrer presents squarely tlie ([uestions:

(1) The jurisdiction of the United States over r>ehring's Sea.

(2) The ijower of Congress to legislate concerning those waters.

The argument.

The fate of the second of these propositions depends largely upon that of the first,
for if the jurisdiction and dominion of the United States as to these waters be not
sustained the restrictive Acts of Congress must fall, and if our jurisdiction shall be
sustained small question can be made as to the power of Congress to regulate fishing
and sealing within our own waters. The grave question, one important to all the
nations of the civilized world, as well as to the United States and Great Britain, is
"the dominion of Behring's Sea."

The Three Mile Limit.

Concerning the doctrine of international law establishing what is known as the
marine league belt, which extends the jurisdiction of a nation into adjacent seas
for the distance of 1 marine league, or 3 miles from its shores, and following all the
indentations and sinuosities of its coast, there is at this day no room for discussion.
It must be accepted as the settled law of nations. It is sustained by the high-
est authorities, law-writers, and jurists. It has been sanctioned by the
832 United States since the foundation of the Government. It was affirmed by
Mr. Jefferson, Secretary of State, as early as 1793, and has been reaffirmed by
his successors — Mr. Pickering, in 1796; Mr. Madison, m 1807; Mr. Webster, in 1842;
Mr. Buchanan, in 1849; Mr. Seward, in 1862, 1863, and 1864; Mr. Fish, in 1875; Mr.
Evarts, in 1879 and 1881; and Mr. Bayard, in 1886. (Wheaton's International Law,
vol. I, sec. 32, pp. 100 and 109.)

Sanctioned thus by an unbroken line of precedents covering the first century of
our national existence, the United States would not abandon this doctrine if they
could; they could not if they would.

Landlocked Seas.

Well grounded as is this doctrine of the law of nations, it is no more firmly estab-
lished as a part of the international code than that otlier principle which gives to a
nation supremacy, jurisdiction, dominion over its own inland waters, gulfs, bays,
and seas. If a sea is entirely enclosed by the territories of a nation, and has no other
communication with the ocean than by a channel, of which that nation may take

94 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

possession, it appears tliat ancli a sea is uo less capal)le of being occupied and becom-
ing property than the land, and it ought to follow the fate of the country that sur-
rounds it. The Meililernineau in former times was absolutely inclosed within the
territories of the Romans, and that people, by rendering themselves masters of the
strait Avhich joins it to the ocean miglit subject the Mediterranean to their Empire,
and assume the dominion over it. They did not by such proceeding injure the rights
of other nations, a particular sea being mauiJestly designed by nature, for the use
of the countries and nations that surround it. (Yattel's Law of Nations, pp. 129
and 130.)

Chancellor Kent, in 1826 before the doctrine as to the marine league limit was aa
firmly established as it now is, says:

"It is difficult to draw any precise or determined conclusion amid the variety of
opinions as to the distance a State may lawfully extend its exclusive dominion over
the seas adjoining its territories and beyond those portions of the sea which are
embraced by harbours, gulfs, bays, and estuaries, and over which its jurisdiction
unquestionably extends." (Kent, vol. I, p. 28.)

Jurisdiction of States.

It thus appears that, while in 1826 the limit of the marine belt was unsettled, the
jurisdiction of a state over its inland waters was unquestioned.

"In the laws of nations bays are regarded as a i)art of the territory of the country
Avhen their dimensions and configurations are sucli as to show that the nation occu-
pying the coast also occupies the bay as apart of its territory." (Manning's Law of
Nations, p. 120.)

"An inland sea or lake belongs to the state in which it is territorially situated.
As illustrations, may be mentioned the inland lakes whose entire body is within the
United States, and the Sea of Azof." (Wheaton's International Law, vol. I, sec. 31.)

"Rivers and inland lakes and seas, when contained in a particular State, are sub-
ject to the Sovereign of such State." (Idem, vol. Ill, sec. 300.)

"Undoubtedly it is upon this principle of international law that out right to domin-
ion over such vast inland waters as the Great Lakes, Boston Harbor, Long Island
Sound, Delaware and Chesapeake Bays, Albemarle Sound, and the Bay of San Fran-
cisco rests. This country, in 1793, considered the wliole of Delaware Bay to be
within our territorial jurisdiction, and it rested its claim upon these authorities,
which admit that gulfs, channels, and arms of the sea belong to the people within
whose land they are encompassed." (Kent's Com. vol. I, p. 528.)

The Doctrine Always Asserted.

It thus appears that our Government asserted this doctrine in its infancy. It was
announced by Mr. Jelferson as Secretary of State, and by the Attorney General in
1793. Mr. Pickering, Secretary of State in 1796, reaftirms it, in his letter to the
833 Governor of Virginia, in the following language: "Our jurisdiction has been
fixed to extend 3 geographical miles from our shores, with the exception of
any waters or bays which are so land-locked as to be unquestionably witliin the
jurisdiction of the states, be their extent what they may." (Wheaton's International
Law, vol. I, sec. 32, pp. 2-100.)

Mr. Buchanan, Secretary of State to Mr. Jordan, in 1849 reiterates this rule in the
following language: "The exclusive jurisdiction of a nation extends to the ports,
harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by head
lands." (Idem p. 101.)

Mr. Seward, in the Senate in 1852, substantially enunciates the same doctrine by
declaring that if we relied alone upon the old rule that only those bays whose entrance
from headland to headland do not exceed six miles are within the territorial jurisdic-
tion of the adjoining nation, our dominion to all the larger and more important arms
of the sea on both our Atlantic and Pacific Coasts would have to be surrendered.
Our right to jurisdiction over these rests with the rule of international law which
gives a nation jurisdiction over waters embraced within its laud dominion.

BeliritKfs Sea Inland Water.

It thus appears that from our earliest history, contemporaneously with our accept-
ance of the principle of the marine league belt, and supjiorted by the same high
authorities is the assertion of the doctrine of our right to dominion over our inland
waters under the Treaty of 1867, and on this rule of international law we base our
claim to jurisdiction and dominion over the waters of the Behring Sea. While it is,
no doubt, true that a nation cannot by treaty acquire dominion in contravention of
the law of nations, it is none the less true that, whatever title or dominion our
grantor, Russia, possessed under the law of nations at the time of the treaty of ces-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. ^5

siou in 1867, passed and now rightfully belongs to the United States. Having deter-
mined the law, we are next led to inquire as to whether Bebring's Sea is an inland
water or a part of the open ocean, and what was Russia's jurisdiction over it.

Bebring's Sea is an inland water. Beginning on the eastern coast of Asia, this
body of water, foruierly known as the Sea of Kamchatka, is bounded by the Penin-
sula of Kiimchatka and l*2:istern Siberia to the Behrinn's Strait. From the American
side of this strait the waters of the Beliriug's Sea wash the coast of the mainland of
Alaska as far south as the Peuiusula of ALaslca. From the extremity of this penin-
sula, in a long, sweeping curve, the Aleutian Islands stretch in a continuous chain
almost to the shores of Kamchatka, thus encasing the sea.

Eussia'a Title and Dominion.

It will not be denied that at the time the United States acquired the Territory of
Alaska by the Treaty of 1X07, tlie waters of the Bihring's Sea washed only the shores
of liussian territory. The territory on the Asiatic side slie had possessed "since the
memory of man runuethnot to the contrary." Her title to the other portions of those
shores and her dominion over the waters of the Bebring's Sea are based " on discovery
and settlement."

Possession and Supremacy.

The light of a nation to acquire newterritory by discovery and possession has been
so uuiv(!rsal]y recognized by the law of nations that a citation of authorities is scarcely
necessary. Upon this subject the most eminent as well as the most conservative of
authorities says : "All mankind have an equal right to things that have not yet fallen
into the possession of any one, and those things belong to the person who first takes
])Ossession of them. When, therefore, a nation finds a country uninhabited and with-
out an owner, it may lawfully take possession of it, and after it has sufficiently made
known its will in this respect it cannot be deprived of it by another nation."

" Thus navigators going on voyages of discovery, furnished with a commission from
their Sovereign, meeting islands or other lands in a desert state, have taken
834 possession of tliem in the name of their nation, and this title has been usually
respecteil , provided it was soon followed by a real possession. " " When a nation
takes possession of a country to which no prior owner can lay claim, it is considered
as. acquiring the empire or sovereignty of it at the same time with the domain."
"The whole space over which a nation extends its government becomes the seat of
its jurisdiction and is called its territory. " ( Vattel, p. 98.)

Such being the law, we are led to inquire as to on what discoveries, possessions,
and occupation Russia's right to dominion in North America is based.

Historical Sketch— 1725-1867.

In 1725, under the commission of that wondrous combination of iron and energy,
Peter the Great, an expedition was organized, crossed the continent from St. Peters-
burg to Kamchatka, where a vessel was constructed, and in .July 1728 sailed for
explorations to the north and east. That vessel was the "Gabriel". Her master
was Vitus Bebring, a name destined to historical immortality. On the exjiedition
Behring crossed the waters of the Sea of Kamchatka, discovered and named the
Island St. Lawrence midway between which and the Asiatic mainland our boundary-
line is laid down by the Treaty, and after passing through the straits which bear
his name returned to St. Petersburg.

In 1733 a second expedition was organized under the auspices of the Government
and the commission of Queen Anne, and with Behring, raised to the rank of Admiral,
at its head, repeated the long and dreary journey across Sil)eria, and in June, 1741,
sailed for new discoveries. In July of that year Behring sighted the American con-
tinent, some authorities claim at the 58th degree of north latitude, others at the 50th
degree. The latter is probably correct, as it rests on the authority of Stellar, who
accompanied the expedition, and Behring undoubtedly sailed as far south along the
American coast as the 45th parallel, in accordance with his instructions. But what
is more pertinent to this inquiry, he discovered several of the Aleutian Islands and
the Komamleroff group or couplet. On the larger of this couplet, which bears his
name, the hardy navigator^ after shipwreck, died on the 19th of December, 1741.

Itussian Discovery.

Bnt the spirit of Russian discovery survived him, and from the starting point he
began traders, hunters, and adventurers made their way from island to island until
the whole Aleutian Chain, and with it the mainland, was discovered. In 1743. 174.5,
1747, and 1749 a Cossack sergeant named Bossof made four Qoiigecutive voyages from

96 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

the mainland of Kamchatka to the Behring and Copper Islands in vessels of his own
construction. In 1745 a sailor named Nevidchinof, who had served under Hehring,
crossed the channel which connects the North Pacific Ocean with the Behring Sea
and discovered the islands of Attn, and Agatoo, the former of which now marks the
western limit of our laud dominion. lu 1744 a small Russian merchant vessel reached
the island of Atka and some of the smaller islands surrounding it.

Ten years later Glottoff, in a ship belonging to an Okotsk merchant, advanced as
far as the island of Ouuak, and subsequently discovered Ounalaska and the whole
of that group of the Aleutian Chain known as the Fox Islands. He made a map of
his explorations, which includes eight islands east of Ounalaska, In 1760 a Russian
merchant, Adreian Tolstyk, lauded on the island of Adak, explored it and some of
the surrounding islands, and made a report of his discoveries to the Russian Crown.
This group was named after him, the Adreian Islands. The next year a ship belong-
ing lo a Russian merchant named Bechevin made the coast of the Alaska. Peninsula,
and in the autumn of 1762 Glottoflf, who discovered Ounalaska and the Fox group,
reached the islaud of Kodiak. In 1768 two captains of the Imperial Navy, Krenitzen
and Leveshoff. sailed from Kamchatka in two Government vessels, and the former

passed the succeeding winter at Kodiak, and the latter at Ounalaska.
835 Twcnty-tive years succeeding the death of Behring the spirit of discovery

had planted the Russian eusigu along the entire Aleutian Chain fromBehring's
Island to the mainland of the North American Continent.

After the Seals.

Possession and occupation followed the foot-steps of discovery, and settlements
and trading posts were established at the more favorable points along the line.
Expedition stimulated by the large remunerations of the fur traffic, were constantly
titted out at the ports along the shores of the Sea of Okotsk and the mouth of the
Amoor river for voyages of trade and exploration in the new country. Lieut. Elli-
ott, in his report on the seal islands, published with the 10th Census of the United
States, estimates that no fewer than 25 companies with quite a deet of small ves-
sels were thus employed as early as 1772. Under the auspices of one of these com-
panies, Shelekoff, a merchant of Rylsk, founded the first permanent settlement on
the island of Kodiak in 1784. From this point exploring expeditious were sent out,
one of which crossed the Strait between Kodiak and the mainland which bears
Shelekoff's name, and explored the coast of the mainland as far as Cook's Inlet, upon
the shores of which in 1786 a settlement was established.

Another pushed along the coast to Prince William Sound and Cape St. Elias, the
latter of which was located by Behring in 1741. In 1788 another of Shelekoff's ships
visited Prince William's Sounil, discovered Yakutat Bay, and made a thorough
exploration of Cook's Inlet. In the meantime, in 1786, Gehrman Pribilof, a Mus-
covite ship's mate, sailed from Ounalaska in a small sloop called the '"St. George"
discovered the islands which boar his name, located in the heart of the Behring
Sea, and now far famed as the only seal rookeries in the known world.

Baranoff'a Mission.

In 1790 the Shelekoff company placed at the head of all enterprises in the new
country that restless spirit whose energy clinched Russia's dominion to her posses-
sions in North America, Alexander Baranoff. Arriving at Kodiak, he changed the
headquarters of the company to the harbor of St. Paul, where the village of that
name now stands, and the next year one of his skippers passed round the extremity
of the Alaska Peninsula and along the Northwestern coast to Bristol Bay, discover-
ing Kvichak river and the Lake Llamua, and crossed the portage to the mouth of
Cook's Inlet, thus finding the safest and quickest means of communication between
Shelekoff's Straits and the Behring Sea.

In 1794 Baranoff establisiied a ship yard at Resurrection Bay on Prince William
Sound. About this time the first missionaries of the Greek church arrived, and
IMissions were established at Kodiak, Ounalaska and Spruce Island. The next year
Baranoff extended his operations and trading posts to Yakutat Bay. Following this
was the consolidation of all Russian interests in North America, giving rise to the
Russian-American Company, w^hich was chartered the year that Baranoff' founded
Sitkix. 1799. The ])ossessions and suprenuicy Russia gained under this Corporation
have been so universally acknowledged and widely understood as to scarcely need
ccmiment. Under this Company, chartered by the Crown, patronized by nobility,
sustained by the sinews of conscdi dated capital, and led by the tireless energy of
Baranoff, new explorations and settlements inevitably followe<l.

As early as 1806, aside from trading posts and Settlements along the Aleutian
Islands, we find the Russian- American Company had established fourteen fortified

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 97

stations from Kodiak to the Alexander Archipelago, now known as Southeastern
Alaska — one at Three Saints Harbour, one at St. Paul Island, one on the island of
Kodiak, one oft" Af()<;nak Island, one at the entrance of Cook's Inlet, three on the
coast of the inh^t, two on Prince William Sound, one at Cape St. Elias, two on
Kautat Bay, and one at New Archangel, on the Bay of Sitka.

836 Along the Coast.

After the death of Baranofi", in 1819, his successor in charge of the affairs of the
Company, Lieutenant Yanovsky, made extensive explorations of the coast and
mainland above the Alaska Peninsula. One expedition explored and made a pre-
liminary survey of the coast from Bristol Bay as far as tlie mouth of the Kuskovim
River, discovering and locating that stream and also the Island of Nuniv^ak, on
parallel 60th degree, in Behriug's Sea. Another passed beyond the mouth of the
Yukon to Norton's Sound, and another entered the Nushegak River just above
Bristol Bay, pushed into the interior, and crossed the mountains and tundras into
the valley of the Kuskovim. Following these, in 1824 and 182(5, were the explo-
rations and surveys of Etholin and Luedke, further north on the coast of the
mainland.

In 1824 that eminent divine of the Greek Church, Bishop Veniaminoif, visited
the coast between Bristol Bay and the Kuskovim, establishing missions, chapels,
and churches. Previous to this time, in 1815, Lieutenant Kotzebue, under the
patronage of Count Rumiantzo, had discovered and surveyed Kotzebue Sound and
the Arctic coast of America as far as Cape Lisburue. Lieutenant Tebenkof, of the
navy, in 1835, established missions and redoubts at St. Michael's, on the Norton
Sound, and in 1838, an expedition fitted out by him located Point Barrow. Mean-
while, exjieditions had penetrated into the interior. Glazunof ascended the Yukon
as far as Nulato, and made the first portage between that river and the Kuskovim
in 1836, while Malakof reached the same point from the redoubt established by
Veniaminofl' on the Nushegak, by way of that river and the Kuskovim.

They were folloAved bj' Lieutenant Zagoskin, of the Imperial Navy, who in
1842-3 with five assistants made extensive explorations of basins of the Yukon and
Kuskovim, a voluminous journal of which is now in print.

Unbroken Possession.

This brings us to the close of the first century of Russian discoveries and occu-
pation in North America. It is needless to follow further, as the twenty-five years
intervening between 1842 and the date of the treaty of the United States are but a
continuation and repetition of Russian occupation and supremacy of this territory.
That possession was never changed or broken until it jiassed to the United States
under the Treaty of 1867. The archi\ es of Russia will further show that the
Imperial Government itself not only fostered these discoveries, but from the earliest
period has asserted and exercised dominion over the North American possessions.

The discoveries of Behring in 1728-1741 were under Royal Commission. In
1766 Tolstyk, after his discover^' of the Adreian group of the Aleutian chain, was
granted special privileges in the new possessions by an Edict of Catherine II. The
expedition of Kreutzen, of the Imperial Navy, to Ouuimak Island in 1758 was
under commission of the same Sovereign. Upon the Report of the Committee of
Commerce and the recommendation of the Governor-General of Sil)eria in 1768,
Shelikof was granted a credit from the Public Treasury of 200,000 roubles to carry
forward his enterprises in North America. By a Ukase of Catlierine II in 1793
Missions of the Greek Church were established in the new dominion, and a Colony
was also founded in Kodiak under Royal Edict.

'ITie Russian Amei'ican Company.

The Charter of the Russian American Company issued in 1799 declares Russia's
dominion in the following language: " By the right of discovery in past times by
Russian navigators of the Northwestern part of America, beginning from the .55th
degree of North latitude and the chain of islands extending Irom Kamchatka to
America and Southward to .Japan, graciously permit the Company to have the use of
all hunting grounds and establishments now existing on the Northwestern

837 coasts of America, from the above-mentioned 55th degree to Bering Strait, and
on the same on the Aleutian Kurile Islands situated on the Northeastern Ocean."

In conclusion, the Charter enjoins : "All military and civil authorities in the above
mentioned localities not only not to prevent the company from enjoying to the iullest
extent the privileges granted but in case of need to protect them with all their
power from loss or injury, and render them, upon aijplication of the comx>any, all aid,
assistance and jirotectiou."

B S, PT XIII 7

98 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

This assertation of dominion by Russia was reiterated in 1820, when, by an Impe-
rial Ukase, Alexander I granted the second charter to the Russian American Com-
pany, renewing its privileges for twenty years, and was again asserted in 1844 by the
granting of the third charter, which not only increased the privileges of the com-
jiany, but also provided a system of colonial government lor the Russian American
colonies for the twenty succeeding years.

Russian Ordinance- of 1821.

All these assertions of jurisdiction and dominion ])assed unchallenged, but in 1821
the Imperial Government had issued s:a ordinance regulating traflic in its Asiatic and
American possessions, and reserved exclusively to subjects of the Russian empire
*' the transaction of commerce, the pursuit of whaling and fishing, or any other indus-
try, on the islands, in the harbors and inlets, and in general along the Northwestern
coast of America, from Behriiig Strait to the 51st Parallel of North Latitude, and in
the Aleutian Islands, and along the coast of Siberia and on the Kurile Islands from
Behring Strait to the Southeastern promontory of the Island of Urup — viz, as far
south as latitude 45 degrees and 50 degrees North".

This Ordinance called forth the protests of the United States and Great Britain,
and protracted discussions followed. A critical examination of the dii)lomatic cor-
respondence between the United States and Great Britain on one side and Russia
upon the other will disclose that the points in dispute in the controversy were the
assertions of Russia to exclusive jurisdiction over the Pacific Ocean, the assertion of
dominion over the coast of North America from the 55th parallel south to the 51st.
(See note of Mr. Adams, American Minister to Russia, to the Russian Minister March
1822.)

Following these discussions came the Treaty of 1824, between Russia and the
United States, and the analogous Treaty of 1825 between Russia and Great Britain.
By these Treaties Russia receded from her assertion of exclusive jurisdiction over
the Pacific Ocean, and abandoned her claim to possessions on the coast of North
America, south of 54° 40'.

The Treaty.

The following are the Articles of the Treaty between the United States and
Russia germane to the questions involved in the case:

Article I.

"It is agreed that in any part of the Great Oce.an, commonly called the Pacific
Ocean or South Sea, the resj)ective citizens or subjects of the High Contracting
Powers sliall be neitiier distuibed nor restrained, either in navigation or in fishiTig,
or in the power of resorting to the coasts upon points which may not already have
been occupied for the purpose of trading with the natives saving always the restric-
tions and conditions determined by the following Articles."

Article II.

With a view of ^
the Great Ocean by

preventing the rights of navigation and of fishing exercised uj»on
..^^ ^.^..v ^^^^^ oy the citizens and subjects of the High Contracting Powers from
becoming the pretext of an illicit trade, it is agreed that the citizens of the United
States shall not resort to any point where there is a Russian establishment without

the permission of the Governor or Commander, and that reciiirocally the sub-
838 jects of Russia shall not resort without permission to any establishment of the

United States upon the north-west coast.

Article III.

It is, moreover, agreed that hereafter there shall not be formed by the citizens of
the United Statics, or under authority of the said States, any establishment upon
the north-west coast of America, nor in any of the islands adjacent to the north of
54° 40' north latitude, and that in the same manner there shall be none formed by the
Russia subjects, or under the authority of Russia, south of the same parallel.

Article IV.

It is, nevertheless, understood that during a term of ten years, counting from the
siguitture of the present Convention, the ships of bodi Powers, or wliich belong to
their citizens or subjects respectively, may recipvocall^,• fre(iueut, without any hin-
drance whatever, the interior seas, gulfs, harbors, and creeks upon the coast men-
tioned in the preceding article, for the purpose of fishing and trading with the
natives of the country. (AVheatou's Internalional Law, vol. I, pp. 2-112.)

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 99

The Treaty betwoou Russia and Groat Britain contains substantially the same pi'o-
visions. Neither in the Treaties nor in the correspondence, is any reference made to
Russia's claim of dominion over the Bihring Sea. If in the diplomatic correspond-
ence leading n]} to the Treaty any clialleuge as to the jurisdiction of Behring Sea
had been made, why was it not settled by the Treaties? Did the High Contracting
Powers to these Treaties enter into a discussion lasting nearly two years as to one
matter and make adjustment by Treaty as to other matters f

The Convention between Russia and Great Britain aside from disposing of the
question of Russia's asserted sovereignty ov^er the Paciiic Ocean and fixing the
Southern limit of her possession on the western coast of Nortli America, also estab-
lished the dividing line of their respective North American possessions from 54.40
north to the frozen ocean, which boundary-line is incorporated verbatim into the
Ti'caty of Cession of 1867 from Russia to the United States. (Treaty of 1867,
Artitiel.)

If differences existed as to the dominion of the Behring's Sea, why were they
not also settled, as that manifestly would be a part of the object of holding the
Convention ?

liussid's jurisdiction.

It cannot be successfully maintained that by such terras as the "Great Ocean" the
"Pacific Ocean" or the " South Sea", the High Contracting Powers referred to the
Behring's Sea. Aside from this, it is stipulated in both Treaties that the ships, citi-
zens, and subjects of either Powers may reciprocally frequent the interior seas, gulfs,
harbours, and creeks of the other on the North American coast for a period of ten
years. The only interior sea on the North American Coast was the Behring's Sea
held by Russia. If that was a part of the "Pacific Ocean", or the "Great Ocean",
or the "South Sea", or belonged to the high seas under the law of nations, why the
term "interior sea" and why should the United States and Great Britain accept a
ten years' limit of the right of navigation, fishing, and trading in an interior sea if
they had the unconditional right to frequent those waters under the law of nations?

This section of tlie Treaty, therefore, really concedes Russia's dominion over Beh-
ring's Sea. Chancellor Kent alludes to this subject as the "claim of Russia to sov-
ereignty over the Pacific Ocean north of the 51st degree of latitude". (Kent Vol.
l,p.28.)

A summary of results following the discussions and Conventions as to the Royal
Ordinance of 1821 is the abandonment by Russia of her claim to sovereignty over
the Pacific Ocean; a surrender of her claim to the North American coast south of
54 degrees 40; a settlement by Russia and Great Britain as to the boundary-line
of their possessions in North America; agreements as to settlements upon
839 each other's territory and navigation of each other's waters, but no surrender
of Russia's jurisdiction over the Behring's Sea.

Powers of Congress.

Upon this branch of the subject, the power of Congress, over Behring's Sea, there
seems to be little room for discussion. The power of a nation to control its own
dominions is one of the inherent elements of sovereignty.

"When a nation takes possession of certain parts of the sea, it takes possession
of the empire over them as well as of the domain on the same principles which are
advanced in treating of the land. These parts of the sea are within the jurisdiction
of the nation and a part of its territory; the Soxereign commands them; he makes
laws and may punish those who violate them; in a word, he lias the same rights
there as on the land, and in general every right which the laws of the State allow
him". (Vattel's "Law of Nations ", p. fSO.)

Bv the Treaty of 1867, "the cession of territory and dominion therein made is
declared to be free and unencumbered by any reservations, privileges, franciiises,

grants or possessions and conveys all the rights, franchises, and privileges now

belonging to Russia in the said territory or dominion and the ajipurtenances thereto ".
(Treaty Article 6.)

The Constitution of the United States declares that all Treaties made under the
authority of the United States shall be the supreme law of the land. (Constitution
of the United States, Article 6.)

That same instrument vests in Congress "the power to make all needful rules and
regulations respecting the territory or other property Ijelongingto the United States ".
(Constitution of the United States, Article 4 section 3.)

Manifestly, the Acts of Congress contained in chapter 3, Revised Statutes of the
United States, "relating to the unorganized Territorj' of Alaska", and under Avhich
the information is brought, are embraced within these constitutional provisions.

100 OKAL ARGUMENT OF SIR CHARLES EUSSELL, Q. C. M. P.

Conclusion.

The foregoing record may contain but a meagre idea of the indomitable energy
and perseverance displayed by the Russian people in acquiring empire in North
America, beginning with discoveries of Behring in 1728, and extending for more
than a century and a quarter, wherein they braved the perils of land and sea, over-
came a savage native populatiou, faced ice and snow, storm and shipwreck, to found
and maintain empire on these rugged shores. P^nough has been said to disclose the
basis of Russia's right to jurisdiction of the Behriug's Sea under the law of nations,
A'iz., original possession of the Asiatic coast followed by discovery and possession
of the Aleutian chain and the shores of Alaska north, not only to Behring's Strait
but to Point Barrow and the frozen ocean, thus inclosing within its territory, as
within the embrace of a mighty giant, the islands and waters of Behring's Sea, and
witii this the assertion and exercise of dominion over land and sea.

Such is our understanding of the law, such is the record. Upon them the United
States are prepared to abide the Judgments of the Courts and the opinion of the
civilized world.

Senator Morgan. — Is there any dispute about tliatlong and histori-
cal resume found in that statement?

Sir Charliss Eussell. — I do not tliink anything which would need
criticism of it in any detail. I do not tliink it is historically'^ correct ia
some particulars, but I do not think they are of sufficient importance
to require notice.

Senator Morgan. — Generally it is historically correct.
Sir Charles Russell. — I should say so.
840 Mr. Phelps. — Perhaps it is only fair to my learned friends to

state that, upon any investigation we have been able to make, we
have no reason to suppose tliat that case was prepared by anybody
connected with the Government of the United States in Washington,
or used in that case.

It is telegraphed from Ottawa, and that is the first and all that Ave
know about it.

Sir Charles Russell. — Then I must say this is the most extraor-
diuary case of a forgery that tlie world has ever known.

Mr. Phelps. — I do not mean to say that it was a forgery. It was
not used in the case, so far as we have learned.

The Tribunal here adjourned for lunch.

The President. — Sir Charles, if you will continue your argument,
we are ready to hear you.

Sir Charles Russell. — Mr, President, I am not surprised, nor do
I in the least complain, of the interj)osition of my friends at the point
at which the discussion broke off. It is a very important point indeed
to ascertain whether this is a genuine brief, and important also, although
not so vitally important, to ascertain whether it was prej)ared at
Washington. But whether it was prepared at Washington or Avhether
it was prei)ared elsewhere, it was prepared by the Counsel who were put
forward to represent the views and the contentions of the United States,
and to formulate the grounds of fact and of law upon which those views
were based, and by which they were to be defended.

Senator Morgan. — Are the names of those counsel given. Sir
Charles?

Sir Charles Russell. — Yes: Mr. A. K. Delaney; and I will only
say that it is obvious upon the face of the document itself that it was
prepared not oidy by a man of considerable ability, but by a man who
had devoted considerable research and thought to the subject, and one,
moreover, who had access to official documents and records in the
preparation of this "brief" to be laid before the Court; and certainly
it is a very high testimony to the ability of the counsel in this rather
out of the way place, if, without instructions from Washington, and

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 101

without having the materials for this argument put at his disposition
from Washington, he was alHe to frame so exceedingly good a one.
But I hardly think he could, without authority from "head quarters",
if I must use that expression, have ventured to speak in the way he
has done of these contentions unless he was so authorised, for he con-
cludes with these Avords :

Snch is our understandiTijx of the law, sncli is the record. Upon them the United
States aie prepared to abide the judomeuta of the Courts and the oi)inion of the
civilized world.

l!^ow I wish to put this Tribunal in full possession of how this brief

has been introduced into our Case: how it has beeu drawn to the

attention of the United States Counsel, and how they have

841 dealt, or rather lailed to deal, with it. In the first instance it is

introduced into the original Case of Great Britain. You will

find it, Mr. President, at page 127.

The Counsel appearino- for the United States Government, to justify the seizure of
the "Anna Beck" and other vessels in 1889, filed a brief, from which the following
extracts are taken.

Now in the margin you will see that we refer to the documents from
which that is originally taken, namely the Blue Book — that is to say,
the parliamentary Blue Book of Great Britain — and also to Appendix,
vol. Ill — the large volume from which I have been reading it this
morning.

But I am now in a position to inform you that, we have actually in
this building, at this moment, the gentleman who forwarded that very
document to the "New York Herald". The "New York Herald", as I
have said, and as you know, is a ]>aper of some importance. It appears
to be published in the "New York Herald", with the statement that it
is understood to have been prepared in Washington — a statement never
denied; and the gentleman is prepared to state — he will be put on any
affirmation that the Court think desirable — that he received that as the
brief prepared at Washington from the gentleman who represented the
Government of the Queen watching the proceedings, who, in his turn,
stated that he had received it from the Counsel engaged in the case; and
therefore I think the chain of evidence is rather complete upon the point.

Senator Morgan. — You mentioned a fact. Sir Charles, that I was
not aware of before. You speak of the Counsel representing the Gov-
ernment of the Queen in these cases.

Sir Charles IIussell. — He was watching the proceedings.

Senator Morgan. — In these cases?

Sir Charles Eussell, — So I have been informed.

Senator Morgan. — In Alaska?

Sir Charles Russell. — So I have been informed. But the matter
does not stop there. I i)roceed to the next stage. I find this very docu-
ment referred to in another place. I must trouble the Tribunal to refer
for a moment to page 279 of vol. Ill of the Appendix to the British Case,
and you will see the document headed Appendix, No. 2:

Extract from the Report of the Governor of Alaska for the Fiscal Year 1887. Pro-
tection of fur-seals:

In connection with these seizures, from which it seems to me no other inference
can be drawn than that our Government is determined to assert and maintain the
right of exclusive jurisdiction over all that portion of Behring's Sea ceded to it by
Russia, I can only reiterate that part of my last Annual Report, in which I essayed,
rather feebly I fear, not only to show the necessity of such a policy to the preserva-
tion of the sea-fur industry, but the wrong its abandonment would inflict upon the
very considerable number of native people who wholly or in large part depend upon
it for a livelihood, and whom, it appears to me, it is the duty of the Government co
protect.

102 ORAL ARGUMENT OP Sift CHARLES RUSSELL, Q. C. M. P.

In view of tlio fact that tbe seizure of these vessels and tlieir forfeiture has raised

au international ((nestion of grave iniportanee, I have thonjjht it proper to include

■\vitli this Report a copy of the brief submitted by the Queen's Counsel in

842 the case of the IJritish schooners, together with the argument of the United
States attorney and the opinion of the Court.

Honourable A. K. JUelaney, Collector of Customs having been designated as special
Counsel on account of the illness and subsequent death of Colonel M. D. Ball,
United States District Attorney, represented the Government and made what I think
will be generally conceded a most able and forcible, if not wholly unanswerable
argument.

So that tliis gentleman making his Official Eeport as Governor of
Alaska forwards also a copy of this docnment, and any difficulty or
difl'eience that arises between my friend and myself upon the complete
authenticity and reliability of the "brief" we have cited, would of course
at once be removed bj' the i)roductiou of the document which the Gov-
ernor of Alaska enclosed. If my friend can produce it, I think it will be
found that the two documents are, verbatim et literatim, in agreement.

Senator MoRG-AN. — Sir Charles, lam not sufficiently familiar with
the proceedings of the British or Canadian Tribunals, to ascertain with-
out enquiry from you, what is meant there by the brief of "the Queen's
Counsel".

Sir Charles Russell. — It clearly means that he was the Counsel
representing the case of tlie British owners of schooners.

Senator Morgan. — That means Counsel appearing for the Govern-
ment.

Sir Charles Eussell. — IS'o; it means a Counsel who is a "Queen's
Counsel", just as my friend is a "Queen's Counsel", and as I am.

Senator Morgan. — It is the description of his position in the pro-
fession?

Sir Charles Eussell. — It is the description of the position in the
profession of the Counsel in the case of the British schooners.

Now I am going to refer to that brief. The brief in answer to the
case on the part of the United States is to be found in the same book —
that large volume — page 100; and as 1 understand the procedure in
the Court upon this point — 1 am speaking without certain knowledge
upon it, and I should therefore be glad to be corrected, but 1 gather
from what appears, and from other information, that the course is that
stated by my learned friend Sir Eichard Webster, namely, that the pro-
ceedings originate in a libel or summons, and that, after that, the counsel
for the Libellant tiles his Brief, or what we should call in Great Britain
"Statement of Claim"; that being filed, the other side tiles, in his turn,
his "Brief", which is the answer which the Defendant puts forward to
the Statement of Claim; and, accordingly, the Brief on behalf of the
owners of the schooners, and filed in the Court, is set out at page 100
of that large volume. I am not going to trouble the Court to read it,
but I wish to show that the person who prepared this brief had before
him the Brief on the part of the Libellant, because he follows the various
grounds, which he takes one by one— very much shorter — (as an answer
generally speaking is shorter than the original allegation which is
traversed) — very much shorter, but taking up all the points.

843 Senator Morgan. — I think what you call a " Brief", we call a
" Libel" or " Information ".

Sir Charles Eussell. — It is variously phrased, " Case", "Factum",
" Statementof claim", " Declaration ". There are varying phrases for it.

Senator Morgan. — The proceedings on the part of the Claimant we
should term here an " Intervention", if there is an Intervention.

Sir Charles Eussell. — In this Brief (which I do not propose to
trouble the Court by reading) he proceeds to state, in the first paragraph,

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 103

under what section the vessels in question are seized, these vessels
being- the "Anna Beck", the "Dolpliin", the "Grace" and the "W.P.
Say ward". Keferring then to tlie statutes (with which I do not trouble
the Tribunal), he then refers, in the next paragraph, to the " Rights of
Great Britain and the United States ", respectively. He next passes to
the consideration of" A Treaty with Russia"; next to " Russia's Claims ";
next to the "Authorities quoted", dealing actually with the authorities
cited; then he deals with "Mr. Secretary Seward's views", which you
will recollect my friend read at some length; and, finally on page 102,
he sums up the matter, and gives his short answer to it very clearly,
and, as I think, also very concisely. He says:

It also appears that the United States, in claiming sovereignty over the Behring
Sea, is claiming something beyond the well recognized law of nations, and bases her
claim upon the pretentions of Knssia which was successfully repudiated by both
Great Britain and the United States.

A Treaty is valid and binding between the parties to it, but it cannot affect others
who are not parties to it. It is an agreement between nations, and would be con-
strued by law as an agreement between individuals. Groat Britain was no party to
it, and therefore was not bound by its terms.

It is therefore contended tbat the proceedings taken against the present defendants
are ultra vires and without jurisdiction. But in order to press the mutter further, it
may be necessary to discuss the act itself under w^hich the alleged jurisdiction is
assumed.

Thereupon he proceeds to point out, very much on the lines I have
been submitting to the Court, that there is nothing in the words of the
statutes which necessarily include foreigners, and that according to
proper j)rinciples of construction they ought not to be construed as apply-
ing to foreigners outside the territorial limits. He then concludes in
these words :

So here it is submitted that a decree of yonr Honour's Court will not give any
validity to the seizures here made, and the defendants, in tiling their demurrer and
submitting this argument, do not thereby waive their rights, or submit to the juris-
diction of the Court.

Now finally 1 have to say that, as it has been so cited in the original
Case, and set out at length in the documents which form part of the
Ajipendix to the Case, it comes upon me a little by surprise, it is a little
remarkable, that at this late stage of the controversy this contradiction
should be suggested. I quite understand Avhy my friends feel pinched
by it, because the position is one absolutely impossible, if not ridicu-
lous, for a great Power which has formulated its grounds of jus-
844 tification, and said : Upon these grounds I abide by the judgment
of the Court, and by the judgment of that greater Court, the
opinion of the civilized world : for it then to say : These are not the true
grounds at all; the real grounds were something entirely different from
these.

Although up to this moment the Tribunal will not have seen any trace
of the affirmation of this simple ground, if it were present in tlie minds
of any of the ingenious and well iearned advisers of the United States,
that all this reference to Statute law was \vholly beside the question :
We were but exercising our inherent rights of protection of property
and ])roj)erty interests given to us by the consent of the civilized
world — in other words, given to us by the law of nations.

Well, but let us see what was the ground upon which the judgments
proceeded.

Senator Morgan. — If both grounds had been stated in the libellant's
case there would have been no repugnance between them.

Sir Chaeles Russell. — Repugnance as to what?

104 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Senator MoRCrAN. — To it being stated in the libel or information tliat
tlie United States claimed a riglit under the laws of nations 5 and also,
that it was possessed of a property right.

Sir Charles Kussell. — You mean to say if they had said we are
complaining- of a breach of the municipal Statute, and also complaining
of a breach of law of property?

Senator Morgan. — Yes.

Sir Charles Kussell. — Certainly there would have been a repug-
nance: I shall presently have to deal with that.

Lord Hannen. — I suppose you are pointing to this: If it had been
simply a seizure by virtue of this right of property, or protection of
property, there would have been no right to fine.

Sir Charles Eussell." — Much more than that, my Lord : but to that,
amongst other reasons. There would have been no right to tine; and
the court that would have had the right to adjudicate upon a claim of
that kind would not be sitting as a Municipal Court — a Court belonging
to Alaska in the United States, — but would be sitting as a Prize Coiu-t
representing the whole world. That is tlie real vital distinction; and
the distinction that my learned friend Mr. Carter in his ingenious
attempt to base the judgment, or justify the judgment, of this "Two
penny-half penny" judge — as my friend in a moment of forgetfulness
called him — is wholly futile. He has entirely forgotten that a Munici-
pal Court, as such, does not administer International Law at all; It has
to administer the law of the State, and the law of the State only.

Senator Morgan. — That was a United States Court?

Sir Charles Russell. — Yes. I intended, in a moment or two, to
develope this idea, but as it is mentioned, let me just say a word upon
it in passing. I am not concerned to dispute that the Sovereign Power
at whose instance a capture is made upon the high seas may not con-
stitute a Municipal Court, 2^ro hac vice, a Prize Court; but accord-
845 ing to its original constitution and functions it is a Municipal
Court having no cognizance of any law except Municipal law,
and International law so far as it enters into Municipal law, but no
further. To enable it to adjudicate as a Prize Court, it must be brought
to the apprehension of the Judge that he is no longer in a United States
Court administering the municipal law — that he must shut his eyes to
Municipal law, and that he is administering International law in the
interests of all nations. The distinction is broad, clear, unmistakable
and intelligible. But I am i^roceediug still on the theory that he did
not affect to act, that he was not asked to act, in any other character
than as a municipal Judge construing a municipal statute, and for that
purpose of course it is necessary to examine the judgment itself. The 1
judgment is to be found on page 113.

The President. — This is on your point of fact that you are arguing
all tins'?

Sir Charles Russell. — Yes.

The President. — I understood that from the principles you laid
down when you began this part of your argument?

Sir Charles Russell, — Quite so. The judgment of Mr. Justice
Dawson is to be found at page 113 of Volume I of the
judgei>^wsoii. °*^ -A^ppendix to the American Case. I will not read this
judgment because it goes over the same ground as the
later judgment which I desire to have read more fully. It relates to
the seizures effected in 1880. He is addressing the jury, and telling
them that the information is preferred and filed by the District Attor-
ney, based uijon an affidavit charging the Defendants with having

ORAL AKGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. l05

killed ii certain number of seals and other fur-bearing- animals; in the
Avaters of Alaska, contrary to the provisions of section 1D5G of the
Eevised Statutes. He then proceeds to say that it is the duty of the
Court to instruct the jury as to the law applicable to the facts, and that
it is their duty to find the facts. Then he proceeds to say:

For the purpose of aiding yoii in yonr deliberations, I will define to you the west-
ern bouudury line of Alaska as designated and set forth in the treaty of March 30, 1867.

He refers to that Treaty, and then he proceeds.

All the waters within the boundary set fortii in this Treaty to the western end of
the Aleutian Archipelago and chain of islands are to be considered as comprised
within the waters of Alaska, and 4^11 the penalties prescribed by law against tbe
killing of fur bearing animals must therefore attach against any violation of law
witliiii the limits before descriltcd.

If, therefore, the jury believe from the evidence that the defendants by themselves,
or in conjunction with others, did, on or about the time charged in the iuforuuition
kill any otter, mink, marten, sable or fur-seal, or other fur bearing animal or animals
on the shores of Alaska, or in Bchriug Sea, east of the one hundred and ninety third
degree of west longitude, the jury should find defendants guilty.

Then I skip one passage, and proceed.

The jury are further instructed, as a matter of international law, that it makes
no difference that one or both of the accused parties may be subjects of Great liritain.

Russia had claimed and exercised jurisdiction over all that portion of Beh-
846 ring Sea embraced within the boundary lines set forth in the Treaty, and that

claim had been tacitly recognized and acquiesced in by the other maritime
powers of the world for a long series of years prior to the Treaty of March 30th, 1867.

Then he proceeds to set out, a little more fully, the terms of that
Treaty, and then goes on to say that thereby America acquired absolute
control and dominion over all the rivers, and so forth; and finally,

And British vessels manned by British subjects had no right to navigate the waters
before described for the purpose of killing any of the furbearing animals heretofore
designated.

Then the Jury are further instructed that on the 3rd of August the
Act of Congress of 1870 was passed, that the lease was made, and so
forth ; and then the question of lact which is left to the jury is one with
M^hich he might have hardly troubled them, whether or not they were
engaged in sealing to the east of what has been, for brevity, called the
line of demarcation. So much for the judgment of 18S(>. The judg-
ment of 1887 is on page 115, and the material parts of it, at least, must
be read, and I will, therefore, with your j)ermission, ask my learned
friend to read it.

Sir liiciiAKD Webster. — 1 will read it shortly. It is in the case of
four ships, the '' Dolphin", the "Anna Beck", the "Grace", and the
"Ada".

The libel of information in the case of the schooner "Dolphin" is similar to the
informations filed against tlie other schooners named, and alleges that on the 12th
day of .July, 1887, the conuuandiiigoihcer of the United States revenue cutter "Rush"
seized the schooner "Dolphin'' in that portion of Behring Sea which was ceded to
the United States by Russia in the Treaty of March, 1867. That said schooner was
violating section 1956 of the Revised Statutes in relation to the protection of seal life
in the waters of Alaska. To the libel of information the Queen's counsel of British
C(dumbia filed a demurrer, alleging that the district court of Alaska had no juris-
diction over the subject matter of the action, for the reason that the schooner was
more than one marine league from the shore when seized, and that the Act of Congress
of July 27tb, 1868, is unconstitutional, in that it restricts free navigation of the Beh-
ring Sea for sealing purposes. Astipulation, signed by the Queen's counsel Mr. M. W.
T. Drake, upon the part of the Britisli owners, and Mr. A. K. Delaney upon the part
of the United States, was filed, in which it was agreed and conceded that the masters
of the vessels named were taking fur-seals in that portion of Behring Sea which is
claimed by the United States under the Treaty with Russia of March, 1867.

106 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

The issue ns presented involves an examination of a most pertinent and critical
question of inteniatioiial law. It will be necessary to ascertain, tirst, the right of
the Inijierial (joverinueut of Russia to tiie Behring Sea anterior to the Treaty of
March, 18U7, and for inlonnation upon this subject I am larf^ely indebted to Mr. N.
L. .Jetiries for a collection and citation of authorities and historical events, and for
the want of books at my comnuind upon this question, I am compelled to rely for
historical facts upon his carefully prepared brief. From this elaborate brief I glean
the following facts.

Then he describes the Sea of Kamschatka. He describes how Peter
the Great in the early part of the Eighteenth Century directed the
exploring expedition ; the Court will be able to follow tlie dates. He
talks of the expedition of 1725, and the expedition of 1728; and
the discovery of the Island of Saint Lawrence; and the expedition

of 1741.
847 Sir Charles Russell. — Those are the events mentioned in

the brief, which we have not read in full, and which are referred
to in the order that the Judgment refers to them.

Sir EicHARD Webster. — The vessels were the " St. Paul " and the
" St. Peter"; and, on the 18th of July 1741, Behring first saw the Con-
tinent of America. And he describes Behriug's visit.

The enterprising spirit of Russian merchants and traders even in Siberia was
awakened by the accounts given of the industries that might be created.

The President. — That brief was the practical foundation of both
judgments of 1886 and 1887, was it not?

Sir EiCHARD Webster. — Yes. At page 117 he refers to the Ukase
of the 27th December, 1799, and then reads from Mr. Chief Justice
Marshall's judgment in JoJmson v. Mcintosh:

On the discovery of this Immense continent the great nations of Europe were eager
to appropriate to themselves so much of it as they could acquire.

Then he refers to Chancellor Kent.

All that can be reasonably asserted is that the dominion of the sovereign of the
shore over the contiguous sea extends as far as is requisite for his safety, and for
some lawful end.

And then he refers to Vattel, and then, at the top of page 118, he
proceeds.

The Queen's counsel lays much stress in his argument upon the fact that both the
United States and Great Britain treated with Russia (the United States in lN2f , and
Great Britain in 1825) in relation to the free use of the waters in Behring Sea, and it
is claimed that by these Treaties the sea was thrown open as the common property
of mankind. But an^examination of these Treaties and the objects in view by the
three great Powers fails to warrant the conclusion reached in the argument. The
principal parts of the Treaty between the United States and Russia, the treaty
between Great Britain and Russia being similar, are thus set forth by Professor
Wharton;

And he reads Articles 1, 2, 3, 4, and 5 of the Treaty of 1824. And
at the bottom of the page he continues:

Nations, like individuals, have the right of contracts, and their treaties are sub-
ject to the same rules of interpretation and of morality which govern in municipal
law.

"Estopped" in law is a term, the etymology of which implies the preclusion of a
person from asserting a fact by previous comluct, inconsistent therewith, on his own
part or on the part of those under whom he claims. It is in law a prohibition whicli
denies a man the right of alleging or denying a fact in which he has with a full
knowledge long acquiesced. Applying this rule the conclusion can not be escaped
that in consequence of the acquiescence of Great Britain in the claim, jurisdicton,
and dominion of Russia to what is now known as Behring Sea since the expiration
of the Treaty of Russia and Great Britain in 1825, which was to exist ten years. Great
Britain and her Dominion Government, of which British Columbia is a part, are
estopped from any claim of righ t or privilege of taking fur bearing animals in Behring
Sea, east of the line mentioned as our western boundary in the Treaty.

ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 107

848 Then lie mentions the western boundary, which is the line on
the map, and then proceeds at the bottom :

The courts have the same right and power, when called npon to interpret a public
Treaty, to derive aid from contemporaneous interpretation, and by ascertaining the
intention of those whose duty it is, under the Constitution, to make Treaties, as they
have in the interpretation of any other law. What then was the object in purchas-
ing Alaslca? Manifestly to extend our Northwest bouudiiry line so as to include the
■whole group of the Aleutian -islauds.

Then he refers to Senator Sumner's speech, and then:

Subdivision 2 of section 2 of the Constitution in defining the powers of the Presi-
dent says.

He sliall have power, by and with the advice and consent of the Senate, to make
Treaties, provided two-thirds of the Senators present concur.

Then:

Judge Story, in considering this clause of the Constitution, says: It will be
observed from this that the power to malce treaties is by the Constitution general,
and, of course, it embraces all sorts of treaties for peace or war, for commerce or
territory.

Then :

It is argued that this question belongs to the political department of the Govern-
ment, and that it should be there adjusted, Vnit this position is, I think, wholly
untenable, at least at this stage of the controversy.

Then the learned Judge cites Story on the question of making
Treaties; and then I had better read at the bottom of page 120.

Congress recognized the right of the United States to the whole of the new acqui-
sition by appropriating $7,200,000 to pay for the new territory, and on the 27th day
of July, 1868, extended the laws of the United States relating to customs, commerce,
and navigation over all the mainland, islands and waters of the territory ceded to
the United States by the Emperor of Russia. [See Revised Statutes, sec. 1954.]

Showing unmistakably the understanding of the Government at the time as to
what had been acquired, and that our boundary line was located at the one hundred
and ninety third degree of west longitude. The longitude of a place is the arc of
the equator intercepted between the Meridian passing through that place and some
assumed meridian to wl)ieli all others are referred. Different nations have adopted
different meridians. The English reckon from tiie Royal Observatory at Greenwich ;
the French from the Imperial Observatory at Paris, and the Germans from the Observ-
atory at Berlin, or from the island of Ferro. In the United States we sometimes
reckon longitude from Washington, and sometimes from Greenwich. But in estab-
lishing the western boundary line of Alaska the reckoning of longitude was from
Greenwich, which reaches the Hue divitliugthe Continents of Asia and North America.

The purchase of Alaska was unquestionably made with a view to the revenues to
be derived from the taking of fur-seal in the waters of Behring Sea, and especially
on the Islands of St. Paul and St. George, both of which were, by Act of Congress of
March 3rd, 18(59, made "a s))ecial reservation for Government purposes".

Secretary Seward was a skilled diplomat, a learned man in statecraft, and he evi-
dently foresaw the income to be derived by the Government from the seal industry
on and adjacent to those islands. Hence, in the negotiation he insisted upon,

849 and Russia conceded, tliat our boundary line should be extended to the meridian
named in the Treaty. The industry and consequent revenues would be hope-
less without the residuary power of the United States to protect and regulate the
taking of fur-bearing animals in that part of our domain. The effort of the United
States to seize and drive out the illicit piratical craft that have been navigating
those waters for years, indiscriminately slaughtering fur-bearing animals, the con-
tinuation of which can but result in the wanton destruction of the rookeries, the most
valuable in the world, is a legitimate exercise of the ]>owers of sovereignty under
the law of nations, with which no nation can lawfully interfere.

The question of the constitutionality of the Act of Congress of July 27th 1868
(Revised Statutes, page 343), scarcely deserves notice, since it has been sustained by
this court.

The conclusion I have reached is that the demurrer must be overruled, and it is
so ordered; and that judgment of forfeiture to the United States be entered against
each of the vessels separately, together with their tackle, apparel, furniture and
cargoes, saving to the masters and mates their private property, such as nautical
instruments and the like.

108 01? AL AtiGUMENT OF SIR CffARLES RUSSELL, Q. C. M. i».

Sir CiiArwLES Uussell. — T tliiuk there can be little doubt, at least I
submit there can be little doubt, that I am now warranted in assuming
that the Tribunal, having followed this argument, cannot fail to have
arrived at this clear conclusion: that these vessels were seized for a
supposed breach of a nuinicipal Statute, that the men were imprisoned
by the judgment of the Court, and that the confiscation of the vessels
seized was part of the penalty attached by the municipal law for this
breach.

Now, I liave a word to say, before I ask the Court's i^erraission to sum
up the general conclusions, about the character of the Court itself. It is
a municipal Court administering the municipal law, part of which munic-
ipal law undoubtedly is, as far as it enters into municipal questions,
international law. But a Prize Court is a distinct Court, with distinct
functions ; not acting upon municipal law but shutting its eyes to munici-
pal law altogether as sucli; deriving its authority, no doubt, from the
appointment of the Sovereign Power that has caused the marine capture
. . to be effected, but although deriving its authority from that
betweVn^ Prize crcation, from the moment that it has created it it ceases
nfci'li Courts ^^^^ be a municipal Court. 1 should have thought these
things were almost elementary in the subject, but as my
learned friend, Mr. Carter, did not appear even to think it necessary to
consider what must be the character of an international Court if its
decree is to be regarded as a judgment of an international Court, I must
call the attention of the Court briefly to some authority upon the subject.

1 cite the work well-known in England and, I think, not unknown iu
America, Manning's "Commentaries on the Law of Nations"; and the
edition from which I cite is the one publi.-^.hed in 1875 by Mr. Sheldon
Amos, himself a writer of distinction, a member of the Bar and Pro-
fessor of Jurisprudence at University College, and Lecturer on Inter-
national Law to the Council of Legal Education of the Inns of Court
in London; and on page 472 he says:

Questions of maritime capture are adjudged by Courts specially constituted for
that purpose. The form of these t'ourts is different in different countries, but in all

they are distinct from tlie municipal tribunals of the country and are comniis-
850 sioned to decide according to the law of nations, including the engagements

of treaties where any such exist.

I need not stop to point out that, as between two countries who have
entered into a treaty which gives to the two Powers, parties to the treaty,
rights, among others it may be rights of capture, those treaties consti-
tute as between those Powers, and as binding upon them, a portion of
international law. Ordinarily speaking. Prize Courts have to deal with
a state of belligerency; as, for instance, where, in the struggle for mas-
tery, one Power seeks to obtain possession of the property and the
resources of another, or where one Power seeks to get hold of contra-
band of war,'\yhich,if obtainedby its opponent, would be of importance
to that opponent in the fight: or, again, questions of seizure for running
a blockade — questions, which would arise when the ship was brought
into the Prize Court, whether the blockade was effe(;tive, questions
whether the blockade had been properly notified, and other questions
of that description. Ordinarily, therefore. Prize Courts have to do with
a state of belligerency, not exclusively, but the main exception — I will
not undertake to say the sole exception, though I know no other — is
cases of capture, where quasi-belligerent rights are exercised or exer-
cisable under treaty as between particular Powers; thus, for instance,
assuming there is a Slave Trade Treaty between the United States of
America and Great Britain by which rights of search are conceded to

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 109

the respective Powers, and tbe riglit of seizure of vessels engaged in
carrying on that trade, a seizure effected by one or otlier of the Powers
brought into a Prize court, the question in that case woukl not be
whether, according to the general intern ational law, the seizure was
justifiable and confiscation ought to follow, but whether by interna-
tional law, plus the provisions of this treaty, the particular property
had or had not been justifiably captured.

Mr. Justice Harlan. — It may assist you in your argument. Sir
Charles, for me to suggest that this Court in Alaska has jurisdiction
which is defined by an Act of Congress, as it exercises only such juris-
diction as the Act creating it authorizes.

Sir Charles Kussell. — That is my point. I am obliged to you,
Mr. Justice Harlan, for mentioning it.

Lord Hannen. — Have you got the Act"?

Sir Charles Russell. — I have not, but my learned friends can place
it at our disposition.

Mr. Phelps. — They have prize jurisdiction under the general judi-
ciary Act.

Sir Charles Eussell. — I should like to see it.

Mr. Phelps. — We will bring it in.

Sir Charles Russell. — I began, early in my observations, by saying
I did not stop to consider the question whether or not a municipal Court
might or might not be constituted a Prize Court. My point here is that
it was not invoiced as a Prize Court; that no proceedings of any
851 kind which bear the faintest resemblance to proceedings in a prize
suit were instituted. It cannot be at one and the same time per-
forming the functions of a municipal Court and of an international
Court. The two positions are repugnant and inconsistent the one with
the other. In the one, the judge is administering the municipal law,
and in the other he shuts his eyes to the municii)al law and administers
international law and international law alone.

Senator Morgan. — You say that you could not embrace both grounds
of forfeiture in the same Information.

Sir Charles Russell. — Unquestionably that is my contention.
That is made clear if the Tribunal will bear with me a little longer, in
the same book, at page 479, where the point is further discussed.

For the history and true limits of the jurisdiction of the English High Court of
Admiralty in prize cases, see Lord Mansfield's judgment in Undo\. Jlodney and another,
cited in a note to Le Caux v. Eden, Uouglas' Kei)orts, volume II, page 594. His lord-
ship distinguishes the functions of the judge of the court under his general com-
mission and those under a special commission issued only in time of war. This
distinction gives rise to the two aspects of the Court of Admiralty, that of an
''instance" court and that of a " prize'' court.

Tou will recollect I called attention yesterday t-o the language in rela-
tion to this particular Court which pointed to it being regarded as an
" Instance" Court and a Court of original jurisdiction.

"The manner of proceeding", says Lord Mansfield, ''is totally different. The
whole system of litigation and jurisdictiou in the prize court is peculiar to itself;
it is no more like the Court of Admiralty than it is to any court in Westminster
Hall." By the Naval Prize Act of 1864, which recited that it was expedient to "enact
permanently, with amendments, such provisions concerning naval prize and matters
connected therewith as have heretofore been usually pas*sed at the beginning of a
war" the Higli Court of Admiralty has jurisdiction given it throughout Her Maj-
esty's dominions as a prize court^ aud an appeal is given to the Judicial Committee
of the Privy Council.

I point out that that is very much like the case my learned friend
suggests; that this is a Court which has i^ower to act as a Prize Court

110 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Tinder the Act of Congress, because under the Kaval Prize Act of 18G4
there is given to the Court of Admirality powers to act as a Prize
Court. Now he inoceeds.

The tine fuiK'tioiis of a prize court are curtlj' expressed by Lord Mansfield in the
conrse of the judgment above referred to. " The end of a prize Conrt is, to sus-
pend the projierty till condemnation; to punish every sort of misbehaviour in the
captives; to restore instantly, ce/is Icvatis (as the books express it, and as I have
often heard Dr. Paul fiuote), if, ujion the most summary examination, there don't
appear sutticieut ground; to condemn finally, if the goods really are prize, against
everybody, giving everybody a fair opportunity of being heard. A captor may and
must force every person interested may force him to jn'oceed to condemn -without
delay".

And Lord Stowell says:

It is to be recollected that this is a court of the Law of Nations, though sitting
here under the authority of the King of Great Britain. It belongs to other nations
as well as to our own; and what foreigners have a right to demand from it is
852 the administration of the Law of Nations, simply and exclusively of the intro-
duction of principles borrowed from our own municipal .iurisprudence, to
which it is well known they have at all times exjiressed no inconsiderable reluctance.

Let me repeat those Avords :

And what foreigners have a right to demand from it is the administration of the
Law of Nations, simply and exclusively of the introduction of principles borrowed
from our own municiijal jurisprudence:

Then:

In forming my judgment, I trust that it has not for a moment escaped my anxious rec-
ollection wliat it is that the duty of my station calls from me, namely, not to deliver
occasional and shifting opinions to serve present purposes of particular national
interests, but to administer with indifference that justice which the Law of Nations
holds out without distinction to independent States, some happening to be neutral
and some belligerent; the seat of judicial authority is indeed locally here, in the
belligerent country, according to the known law and practice of nations; but the
law itself has no locality.

Now, I have further to point out that it is imi)ossible — even if it had
been before the learned Judge it would have been iini)ossible — for him
upon the grounds now advanced to have entered upon the question in
any other light than that in which he did enter upon it, namely, the con-
struction of this municipal Statute. Why? It is now said — and let
there be no doubt about the clearness of my enunciation of what is
now said — that the right of the United States is based upon the fact
of property in seals; property in, and industry founded upon, seals;
that that property right or interest carries with it furtlier the right to
do whatever in the judgment of the nation is reasonably necessary any-
where — everywhere — to protect that i^roperty and that property right.
That is the allegation. Let me point out that nowhere was that ever sug-
gested until the parties were preparing to come here to put this case
before you; that their case has been from the first based upon a right
restricted in a defined and local area. They say that this Statute is the
equivalent of an international regulation for the protection of their
own rights. It cannot be so treated. If it is a right that is incident
to property, it must follow property wherever property is: but this
international regulation embodied under this municipal Statute applies
to a defined area, the part of the Behring Sea east of the line of
demarcation.

I sum up therefore the whole of my argument on this point by invit-
ing this Tribunal to find, first, the fact of these seizures; next, the fact
that they were seized by the authority of the United States; next, that
they were seized for breach of a municipal Act, aiul for that cause
only; next that the judgment was claimed, and the judgment was

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. Ill

based, upon a breach of that municipal Statute only, and that that
niiinicipal Statute purported to prevail and to be effective in a defined
area.

If these facts are found (and I have already undertaken to formulate

them in a more precise way and to put them in writing for the Tribunal)

the conclusions are inevitable that these seizures were unwarranted:

that they were an attack upon the equality of Great Britain on

853 the high seas : that they were unwarranted by the law of nations,
the ships of Great Britain on the high seas being part of the

territory of Great Britain: and that an offence has been thereby com-
mitted against international law, and against the sovereignty of the
Queen, for which we are entitled to demand adequate and just
compensation.

Let me guard against a possible misapprehension. The Tribunal
will understand that so far I am arguing upon tlie question. Were these
measures justifiable or not. JMy argument has tended to show that
they were not justifiable on the grounds that were then advanced.
My argument has further tended to show that even if there were such
a right in respect of property — such a right of i)rotection as is now
advanced — that that right cannot be invoked in justification of these
seizures. The conduct of the United States, the whole teuour of their
proceedings, prevents them from being entitled to raise any such ques-
tion as a justification for such seizure.

But I wish the Court to understand that I do not thereby mean to
say that they are shut out from tlie discussion or the claim of that
right. When I come to the larger, the general question, — I have been
confining myself, of course, to the question of seizure, as I hope the
Tribunal understands, — when I come to the question in its proper order,
I will discuss whether any such right exists, and what will be the
sanction which by international law, if it existed, could be brought
into use in supjjort of that right.

Senator Morgan. — 1 believe, Sir Charlos, you do not claim that the
United States is estopped by that decision from going fully into the
question.

Sir Charles Kussell. — Xo; that is exactly what I want to convey.
I say as regards the question of the justification for those seizures, the
United States are not estopped from raising the general question which
the Tribunal has to decide.

Senator Morgan. — Then why are they estoijped on the question of
seizure, if you did not take an appeal?

Sir Charles Kussell. — Because they did not profess to act accord-
ing to international law; because they did not act according to inter-
national law; because the Court was not an international Court;
because it did not profess to be an international Court; because the
case of the United States was put on a different ground, and the Judge
acted on a different ground. But 1 do not suggest that they are
estopped from arguing the general question when it comes in the order
of these questions which the Tribunal has to decide.

Tlie President. — 1 suppose you admit that in case the seizures were
to be authorized or could be authorized, in your opinion, by other
grounds than those indicated in the Judgment, you would not consider
that we should be bound to declare the United States answerable?

Sir Chakles ILl'ssell. — I certainly do. Sir. As regards the seizures
which have actually taken i)lace I contend that the United States

854 must rely upon the case they have themselves presented, and
which they have themselves made the basis of the Judgment

they invoked from the Court.

112 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Senator Morgan. — If there was an error in the Judgnient of the
Court, you had your right of appeal to correct it.

Sir Charles Kussell. — Except that, as a matter of fact, there was
110 right of appeal.

Senator Morgan. — None?

Sir Charles Eussell. — 'No. If that be questioned, I can refer to
the fact. We gave notice of a])penl, and it turned out that the judicial
arrangements were in a somewhat rude state in Alaska, and there was
no Court to wliich it could be had at that time.

Senator Morgan — The case was not beyond the power of prohibition.

Sir Charles Kussell. — Now you are touching upon a thorny sub-
ject, on which men may well difler. I can only say it was thought by
those advising the Government of Her Majesty, or the Canadian Gov-
ernment, that it was worth trying if there could be a prohibition. But
Mr. Justice Harlan was of a different opinion.

Mr. Justice Harlan. — In one of those cases, the appeal taken by the
vessel — I think so, but the book will show — was dismissed by the
pelagic sealers themselves.

Sir Charles Eussell. — On the ground, as I am informed, and as
the papers show, that though they gave notice of appeal, it turned out,
owing to the imperfection of judicial arrangements then existing — they
have been set right since — there was no Court to go to.

Mr. Justice Harlan. — Perhaps not the imperfection of judicial
arrangements, but the want of proper iireparation of the case for an
appeal under the Statute.

Sir Charles Eussell. — I think not, with deference.

Mr. Justice Harlan. — Well, I may be wrong.

Sir Charles Eussell. — At all events, if that is a matter that presses
on the mind of the Court, I will take care to come furnished with
the exact facts, but I think it is not important. It is not a case, as the
members of the Court will recognize, of litigation as between subjects,
and where the judgment of a Court may work a grievous wrong, which
may give rise to the need for diplomatic intervention; in which case it
is a diplomatic rule that all modes of possible redress furnished by the
judicature of the country should be pursued before diplomacy will
intervene. That is a clear rule, but it has never been held to apply to
an Act of State, where the contention was, on one side, that the State
was acting, or the autliority of the State was being invoked, to bind
another State outside the limitations of law. My learned friends have
not made that xioint, and it is so bad a point that I do not expect it
will be made.

EXAMINATION OF THE FIRST FOUR QUESTIONS OF ART. VI.

I come next — and I am very glad to feel I am making some little
progress, not as much as I could wish — to the questions 1, 2, 3
855 and 4 in Article VI, upon which the Tribunal will remember that
whatever position in argument is taken by the learned counsel
on one side or the other as to suggesting a greater or less relative
importance to those questions, yet that course does not affect the duty
of this Tribunal, the obligation, I may respectfully say, of this Tri-
bunal, to decide upon their meaning; because Article VI requires " that
the awaid of the Arbitrators shall embrace a distinct decision upon
each of the said live i^oints".

I group those four questions together for an obvious reason of con-
venience. They naturally hang together. The fii'st deals with the

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 113

question of Russia's assertions of riglit; the next deals with the ques-
tion of Great Britain's recognition of, concession of, those rights ; the
third deals with the question of whether the Behring Sea was included
in the phrase " Pacific Ocean" in the Treaty of 18U5; and the fourth
deals with the transmission by cession of whatever rights Eussia had
to the United States.

They naturally, therefore, hang together. The first comment I have
to make, Mr. President, is this: In view of the present state of this
controversy, it must strike you as odd why these questions have been
formulated at all; why you should be troubled with the decision of
questions which the learned counsel for the United States tell us have
no real importance or value at all. Why do I say that? Because they
tell us that it does not matter what rights Russia exercised or w^hat
rights were conceded to Eussia by Great Britain; the right they are
standing upon is a right which they have inherent in their territorial
dominion; attached to their rights of i^roperty interest in tlie fur-seals
or in the industry founded upon the fur-seals; dependent upon no prior
action, controlled by no prior action, but simply a right inherent.

But I have first to ask the Tribunal to determine whether that is the
question of right at all ; it obviously is not one which is referred to in
the first of these questions. We are told by my learned friends now,
that Russia was not exercising general rights of jurisdiction and sov-
ereingty, but was only protecting by regnlations her industry and her
property rights. But; that is not the question- which is raised, and that
was not the true character of the claim of Russia at all. Let me just
examine that case, for it is necessary in order that the Tribunal should
give the correct answer. What is the question? The question is,
What exclusive jurisdiction in the sea now known as the Behring Sea,
and what exclusive rights in the seal fisheries therein Russia asserted
and exercised. It is clear, for the reason that I have given, that it
cannot be a right in respect of property or property interest which is
adverted to, because, as I have more than once pointed out, such a
right in relation to property or property interest as is claimed is not a
right which has any legal circumscription at all. It is a right which
exists wherever the property is. It is the right of defence of the
possession of i)roperty against any man who attacks that property
Avherever that property is, and wherever, therefore, it neecls to be

defended.
856 That, therefore, is not the kind of right referred to as the

"exclusive jurisdiction" of the United States. What then does
it mean? It means. What sovereign authority, exclusive of all other
Powers, and in a defined and definite area, was exercised by Russia.

In other words, what sovereign authority, exclusive of all other
Powers was exercised by Russia in the Behring Sea? That is the
character of the question contemplated and pvit in question one, the
first question of Article VI. Exclusive jurisdiction in the Behring Sea :
Territorial .sovereignty which brooked no rival in that sea. Exclusive
in the same sense that there is exclusive territorial dominion on the
land. And I must refer to some documents which have not yet, I
think, been adverted to, as showing that that was what was meant
when this case was originally presented by the United States. I do
not know whether any of you gentlemen have ever compared this
original Case of the United States as regards the questions put, and
the space devoted to the consideration of those questions relatively
compared with the space they liave assumed in the written argument
B S, PT XIII 8

114 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

of counsel, and in the oral argument of counsel. Let me ask your atten-
tion to the matter. The whole of this Case on the part of the United
States up to page 81 is conversant with what may be called their
claim of title, and that claim of title is based wholly upon the rights
exercised by Russia as they allege, recognized and conceded by Great
Britain as they allege; and to which rights, so recognized and con-
ceded, they in 1867 succeeded by the treaty of that year. It is only
at page 85 — 1 pray your attention to this, for it is important — that we
find any reference to the claim which now takes so prominent a part in
the discussion of the question. After having elaborated the Eussian
part of their Case, on page 85 is a paragraph which begins thus:

But in determiniug what right of protection or property tliis Government has in
the far-se;ils frequenting the islands of the United States in Behring Sea when such
seals are found outside of the ordinary three-mile limit, it is not compelled, neither
does it intend, to rest its case altoiiether upon the jurisdiction over Behring Sea
established or exercised by Russia prior and up to the time of the cession of Alaska.
It asserts that, quite independently of this .iurisdictiou, it has a right of protection
and property in the fur-seals frequeutiug the Probilof Islands when foiind outside
the ordinary three-mile limit.

And here is the whole argument in support of that right, that novel
riglit, as 1 think it is admitted to be:

And it bases this right upon the established principles of the common and the
civil law, upon the practice of nations, upon the laws of natural history, and upon
the common interests of mankind.

1 have here read every word of the argument in this Case of the
United States in support of this claim of protection and property,
which is now the great portion of their argument.
Mr. Foster. — The next paragrajih will throw a little light upon it.
Sir Charles Russell. — Oh, of course they go on to justify
857 that by the details of seal iife; 1 am perfectly aware of that. I
am talking of argument, Mr. Foster. That interruption is need-
less. 1 read the next paragraph:

In order that this claim of right of protection and property may be clearly pre-
sented, it will be necessary to enter in some detail upon an examination of fur-seal
life at the Pribilof Islands and elsewhere, and of the various interests associated
with it.

1 am dealing with the argument, and not with the statement of facts.
1 have said from the beginning, and 1 shall not recede from it, that so
far as the decision of the question of property in these animals, free
swimming animals in the sea, breeding upon those islands, and spend-
ing a considerable part of their life there, is concerned, it depends in
our view upon facts that are not in dispute at all. 1 am dealing with
their argument, and here it is. They base this claim "upon the prin-
ciples of common and civil law, upon the practice of nations, upon the
laws of natural history, and upon the common interests of mankind."

The forged trans- ^^t it docs uot rcst there. According to the informa-
lationsof theKus- tiou which they then had, and which they believed was
ocumeu a. j-giir^^ig information, they had got a most valuable body
of testimony for the purpose of establishing that Russia had made these
claims, and that the concession of these claims had been recognized by
Great Britain ; that Russia had asserted these and had acted upon the
assertion without contradiction by Great Britain; and to show that
that is so 1 am led to call attention to the performance of that very
astute, but unscrupulous artist, Mr. Ivan Petroff. Will the Court
favor me by turniug to page 41 of the United States Case? I do not
know whether that has been done for you which 1 have had done for

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 115

me, but wliich if done will enable the Tribunal to see at a glance bow
completely and absolutely the United States have changed front upon
this question since the discovery of these forgeries upon which they
had based their great case of derivative title from Russia. Oat oat
these forgeries, and you have uo reference to the fur-seals, no asser-
tions by Russia in respect to the waters of the Behring Sea, no acts of
interference asserted or suggested by Russia in that sea at all.

Kow let me just justify this, although it may take a little time, I am
afraid.

On page 41 you will see what purports to be a quotation from the
Board of Administration of the Russian-American Company, beginning
with the words: " Witli this precious Act in your hand." Every word
of that from those words: "With this precious Act", to the end of the
page, is a forgery, an interpolation ; and Mr. Ivan Petroff understood
very well what he was about, because he makes this Ukase of 1821
speak in this language — this is the concluding sentence:

We can now stand upon our rights, and drive from our waters and ports the
intruders who threaten to neutralize the benefits and gifts most graciously bestowed
upon our Company by His Imperial Majesty.

858 Turning to the next page you will find a letter from the Board

to the Chief Managers of the Colonies beginning "As to fur-
seals", down to the word "future" at the end of that paragraph — it is
all a forgery :

As to fur-seals, however, since our Gracious Sovereign has been pleased to strengthen
our claims of jurisdiction and exclusive rights in these waters with his strong hand,
we can well afford to reduce the number of seals killed aunually, and to ])atiently
await the natural increase resulting therefrom, which will yield us an abundant
harvest in the future.

A complete interpolation; not a reference — I speak subject to correc-
tion, but I believe I am right — not a reference in any one document to
fur-seals at all. In point of fact we know from the Report of the Com-
mittee of the House of Representatives of the United States in 1876,
which I referred to before, that in the Russian time the existence of
the fur-seal was considered a matter of very little importance; and it
is stated in that Committee's Report that it had yielded no profit, or no
considerable profit at all, during the time of the Russian Government.

Then again on the next ])age, 43, the Tribunal will observe about the
bottom of the page, the words, "and on the islands and waters situated
between them" — also a forgery; and a little further down the words,
"The coast of Kamchatka, the Kurile Islands and the intervening
waters" — also a forgery: an interpolation, for the purpose of building
up the case, which he thought was the case — and was justified in think-
ing was the case — which the United States were making. He lends
himself to the series of forgeries to build up that case.

Then take the text, which is very remarkable, on page 44. You will
observe at the top of the page, the third line, the words, "And the
intervening waters (Behring Sea)". Every one of those words is a
forgery — interpolated. The original reads thus:

The other ship, however, (sailing from Petropavlovsk), having examined the east-
ern coast of the Kamchatka peninsula up to 62° of northern latitude, and the west
coast of America from this latitude to the island of Uualaska, should proceed to
Ivadiak and from there to Sitka for the winter.

But this ingenious gentleman makes it read:

From this latitude to the Island of Ounalaska and the intervening waters (Behring
Sea) should proceed to Kodiak.

116 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

Lord Hannen. — Is that a part of the forgery, "Behring Sea".

Sir Charles Eussell. — Yes; from the word "and" to the word
^^sea" inclusive.

I am most anxious that the Tribunal should realize that if these for-
geries are cut out of this case of Russia's assertion and of British con-
cession, there is nothing left: that the whole question resolves itself
into the action of the Powers, the United States of America and Great
Britain, the assertion in the Ukase of 1821, and upon the consequences

of the subsequent cession.
850 Then as to the next quotation o»i the same page, 44: it stands

in the original thus :

The object of the cruising of two of our armed vessels is the protection of our
colonies

Lord Hannen. — Where is that comparison of parallel columns'?

Sir Charles Russell. — I will give it to you, my Lord. You will
find it in the Appendix to the British Counter Case, Vol. I, page 11.

I will occupy one or two moments longer, with the permission of the
Tribunal. If the Tribunal will take a note of the page they will see at
a glance, because we have underlined the interpolations. But may I,
before the Court rises, just call attention to two more. Tlie way he has
ingeniously altered the sentence I have just read is to make it run
thus:

The object of the cruising of two of our armed vessels is the protection of our

colonies, and the exclusion of foreign vessels engaged in traffic or industry injurious
to the interests of the Russian Company as well as to those of the native inhabitants
of those regions.

Then, on the next page, page 45, is a very neat little introduction.
It ran originally thus:

By a strict observance of such rules, we may hope to make this industry a perma-
nent and reliable source of income to the Company, without disturbing the price of
these valuable skins in the market.

He has improved it, thus :

By a strict observance of such rules, and a proMMtion of all IciUinfj of fur-seals at sea
or in. the passes of the Aleutian Islands, we may hope to make this industry a perma-
nent and reliable source of income to the Company, without disturbing the price of
these valuable skins in the market.

A most ingenious gentleman, this; but I need not say he understood
what he was about. He understood the contention perfectly. He
realized it most completely.

Then at the bottom of page 46. It originally ran:

and Okhotsk and prohibited them from engaging in trade.

And he has ingeniously altered it, and inserted these words:
and from hunting and fishing in all the waters of Eastern Siberia.

Then he adds boldly a full sentence. Again, this is all his concoction :

In conclusion, it is stated as the decision of His Majesty, the Emperor, in view of
possible future complications of this natui'e, that no contracts involving the free
admission or navigation for trade of foreign ships or foreign subjects in the waters
adjoining or bounded by the coasts of Russian colonies will be approved by the
Imperial Government.

I need not remind you of what is, I think, present in your minds,
namely, that in Russian legislation, while Siberia and Kamchatka are
spoken of as part of the realm of Russia, Alaska, on the other hand, is
always spoken of as a colony of Russia.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 117

860 Lord Hannen. — How much of that last is interpolated'?

Sir Charles Russell, — The last sentence that I read, begin-
iiiug with the words, "In conclusion", and ending with the words
"Imperial Government".

Lord Hannen. — You were giving the passages relied on in the United
States Case!

Sir Charles Russell. — Yes, that is my point; I am anxious to bring
these passages on which the United States relied to the attention of the
Court. I hope the Tribunal realizes the importance of this matter.

The President. — Sir Charles, I would suggest that yesterday you
read us a despatch of Mr. Blaine, from which it appears that the sug-
gestion of Mr. Blaine, and almost his very words, were the origin of
these four or five questions put in tlie sixth Article of the Treaty. Well,
I suppose, when Mr. lilaine framed these questions in his despatch, and
asked that they should be incorporated into a treaty with England, I
suppose he relied on some intrinsic arguments of value. Do you think
he already had a knowledge of these interpolations of Ivan Petroff "?

Sir Charles Russell. — I am not in a position to inform the Tri-
bunal upon that point.

The President. — I think he did know, as these interpolations have
been withdrawn by the United States counsel.

Sir Charles Russell. — Certainly, I should judge — it is a mere
speculation, and of course my friends would know much better than
I — I should judge he had these before him.

Lord Hannen. — That is to say, he had these original translations?

Sir Charles Russell. — Quite so.

Lord Hannen. — And was deceived by them.

Sir Charles Russell. — I should judge so; but I do not know.

Mr. Foster. — If it is not an unnecessary interruption, I would
explain about that.

The President. — General Foster, will you kindly explain that.

Mr. Foster. — With the President's permission. I will say that Mr.
Blaine had no knowledge whatever of the contents of these documents.
They were not known to any person in the Department, or any official
of the Government of the United States, until after we began to pre-
pare this case, when this person named by Sir Charles was called upon
as an expert in the Russian language to translate them.

The President. — It is a question of dates, I suppose, which it is
easy to ascertain ?

Mr. Foster. — As to the translation?

The President. — Of course you know when the translations were
made, and when you first had to deal with this Ivan Petroff.

Mr. Foster. — As to the matter of dates, they were not known until
after the ratification of the Treaty, April 9, 1892.

Mr. Justice Harlan. — You mean the existence of the documents?
Mr. Foster. — No. The existence of these Russian documents

861 was known. The contents of the documents were not known.
They had not been translated. The officials of the Department of

State, of course, knew that we received from the Russian Government
under the Treaty certain archives and documents of the Government of
Alaska. These were sent to Washington and placed in the Department
of State. Their contents had never been translated; and as there are
very few persons in the United States, especially in Washington, who
are acquainted with the Russian language, the contents were not known
to the officials of the Department. But the existence of the documents
was known, and wheu this case came to be prepared, it naturally sug-

118 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

gested itself to the persons havings charg^e of it that it would be well to
examine the contents of those documents, whereupon this man Petroff
was employed to translate them.

The President. — But you do not suppose that Mr. Blaine, m hen he
originated his suggestion, which had as a conclusion the insertion of
the article in the Treaty, relied upon these.

Mr. Foster. — It is not a matter of supposition. It is a fact tluxt Mr.
Blaine did not know what were the contents of the documents now
under discussion.

Tlie President. — Sir Charles, do you not think that would be of
some importance for your argument; because, as you are going- on
about these interpolated documents, and they are practically with-
drawn, if they are in themselves quite independent, that is to say, if
they are not material for the framing of Article 6 — well, I leave that to
you to judge, of course. You know best.

Sir Charles Russell. — I am pursuing this — I did not intend to
pursue it at great length — for two reasons: first, to show what was the
real meaning of the " exclusive jurisdiction " and the "rights" men-
tioned in the first question of Article 6; to show that that meant an
exclusive right of territorial sovereignty assumed by Russia, and con-
ceded to Russia — that is my main point: and that at the time this Case
was prepared it was the great strength of the case that the United
States were prepared to put forward; that that is shown in the way in
which it is elaborated here; and, lastly, that excluding these Russian
interpolations or forgeries, nothing remains to support the claim based
upon Russian assertions, excepting the Ukase and the Treaties in
relation to the Ukase.

The President. — So you suppose that, as concerns Mr. Blaine, and
when he originated these questions, you suppose he relied exclusively
upon these documents, but not upon these interpolations.

Sir Charles Russell. — I accept, of course, what Mr. Foster says,
speaking from his own experience, that Mr. Blaine did not know of these
documents at the time, and that therefore he was relying upon the view
that he took of the Treaties. There are references in his correspondence
which I will not now refer to, which I find a little difficulty in account-
ing for except by reference to some of these documents — I mean as to
acts of assertion by Russia, which I do not find vouched for anywhere

else except in these documents.
862 Mr. Carter. — Can you point to anything in Mr, Blaine's letter

indicating that he knew of the contents of these documents'?

Sir Charles Russell. — No; I do not say these documents. I do
not doubt Mr. Foster's statement in the least upon the subject; but Mr.
Blaine must have had some idea that there were in existence documents
which would support the statements that there were acts of assertion
by Russia which could be relied upon.

Mr. Foster. — Why did he not produce them at the time?

Sir Charles Russell. — I think you will find, if you read his letter,
that he speaks again and again of acts of authority by Russia, assented
to by Great Britain.

May I be i)ermitted to make one suggestion which would, I think,
have the very desirable result of cutting short my argument upon this
part of the case. You see, the United States have withdrawn the forged
documents, and presented re-translations. They have not altered the
Case as it was originally jjresented. I have had enclosed for me in red
brackets the interpolated passages in the Case, and if it Avonld be per-
missible I can get that done as regards each of the Cases of the Arbi-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 119

trators, so that they can see at a glance the important part — I consider
it is important — that these interpolated passages bear in the argument,
and how bare it stands of authority if these interpohxted j^assages are
excluded.

Lord Hannen. — That is what you are going to show next?

Sir Charles Russell. — Yes.

Lord Hannen. — Taking out the interpolated passages there does not
remain the foundation for the claim of a derivative title from Russia?

Sir Charles Russell. — Tbat is it.

Mr. Justice Harlan. — So much of the case as rested on those docu-
ments that contain the interpolations, has been formally withdrawn by
the United States?

Sir Charles Russell. — Oh, that goes without saying, of course.

Mr. Justice Harlan. — I understood you to say otherwise; that is the
reason I interposed. Somebody said the Case had not been modified by
reason of that. I simply respond to that.

Sir Charles Russell. — My friend merely meant that from the
physical Case the passages had not been excised.

Sir. Phelps. — The Case is re-stated in the Counter Case.

Sir Charles Russell. — Yes.

The Tribunal here adjourned until Tuesday, May 16, 1893, at 11.30
o'clock A. M.

TWENTY-THIRD DAY, MAY i6™, 1893.

Sir Charles Russell. — Mr. President and Gentlemen, I resume my
argument upon the construction of the first question in Article VI ; and,
before doing so, I wish for one brief moment to refer to a matter which
I am afraid, and I am sorry to find, has caused some irritation to my
learned friends on the other side; I mean the reference to the falsifica-
tion of certain documents which appear in the original case. I wish
our position in that regard to be made quite clear to the Tribunal. We
do not in the least suggest, and never have suggested, that those who
represent the interests of the United States were in any way blame-
worthy in that matter; they were simply deceived; and we accept, as
I think I said before, implicitly the statement of General Foster, that
when Mr. Blaine was conducting his diplomatic correspondence he was
not aware of the contents of these Eussian documents. But we thought
it necessary, and we still think it necessary, to call attention to that
fact in order to show that, according to our view, the case — the substan-
tial case — originally presented on the part of the United States was a
case of territorial jurisdiction in Behring Sea, territorial dominion in
Behring Sea; and that once these falsified documents are expunged the
whole of that question depends upon the construction of the Ukase of
1<S21, the action following on that Ukase, and upon the construction of
the Treaties of 1824 and 1825. We feel it necessary to call attention
to those falsifications and to suggest — Ave may be right or we may be
wrong, but it is the view that we submit on this matter — that it is the
discovery of these falsifications by which the representatives of the
United States were deceived which has led to their change of front;—
namely, the change, on which. I have already dwelt at such length, by
which the question of derivative title under Russia, the question of
territorial dinuinion exercised by Russia, has receded into the back-
ground to make room for the different case now presented.

I called attention at the last sitting to the case of territorial domin-
ion which was originally presented on the part of the United States.
I showed that that case was consistent with the attitude which the
United States had pursued: that it was consistent with the course
which the Executive had pursued: that in invoking the aid of their
municipal statute as they did they were proceeding on the notion of
territorial dominion, and the application within that territorial domin-
ion of their municipal statute, and of that 'municipal statute alone;
and that there was no trace to be found in the proceedings of a sugges-
tion of the exercise of an inherent protective right of property
864 or of property interest. I am not going to enlarge upon the
subject again, but I observe in passing that I did call attention,
in connection with those proceedings in the Alaska Court, to two
circumstances which make our position still more apparent.

The first circumstance I called attention to was this. It was said
that although this Alaska Court is a municipal Court, yet it had also
Prize Court or International Court functions. I will not stop to ques-
tion that; but what I desire to point out is this, that once it exercises
or purports to exercise international functions, then the law which it
120

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 121

has to administer is something? entirely different from the law it lias to
administer as a municipal Court. Let me explain that point, and i)ass
on. Let me assume for a moment that the Counsel for the United
States, in those proeeedinj>s, had said to the judge: "We are claiming
that you, this Court, shall exercise functions as an international tri-
bunal, as a Prize Court, and that you shall proceed to pass judgment
upon the question whether this seizure for the cause that we allege was
justified by International Law."

What would liave been the first thing that the Judge must have
done when that contention was put before him? The first thing he
must have done would be to say this: "Then if I am sitting in an
international Court, and exercising the functions of a Prize Court,
municipal law is not my guide."

1 will take the ground my learned friends put when they say they
are entitled to do anything, within certain reasonable limits, necessary
for the protection of their property and of their interests. Immediately
the Judge would be obliged to consider — would necessarily be face to
face with the consideration — whether international law, under such,
circumstances, justified the seizure at all; and, in the next place,
whether international law annexed to the offence, alleged to have been
committed against international law, the particular sanction of search
and seizure of the vessel which the Government had adopted, to say
nothing of the further sanctions of imprisonment of the men and con-
fiscation of the vessels which that Government demanded. But there
is not a trace of the suggestion in the whole of the judgment or in the
brief to which I have already referred, that the Judge was asked to
consider the question in any other aspect than that of municipal law.

Now since I am upon this, and it is also relevant to the character of
the right — the exclusive jurisdiction and the exclusive rights referred
to in question 1 — I have followed up to the end these proceedings in
the "Sayward" Case, and I have before me here — Mr. Justice Harlan
will recognize it — the .shorthand report of the argument of the Solicitor
General of the United States, who appeared before the Supreme Court
at Washington in answer to an a])plication for a prohibition; and I beg
the Tribunal to recollect that this brings us down to a period as late as
1892, last year, at the time when the Treaty was being discussed;
and I will read to the Court the ground upon which that learned
gentleman in a very able argument puts the case of the United
,8G5 States. I will hand this copy of the proceedings in the case, if
it is not already in the possession of the Tribunal, to any mem-
ber who wishes it. I read from page 54 ; this is the Argument. "What
we say from that" — (that is, after he has stated the municipal legisla-
tion and the derivative title under Russia) — "is that all the territorial
jurisdiction of the United States acquired from Eussia is included
within the jurisdiction of the Alaska Court, and is equally within the
limitation of section 1956, and that if rights were acquired in Behring
Sea by the cession from Russia — and no rights were otherwise acquired —
that section 1956 extends over all the territory or dominion which
was acquired by that treaty of cession. We do not deny that the juris-
diction of the District Court of Alaska and that the venue of the
offence were originally questions to be decided by that Court, and to
be decided by tliis Court in a proper case when properly here raised.
What we assert is that the jurisdiction of that Court, and the venue of
the offence, by a single stei) is made inevitably to depend upon the
national jurisdiction in the waters of Behring Sea; that that is a polit-

122 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

ical question, and t.liat the decision of the Executive and of tlie Con-
gress of tlie United States on tliat politic^al question is conclusive, not
only upon this Court but upon every citizen within the jurisdiction of
the country, because in determining' that ])olitical question the Execu-
tive is discharging his constitutional functions, and he, in the discharge
of that duty, is not an inferior tribunal whose decision may be reversed
by this Court."

The Court will see that it could not have been present to the mind of
this learned gentleman thattheie was any ground put iorward suggest-
ing a defensibility of the judgment, except the ground of national terri-
torial jurisdiction, on which he aftirms are based the only rights put
forward by the United States, and which he says were the only rights
that were acquired from liussia by the United States. The Attorney-
General follows, but follows briefly upon the same lines; and I turn to
the judgment, and (Mr. Justice Harlan will correct me if I am wrong
about this) I take the efi'ect of the judgment ultimately to be this; that
the Court thought that it was not a case in which a Prohibition lay;
that they came to the conclusion that the Eecord had been so imper-
fectly made up that even if jurisdiction did not extend beyond 3 miles,
yet non constat, as far as the Eecord as made up appeared, the oftence
may not have been committed within 3 miles.

Mr. Justice Harlan. — I really do not recall enough of it to say
whether you are correct or not. Have you the oi)inion of the CourtI

Sir Charles Eussell. — Yes; I have it before me.

I do not know if the other Members of the Court appreciate what I
am upon. Jurisdiction in prohibition is a peculiar thing. It is difdcult
to put prohibition in force after the judgment has passed. The point
resolves itself into a question whether the Court had any jurisdiction;
and, if it had any jurisdiction, then the remedy if the Court has gone
wrong is not prohibition, but appeal. If it had jurisdiction, you cannot
prohibit; and the Court came to the conclusion, from the Eecord
866 put before them, imijerfectly and very badly made up it would
appear, that it did not appear that the seizure might not have
been within the 3-mile limit, and, therefore, proi)erly within the jurisdic-
tion, as internationally recognized, of the municipal Courts.

But that is not the point I am upon, which is the recognition by the
Court of the argument of the Solicitor- General on the broad grounds on
which the United States assumed to justify their action. The judgment
is on page 16 of the OfiBcial Eeport —

Mr. Justice Harlan. — That is the opinion of the Chief Justice?

Sir Charles Eussell. — Yes.

If we assume that tlie record shows the locality of the alleged offence and seizure
as stated, it also shows that officers of the United States, acting under the orders of
their Government, seized this vessel engaged in catching seal and took her into the
nearest port, and that the law officers of the government libelled her and proceeded
against her for the violation of the laws of the United States, in the District Court,
resulting in her condemnation?

How did it happen that the officers received such orders? It must he admitted
that they were given in the assertion on the part of this government of territorial
jurisdiction over Behring Sea to an extent exceeding fifty -nine miles from the shores
of Alaska; that this territorial jurisdiction, in the enforcement of the laws protect-
ing seal fisheries, was asserted i)y actual seiziires during the seasons of 1886, 1887,
and 1889, of a number of British vessels ; that the government persistently maintains
that such jurisdiction belongs to it, based not only on the pecialiar nature of the seal
fisheries and the property of the government in them, but also upon the position
that this jurisdiction was asserted by Russia for more than 90 years, and by that
government transferred to the United States; and that negotiations are pending
upon the subject.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 123

Therefore, tbe Cliief Justice appreciates it in the same sense; he
could not do otherwise.

That the government persistently maintains that such jurisdiction belongs to it,
based not only on the peculiar nature of the seal tishcries and the property of the
government in them, but also ujion the position that this jurisdiction was asserted
by Russia for more than ninety years.

The President. — What does he mean by "extending 59 miles", that
is where the seizure was, I suppose?

Sir Charles Kussell. — Yes As regards the technical ground of
the Judgment he says on page L'S :

Upon the face of the libel and findings, if the jurisdiction did not extend beyond
three miles from the shore, the legal inference is that the offence and seizure were
"Within that limit.

That is the technical ground, but not the broader ground which I am
at present upou.

Now if it were, as it is apparent it must be, the true meaning that
the jurisdiction exercised by Russia was territorial dominion, then I
have to show that the United States admit now at this stage of the con-
troversy that the question must be answered in the sense for which
Great Britain contends. Now I proceed to justify that state-
867 ment, and for that purpose I refer to the Case of the United
States. Now in order to bring this out, in order to contrast the
different aspects of their contention, it is enough to say that in the
original Case their propositions were these. I am reading now from
the "Conclusions" at page 297:

That prior to the Treaty of 1825 between Great Britain and Russia, and from a
date as early as 1799, down to the cession to the United States in 1867, Russia pro-
hibited the killing of seals in any of the waters of Behring Sea, and exercised such
control therein as was necessary to enforce such prohibition.

Fifth. That Behring Sea was not included in the phrase Pacific Ocean, as used iu
the Treaty of 1825, and that said Treaty recognized the rightfulness of the control
exercised by Russia in Beliring Sea for the protection of seals.

Sixth. That all the rights of Russia as to tlie protection of the Alaskan seal herd
passed unimpaired to the United States by the Treaty of 1867 —

and so on.
Then the final conclusions, at the bottom of page 301, are these:

In conclusion the United States invoke the judgment of this High Tribunal to the
effect :

First. That prior and up to the time of the cession of Alaska to the United States,
Russia asserted and exercised an exclusive right to the seal fisheries in the waters of
Behring Sea, and also asserted and exercised tlaroughout that sea the right to prevent
by the employment, when necessary, of reasonable force any invasion of such exclu-
sive right.

That Great Britain, not having at any time resisted or objected to such assertions
of exclusive right, or to such exercise of power, is to be deemed as having recognized
and assented to the same.

Then in another form is repeated the Behring Sea and Pacific Ocean
question ; and then finally it is stated that the rights of Russia passed
to the United States.

Now their present position is stated briefly on page 19 of their Coun-
ter-Case. The marginal note to that column is this : " No exclusive ter-
ritorial jurisdiction claimed; " and the statement in the body is in these
words:

The distinction between the right of exclusive territorial jurisdiction over Beh-
ring Sea, on the one liand, and the riglit of a nation, on the other hand, to preserve
for the use of its citizens its interests on laud by the adoption of all necessary, even
though they be somewhat unusual, measures, whether on land or at sea, is so broad

124 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

as to re((uire no further exposition. It is the latter rip;ht, not the former, that the
United States contend to have been exercised, lirst by Russia, and later by them-
selves.

Therefore, it follows from this statement that it is not a question oi
exclusive jurisdiction in the sea, because exclusive jurisdiction in the
sea means, as I pointed ont on a previous occasion, a jurisdiction exclu-
sive of all other Powers — a right to saj^ to all other Powers and persons
" You shall not enter here if it is our will that you shall not enter here ".
That is sovereign jurisdiction; it involves treating the area to which
that assertion relates as if it were territory, because, as 1 pointed out
ou a previous occasion, such a right as the one which is now asserted, to
defend a special property interest, is not a right exercisable in a
868 defined area; it is a right which, if it exists — (whether it exists
and what its true character is I will discuss hereafter) — would
exist and be exercisable wherever the property to be defended existed
and at the time was. It, therefore, would have no local area of circum-
scription at all.

But, further, let me draw the attention of the Arbitrators to the form
of question 4 :

Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in
Behring Sea, east of the water boundary in the Treaty between the United States
and Russia of the 30tli Marcb, 1867, pass unimpaired to the United States under that
Treaty?

The Tribunal will notice those words "pass unimpaired". That is
clearly referring to a right of jurisdiction, a right of territorial jurisdic-
tion ; because how could it be suggested that if it is a right of protec-
tion of property, incident to projierty, there could be any question of
that being impaired'?

Such a right would come into existence when the right itself came
into existence, and would exist as long as the right itself existed. There
could be no question of a derivative title to protection in the property if
it existed at all; or of its passing unimf>aired. Therefore, that question
again throws light on what the meaning of the first of these three ques-
tions is, namely, an assertion of territorial sovereignty by the United
States. That it was exclusive jurisdiction in a limited area, and not a
general right which follows property wherever it is, is further shown by
the modus vivendi. The modus vivendi stipulates that if the result of the
Arbitration be to affirm the right of British sealers to take seals in Beh-
ring Sea, then the United States is to compensate Great Britain ; if, on
the other hand, the result of the Arbitration should be that Great
Britain has no right to take seals in Behring Sea, then that Great
Britain is to compensate the United States for this loss; again showing
jurisdiction in a limited area — jurisdiction in the eastern part of Behring
Sea. ISTow it is important for us to follow this out, (although it is, in the
view of my learned friends, no more than a subordinate question),
because it shows that which I must again and again and again refer to
and recur to — that the claim of the United States is essentially a terri-
torial claim, and because it shows also that the whole area of dispute
between these parties, (which is the limitation, as we contend, of the
authority of this Tribunal), is limited to the area of Behring Sea.

There is one other general observation which I have to present, and
then I pass on. It will be observed that the third question deals spe-
cifically with the point raised by Mr. Blaine in his celebrated letter of
December 17, 1890, which he said, if decided in oneway, was conclusive
of the question: namely, whether Behring Sea was included in the
phrase " Pacific Ocean ". I observe on that in passing, that if that

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 125

question is answered in tlie sense for which we contend, namely, that
Beliring Sea was inchided in the phrase "Pacific Ocean" in tlie trea-
ties, then all the first fonr qnestions are answered in the sense
869 favorable to Great Britain; because if, by the operation of the
Treaties, Knssia did in fact recognize, without qualification, rioiits
of fishing in Behrijig Sea, then it cannot be said that she asserted and
exercised exclusive rights, when by the Treaties she had disclaimed
them. I hoi)e the Tribunal follows this point. If the elfect of the
Treaties is to recognize the right of Great Britain and its nationals, as
well indeed as of other Powers of the world, to navigate and fish with-
out limitation in Behring Sea, then of course Russia cannot be said to
have asserted and exercised a right which is inconsistent with that
recognition.

Now with those observations I pass to the consideration of the mat-
ter a little more closely. In considering these qiiestions I do not forget
the observation ''cutely" made, if I may respectfully say so, by Senator
Morgan, a good many days ago, namely that it is not a question what
rights Russia had in fact, but that it is what rights Russia asserted and
exercised. That is quite true ; but, of course, in considering what riglits
Russia did, in fact, assert and exercise, it is not unimportant to con-
sider, in a very general way, what would have been the effect and the
character of the assertion of any such right, and what was the extent
of the locality, the extent of the area, in which those rights of an exclu-
sive kind were said to have been exercised. Now upon this part of the
case I can be very brief. I will not trouble the Tribunal to refer to the
documents for the moment. It will not be found to be necessary even
to supplement in any way the admirable, graphic, picturesque, intro-
ductory historical sketch which my friend, Mr. Carter, gave the Tri-
bunal in his argument — a very interesting part indeed of his argument.

There were some statements in the course of that narration with
which we do not agree, but there is nothing essential to Description of
the question between us. The Behriug Sea is the north- Behiiugsea.
ern part of the Pacific Ocean; it washes the north-west portion of the
coast of America and changes its name at the sea of Okhotsk. In the
extreme west it washes the north-eastern part of Asia.

It is the sea that connects the broad Pacific Ocean with the Arctic
Ocean by the Behring Straits, some 48 miles in width. From east to
west that sesi — it is before your eyes upon the map — has an extreme
width of 1,2G0 miles. From north to south it extends over 14 degrees of
latitude, exceeding 800 miles; and the area of that sea is stated in the
United States Case (and I have no doubt quite correctly) to amount to
nearly 900,000 square miles. That is the character of the sea. Prior to
1799 it is perfectly true to say that it was one of the vast and partially
unexplored seas of the world. It had begun to be navigated by all
nations, but not to a very large extent. There had been Russian, Amer-
ican, English and French travellers over various parts of the bordering
country. The general descrii>tion of these expeditions is to be found
in the historical outline which is presented in the British Case from
pages 14 to 21.

1 do not stop to read them, because it is not important, but by the
beginning of the 19th century undoubtedly, the regions in this
870 neighbourhood, and the regions of land beyond — in the almost
practically unknown Arctic ocean, — had excited the interest and
the desire for exploration in the adventurous among men : omne ir/notnin
pro magnifico. Eyes were turned on these undiscovered regions. The
country both south and east of Behriug Sea being very sparsely popu-

126 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

lated, and almost entirely by tlie aboriginal population, it had not
assumed any great commercial value as a i)athway of commerce. There
had been no important settlements on the American coast, and the
questions of what right JUissiahad acquired by discovery, or by posses-
sion, were of a largely indeterminate character. That, broadly stated,
was the position of tbings when the Ukase of 1799 was ]3romulgated
by Kussia.

The Fkase of 1799.

Upon this Ukase I must say a word, although again it is not neces-
sary to trouble the Tribunal by referring to any particular document in
relation to it. Legislation by Ukase I take to be the mode which the
Constitution, or the system of Government I had perhaps better say, of
Russia, employs for conveying its soA^ereigu will. That Ukase of 1799
has, I think been a little misstated by my friends on the other side.
Its history is given in the British Case; the Ukase itself is on page 25.
I may dispose of it as far as I am concerned by very general observa-
tions. In truth this Ukase was aimed at consolidating the rival Eussian
interests concerned in the trade in the Eussian possessions upon the
American coast. It was not directed against foreigners — indeed there
were very few foreigners against whom it could be directed at that time.
It shows that it was aimed at consolidating local IJussian interests in
one powerful monopoly; which one powerful monopoly should, bj' its
strength and its own inherent force be able to resist j)ossible competi-
tion, signs of which were beginning to grow up. In that sense undoubt-
edly it was aimed at foreigners, but in that sense only.

Now it begins by a statement of the claim of Eussia by right of dis-
covery; and then it goes on, in clause 1, to say:

We most graciously permit the company to have the use of all hunting grounds
and establishments now existing on the north-eastern —

that ought to be north western —

coast of America from the above-mentioned 55th degree to Behring Strait and on
the same also on the Aleutian, Kurile, and other islands situated in the north-
eastern ocean.

Clause 2 relates to making new discoveries, which I need not read.
The remaining important clauses are as follows:

3. To use and profit by everything which has been or shall be discovered in those
localities, on the surface and in the bosom of thie earth, without any competition by
others.

5. To extend their navigation to all adjoining nations and hold business inter-
course vpith all surrounding powers under our highest protection to enable them to

prosecute their enterprises with greater force and advantage.
871 6. To employ for navigation, hunting, and all other business, free and unsus-

pected people —

and so on.

8. For shooting animals, for marine signals, and on all unexpected emergencies on
the mainland of America and on the islands, the Company is permitted to buy for
cash at cost price, from the Government artillery magazine at Irkutsk, yearly so
many ponds of powder —

and so on.

10. The exclusive right most graciously granted to the company for a period of 20
years, to use and enjoy, in the above described extent of county and islands, all
profits and advantages d(>riA'ed from hunting, trade, iudnstries, and disi^ovei'y of
new lands prohibiting the enjoyment of those profits and advantages not only to
those who would wish to sail to tiiose countries on their own accouut, but to all
former hunters and trappers.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 127

Now tliis is the chief passage which I desire to read in order to show
»vhat the purport of the article was; it is in the middle of article 10.

And other companies which may have been formed will not be allowed to con-
tinue their bnsiness unless they unite with the present company with their free
consent; but such private companies or traders as have their vessels in those regions
can either sell their property, or, with the company's consent remain, until they
have obtained a cargo —

and so on. Then further on it says :

And after that nobody will have any privileges but this one Company, which will
be protected iu the enjoyment of all the advantages mentioned.

That therefore was the creation of a Russian Monopoly Company,
which should have all rights of trade in the territories which Russia
either possessed or was claiming to possess by its right of discovery.
It applied to all other Russian subjects — excluded all other Russian
subjects; but there is not a word about foreigners in it from beginning
to end. But that is not tlie most important part. The Tribunal will
observe that there is not one syllable about the sea in it, and not one
word about exclusive rights of fishing in Behring Sea.

Mr. Justice Harlan. — Sir Charles, will you let me remind you here
that in tlie British Counter-Case it is said that the translation you have
just read is incorrect, and you gave another translation of it which you
say is the correct literal one. I want to ask you, is there any material
dilference.

Sir Charles Russell. — None, sir, I believe.

Lord Hannen. — Oidy in one phrase I think, in which the word
" dominion " is used.

Mr. Justice Harlan. — The differences are indicated in the Counter-
Case by italics. 1 do not know whether there is any proof in the docu-
ments as to which is the correct translation.

Sir Richard Webster. — It arose in this Avay. This transla-
872 tion was simidy taken from Bancroft's History of Alaska. The
original Ukase had never been translated till after the British
Case was deposited, and then it was translated for greater accuracy,
and that more correct translation was printed. As the Attorney Gen-
eral said, there are no substantial differences which require any notice.

Sir Charles Russell. — 1 think it will be found that is so. As I
have already observed, it is domestic in its character, and indeed affirms
a strong domestic monopoly which could successfully contend with
other rivals, and in that sense undoubtedly with foreign rivals, if they
appeared; and it relates solely to land. It has no reference to the
question of sea rights, or of interlereiice with sea rights. It is entirely
domestic in its character, and there is no suggestion of a notification to
any foreign Power.

it will be seen, at the bottom of page 28 of the Case, that the view I
am suggesting is the view which prevailed in 1824 in the United States.
Referring to the Ukase of 1799, Mr. Middleton, writing to Mr. John
Quincy Adams, says:

The confusion prevailing in Europe in 1799 permitted Russia (who alone seems to
have kept her attention tix(id upon this interest during that period) to take a decided
step towards the mono|)idy of this trade, by the Ukase of that date, which tres-
passed upon the acknowledged rights of Spain.

That is as regards territory, you will recollect.

But at that moment the Emperor Paul had declared war against that country as
being an ally of France. Tliis Ukase, which is. in its form, an act purely domestic,
i7 as never notitjcd to any foreign State with injunction to respect its provisions.

128 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M, P.

Accordiugly, it appears to have becji passed over miol)serve(l hy foreijin powers, and
it rt'iiiaiuod without executiou in so far as it militated against their rights.

That Avas the United States view of it.

The Ukase of 1821.

Now, I pass to the much more important document, the Ukase of
1821, and the Tribunal will observe that, at this period, the question of
seal-fishing, either on Islands or in the open sea, had not assumed any
importance. No doubt, the natives along the coast had been catching
all they could for their clothing and for their sustenance, and no doubt
barter had begun to spring up as early as that period, though it would
be mainly south of the Aleutian Chain, but we have no record of any
existing, to any exteut, north of the Aleutians. Now comes this impor-
tant document, the Ukase of 1821, which is set out in volume I of the
Appendix to the United States Case, at page 16:

Edict of his Imperial Majesty, Antocrat of all the Russias.

The Directing Senate maketh known unto all men. Whereas in an Edict of his
Imperial Majesty, issued to the Directing Senate on the 4th day of September, and
signed by his Imperial Majesty's own hand, it is thus expressed:

'Observing from reports submitted to us that the trade of our subjects on the
873 Aleutian Islands and on the northwest coast of America appertaining into Ivus-
sia, is subjected, because of secret and illicit traffic, to oppression and impedi-
ments; and finding that the principal cause of these difficulties is the want of rules
establishing the boundaries for navigation along these coasts, and the order of
naval communication as well in these places as on the whole of the eastern coast of
Siberia and the Kurile Islands, we have deemed it necessary — '

and so forth.

Now, before I proceed to read the operative parts of this document,
may I invite the attention of the Tribunal seriously to mj learned friend
Mr. Carter's contention in relation to this Ukase, and the effect of that
Ukase upon the Treaties of 1824 and 1825; because it will save me a
good deal of rei:)etitiou and argument if the Tribunal will bear in mind
that the whole of the discussion in which I am now embarking will be
addressed not merely to showing that the right of fishing was recog-
nized in the Behriug Sea, but also to showing that the phrase "north-
west coast of America" had not the limited meaning in the Treaties
and in the correspondence which my learned friend, Mr. Carter, assigned
to it, but extended to the whole of the coast-line of the possessions
claimed by Russia from Behring Strait down to its most southern
boundary.

In order that the Tribunal may have this point more clearly before it,
let me remind the Tribunal what my friend Mr. Carter's argument was.
The argument was that north of the Aleutian Chain in Behring Sea,
and north of Behring Sea, the rights of Russia never were questioned
at all — that the debatable ground was not reached until you came south
of the Aleutians.

Mr. Carter. — South and east.

Sir Charles Russell. — Oh yes, of course.

Mr. Carter. — Not much south.

Sir Charles Russell. — South and east of the Aleutians; but that
south and east of the Aleutians Russian pretensions were met b}^ certain
more or less undefined claims on the part of Great Britain, and by
.certain more or less undefined claims to territory on the part of the
United States: that all the dispute related to portions of sea and terri-
tory soutli of the Aleutian chain; and that the north west-coast — and
this is the main point — in the sense in which it was used in the Ukase,

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 129

in the sense in which it was used in the Treaties, referred only and
strictly to the lisiire, as ultimately defined in the Treaty of 1825. Now
having stated that correctly as my learned friend's contention, I do not
stop to point out, though I may have to do it later, that my learned
fiiend has given one of four different interpretations which have been
advanced by the United States as to the meaning of that phrase "north-
west coast". It will be convenient for me here to mention what those
four inter]»retatious were. I will not stop to justify this assertion now ;
but I think it will be apparent when I come to read the correspondence.

Mr. Carter. — I referred to the limitation of the words "northwest
coast" as used in the Ukase.
874 Sir Charles Eussell. — Very well; I am obliged to my

learned friend for correcting me; as used in the Ukase, it was
much more.

Mr. Carter. — I did not say that.

Sir Charles Russell. — If it was not confined to the Usierey it
extended beyond it, and, therefore, meant more than the lisiire.

Mr. Caarer. — I only spoke of what my argument was.

Sir Charles Kussell. — I now i^oiut out what these four construc-
tions were. In the despatch to Sir Julian Pauncefote of the 30th of
June, 1890, Mr. Blaine examined the Treaties of 1824 and 1825, and says
it is plain that they both limited the "northwest coast" to the coast
between the 50th and 60th degrees of North latitude.

[Sir Richard Webster then pointed it out on the map.]

On the 17th of December, 1890, he again writes, and discusses the
meaning of "Pacific Ocean" and "the Northwest coast"; and he
observes in that letter that the dispute as to the meaning of "Pacific
Ocean" prominently involves the meaning of "the Northwest coast";
and, in that letter he contends that "the Northwest coast" means the
coast from the 42nd to the 60th degrees of North latitude.

[Sir Richard Webster then pointed it out on the map.]

I observe, in passing, that neither of those contentions has been
thought worth inserting in the United States Case or Counter-Case.

A third construction suggested is that it is identical with the lisiere.

The fourth construction is put forward in the United States Case at
page 26, where they say that the term "Northwest coast" is intended
to designate the coast between Prince William's Sound and the mouth
of the Columbia River.

[Sir Richard Webster then pointed it out on the map^]

Those four meanings have been given by the United States to that
phrase "Northwest coast".

Now, I will ask the attention of the Tribunal to what it really means.

I agree fully with Mr. Blaine that the two phrases "Northwest
coast" and "Pacific Ocean" have a very important bearing indeed on
the question whether Behring Sea was not included in the phrase
"Pacific Ocean". First of all, of course, it is important to see, inas-
much as the Treaties of 1824 and 1825 were the result of the protests,
up to a certain point joint, and after that separate, of the United States
and of Great Britain it is important, of course, to see what was the
assertion, on the part of Russia, of jurisdiction against which these
protests were jointly and severally made. I turn to the Ukase.

It is set out on page 16 of volume I of the Appendix to the United
States Case.

Rules established for the limits of navigation and order of communication along
the coast of Eastern Siberia, the Northwest Coast of America, and the Aleutian,
Kurile and other islands.

B S, PT YTTT 9

130 ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P.

If the Tribnnal will follow this on the map, it will be seen

875 that that describes a circle. It is made still clearer in section
I. "The pursuits of commerce, whaling and fisher^'", — you will

observe that, though my friends say that this Ukase was for the pro-
tection of fur-seals, there is no reference iu it to fur-seals at all; but
there is a reference to other forms of fishing.

The pursuits of commerce, whaling, aurt fishery, and of al) other industry on all
islands, ports and gnlfs including the whole of the northwest coast of America,
beginning from ijehring's Straits to the 51" of northern latitude, also from the
Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands
from Hehring's Straits to the South Cape of the Island of Urup, namely, to the45'^50
northern latitude, is exclusively granted to Russian subjects.

Again, the Tribunal will see that the whole line of that coast is indi-
cated by the geueral description of Russian assertion of dominion. On
the western side of the Behring Sea, and on the coast of Siberia, from
Behring Straits along the coast down to 45°50 of latitude ; on the Ameri-
can side from Behring Straits to 51° of northern latitude, described as
the " northwest coast of America". Now that is uumistakeable.

It is therefore prohibited to all foreign vessels not only to land on the coasts and
islands belonging to Russia as stated above, but also to approach them within less
than a hundred Italian miles. The transgressor's vessel is subject to confiscation
along with the whole cargo.

Now, let me point out, Mr. President, when my learned friends say
the Treaties of 1824 and of 1825 left Behring Sea untouched, and that
Behring Sea was not included in the phrase " Pacific Ocean," that if it
was untouched, so far as Behring Sea is concerned, it must have been a
closed sea, a ntare clausum: because there is no opening into Behring
Sea from the south or from the north that exceeds 200 miles. You will
find, on page 47 of our Counter-Case, the exact width of all the passes
is given, and the greatest pass is that between Attn Island and Copper
Island, which is 190 miles only. If the jurisdiction is extended 100
miles from each of the Islands, the two zones, of course, meet, and the
sea becomes a mare clausum.

I do not think there is a great deal to be said in calling attention to
the details of the Rules issued with this Ukase, but there are two or
three to which I must refer. Section 3 requires to be noticed.

Mr. Justice Harlan. — The Oases of both Governments agree in the
translation of section 1 which you have read; but I observe that in a
letter of Mr. Blaine to Sir Julian Pauncefote, at page 226 of the United
States Appendix, volume I, he gives sections 1 and 2 of the Ukase of
1821; and it differs from the one you have read. I do not know where
he got his translation. There seems to be no reference to it anywhere.

Sir Charles Russell. — Does it materially difler?

Mr. Justice Harlan. — Well, there is some change of phraseology.

Instead of the words "including the whole of the northwest coast of

America", it reads "and in general, all along the north-western coast

of America". The translation you have read contains the words

876 "from the Aleutian Islands to the eastern coast of Siberia",
while Mr. Blaine's translation reads, "on the Aleutian Islands

and along the eastern coast of Siberia."

Sir Charles Russell. — I do not know where he got it from. It
does not seem very important.

Mr. Justice Harlan. — No; I do not know that it is.

Sir Charles Russell. — It would seem to put it rather stronger:
'••And, in geueral, all along the north-western coast of America from
Behring Strait." It is stronger, but not material j but I take the trans-

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 131

lation tliat the United States have put forward themselves. I am
reminded by my learned friend that we have put forward one which
agrees with it.

Mr. Justice Harlan. — Exactly. Both Governments have presented
the same translation in the present case.

Sir Charles Russell. — So I understand.

I was calling attention to section 3, which shows there is no doubt
about what was meant in section 1 ; namely, the power of excluding
every body from the area in sections 1 and 2, because in section 3 an
exception is made.

In favour of vessels carried thither by heavy gales or real want of provisions, and
unable to make any other shore but such as beloui^s to Russia. In tliese cases they
are obliged to produce convincing jiroofs of actual reason for such an exception.
Ships of friendly governments merely on disco vericB are likewise exempt from the
foregoing rule.

Then section 14, on page 18 :

It is likewise interdicted to foreign ships to carry on any traffic or barter with the
natives of the islands, and of the northwest coast of America, in the whole extent
hereabove mentioned. A ship convicted of this trade shall be confiscated.

Then, section 25 I do not know that that is very important to trouble
you with; but it is:

In case a ship of the Russian Imperial Navy, or one belonging to the Russiail
American Company, meet a foreign vessel on the above-stated coasts, in harbours, or
roads, witiiin the before-mentioned limits, and the Commander find grounds by the
present regulation that the ship be liable to seizure, he is to act as follows —

And then there are indications as to how he is to act. Then I pass
over several pages, and in section 60 more or less elaborate provisions
are made for dealing with the proceeds of confiscated propert3',vessels
and cargo, as to which four-fiftlis are to go, after certain deductions, to
the American Company. The President will recollect that the Ameri-
can Company was not an American Company with American citizens
in it; it was so called from its trading partly in America; and so far
from being an American Company, the papers state, and I think it is
correct, tliat a number of distinguished jiersons in Russian political
life, including members of the Royal Family, were interested in that
Company.

Tliere can be no question, Mr. President, between us as to what
877 that Ukase means. It means an assertion of exclusive territorial
dominion in the territory mentioned to the extent mentioned and
in the seas mentioned, so as to prohibit navigation within 100 miles
from the coast. That is a very different thing from the charter of 1799,
which was not communicated to any foreign Power. This Ukase was —

Mr. Justice Harlan. — You say " to the extent mentioned." Do you
mean over the whole of Behring Sea, or for 100 miles'?

Sir Charles Russell. — So far as territorial jurisdiction is con-
cerned, 100 miles from the land and the islands, of course. But as I
have pointed out this would have closed tbe entrance to Behring Sea.
The Charter of 1821 you will find on page 24. It is not necessary that
I should trouble you with it beyond reading sections 1 and 2. The
Ukase was an act of imperial legislation. The Charter is the act by
which, upon the basis and under the protection of that imperial legisla-
tion, the rights are given to the chartered Company.

The Company established for carrying on industries and trade on the mainland
of north-west America, on the Aleutian, and on the Kurile Islands, remains as here-
tofore under the highest protection of His Imperial Majesty.

132 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

It eujoys the privilege of hunting and fishing to the exclusion of all other Rnssian
and foreign suhjet-ts throughout the territories long since in the possession of Rus-
sian, on the coasts of north-west America, begiuniug at the northern point of the
island of Vancouver in latitude 51° north, and extending to Behring Strait and
beyond, as well as on all islands adjoining this coast and all those situated between
this coast and the eastern shore of Siberia, as well as on the Kurile Islands, where
the Company has engaged in hunting down to the south cape of the Island Urupa,
in latitude 45° 50'.

Sir Richard Webster. — The translations there do not quite agree,
but it is sufficiently accurate in the United States Case.

Sir Charles Russell. — Now, still endeavouring not to distract the

attention of the Tribunal by references to too many books, I would ask

you to turn to page 132 in this same volume. How far have we got

in the argument? We have got clearly to the point of

Nature of the g, distiuct asscrtiou of territorial dominion of a very

TjkMe of 182L ^ extcudcd kind by Russia, and of territorial jurisdiction of

an exclusive character, extending 100 miles from land and

from the islands; which is of course a claim to exclude all persons from

that extended area.

The President. — You seem to construe the last clause of the Ukase
of 1821 as implying an extension by Russia of the territorial limit.

Sir Charles Russell. — Yes and so it was.

The President. — Not of particular jurisdiction, but as an extension
of general territorial right of Russia.

Sir Charles Russell. — Certainly there is a distinct prohibition of
any vessel going inside that line, with the penalty of being confiscated
if it does go within : with the only exception in favour of a vessel blown
within by accident or stress of weather. It is a claim to exclude all
persons from coming within that limit. It is an extension to 100 miles
of the now universally accepted 3 miles limit.

Lord Hannen. — I understood you to say you thought the effect
878 of it would be to prevent any vessel going into Behring Sea at
all because they would infringe the 100 miles.

Sir Charles Russell. — Yes I did. There is the permission given,
which does not detract from the assertion of territorial dominion, to a
ship on a voyage of discovery.

The President. — Yes and with passports.

Sir Charles Russell. — And a further exception if a ship is blown
in by stress of weather. Now that is a serious and grave assertion of
rights of sovereignty of Russia; and if after having been notified to
foreign Powers, including Great Britain and the United States, they
had acquiesced in it, and had made no objection to it, then possibly a
case of estoppel or acquiescence by them might have been made out.

Senator Morgan. — Then, if I understand you, there seems to be no
controversy between the parties here as to the fact that Russia asserted
exclusive jurisdiction in Behring Sea.

Sir Charles Russell. — Undoubtedly, and then withdrew it.

Senator Morgan. — There is a question then as to the withdrawal?

Sir Charles Russell. — Certainly : our position is that they asserted
it on paper, never exercised it, and then withdrew it. Mr. Senator
Morgan asked me whether he was to take it that both United States
and Great Britain agreed that Russia asserted this territorial dominion
in Behring Sea. I said, yesj I understood the other side also agreed
in that.

Mr. Carter. — No.

Sir Charles Russell. — I thought it was so.

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 133

Mr. Carter.— What may be the effect of the Ukase is one thing, but
what Knssia. intended by it is another. She did not intend in our view-
to assert exclusive jurisdiction; that is disavowed.

Sir Charles Russell. — At all events, I may repeat the remark
which I just made— that Russia did assert territorial sovereignty, but
that she asserted it only on paper; that she never exercised it; and,
that, by the Treaty, she disclaimed it. That is the answer which I
make to Senator Morgan. I may point out now that whereas we state
the greatest distance between the islands at 190 miles, my friends put
the distance at 205 miles.

Lord Hannen.— Is that tbe difference between the Pribilof Islands
and the Aleutian Chain?

Sir Charles Russell, — No.

Lord Hannen. I thought it was.

Sir Charles Russell. — It is between "Attn Island," and the "Com-
mander Islands". At the same time I may point out that that does
not make any difference, because they say at the beginning of their
Case, that unless otherwise stated all measurements are given in
English statute miles. The English statute mile is 1,700 yards; but
the Italian mile of the Ukase is the same as a geographical mile, which
"is about 2,000 yards; so that practically there is no importance in the

difference of measurements.
879 Lord Hannen. — At page 16 the United States Case speaks of

the Pribilof Islands. It says :

It is of volcanic origin and far removed from other land, the nearest adjacent
points being Unalaska Island, at a distance of two hundred and fourteen miles to
the southward.

That is the distance of the Pribilof Island group.

Sir Charles Russell. — That is quite right my Lord ; that is another
passage.

Lord Hannen. — It would be a curious coincidence if that should be
stated to be 214 miles in both of the cases.

Sir Charles Russell. — The other is 205.

Lord Hannen. — Yes, I beg your pardon.

Sir Charles Russell. — The distance from Attn to the Commander
Islands is stated to be 205 statute miles.

Lord Hannen. — As a matter of fact, I took some steps to ascertain
the exact distance and I believe it is 175 miles from Attn Island to the
Commader Islands.

Sir Richard Webster. — We put it at 195 miles, and they say it is
205. It is not a matter of any importance.

[Sir Richard Webster indicated the position on the map.]

Sir Charles Russell. — I have said, here is a broad and bold asser-
tion of sovereignty by Russia. If Great Britain and the United States
had acquiesced in that assertion, then there might have been possible
grounds for putting forward a claim grounded upon acquiescence, or, as
lawyers would call it, upon estoppel against the acquiescing or consent-
ing Powers. How did they act? First of all, how did the United States
Government act? I have referred you to page 132 of the Protest of
correspondence, in Appendix to the United States Case, united states.
Volume I and on that page is to be found Mr. Quiucy Adams's letter
of the 25th of February, 1822, in which he says :

I am directed hj the President of the United States to inform you that he has seen
with surprise in this edict the assertion of a territorial claim on the part of Russia,
extending to the Blst degree of north latitude on this continent, and a regulation

134 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

interclictinj;: to all commercial vessels other than Russian, ujion the penalty of seiznre
and confiscation tho approach upon the high seas withiQ 100 Italian jniles of the
shores to which that claim is made to apply.

There is nothing more in that letter which I need read, except at the
top of page 133, where you will find this sentence:

To exclude the vessels of our citizens from the shore beyond the ordinary distance
to which the territorial jurisdiction extends has excited sitill greater surprise. This
ordinance alfects so deeply the rights of the United States. —

And so on. Now M. de Poletica does not shrink from the assertion
of what his case is, and at page 133 of volume I of the Appendix to the
Case of the United States is his letter in which he says boldly.

I shall be more succinct, Sir, in the exposition of the motives which determined
the Imperial Government to prohibit foreign vessels from approaching the north
west coast of America —

880 You will observe the use of this phrase:

belonging to Russia within the distance of at least 100 Italian miles. This meas-
ure, however severe it may at first appear, is after all but a measure of prevention.
It is exclusively directed against the culpable enterprises of foreign adventurers
who, not content with exercising, upon the coasts above mentioned, an illicit trade,
very prejudicial to the rights reserved entirely to the Russian-American Company,
take upon them besides to furnish arms and ammunition to the natives in the Rus-
sian possessions in America, exciting them likewise in every manner to resist and
revolt against the authorities there established.

I pause for one moment. You will observe that he speaks there of
" the exposition of the motives " which have prompted this. I want to
point out that my learned friend, in treating of what was the effect of
this legislation of Russia, has confounded motive with effect. It may
well be that my friend is quite right in saying that the motive which
the Eussian Government had was to protect this trade and commerce,
and these interests, on the coasts. That might have been its motive;
but its legislation took the form of an assertion of territorial sov-
ereignty to the extent which I have mentioned. Then M. de Poletica
goes on to say:

The American Government doubtless recollects that the irregular conduct of
these adventurers, the majority of whom was composed of American citizens, has
been the object of the most pressing remonstrances on the part of Russia to tiie Fed-
eral Government from the time that diplomatic missions were organized between the
two countries.

Then a little lower down he says :

Pacific means not having brought any alleviation to the just grievances of the
R issian American Company against foreign navigators in the waters which environ
their establishments on the north-west coast of Ajiierica, the Imperial Government
saw itself under the necessity of having recourse to the means of coercion, and of
measuring the rigour according to the inveterate character of the evil to which it
wished to put a stop.

He then procc eds :

I ought in the last place to request you to consider. Sir, that the Russian posses-
sions in the Pacific Ocean extend on tlie North-west coast of America from Behring
Sea to the 5l8t degree of north latitude, and on the opposite side of Asia, and the
islands adjacent, from the same strait to the 45th degree.

The Tribunal will remember that in the Dkase of 1799 the claim was
only made to the 55th degree.
Then M. de Poletica proceeds:

The extent of sea of which those possessions form the limits, comprehends all the
conditions which are ordinarily attached to shut seas (mers ferm^es) and the Russian
Government might consequently judge itself authorized to exercise upon this sea

ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 135

the right of sovereignty, aud especially that of entirely interdicting the entrance of
foreigners. But it preferred only asserting its essential rights, without taking any
advantage of localities.

That is he says in effect: — This is a shut sea: We are entitled to

treat it as a shut sea: We are entitled to treat the whole expanse of

Behriug Sea as a territory in the sense of excluding from that

881 every person whom we choose not to admit; but we limit our
practical assertion to 100 Italian miles from the coast ".

Now how is this met?

Mr. Justice Harlan. — Does he mean to apply the phrase "shut seas"
only to Behring Sea?

Sir Charles Russell. — I do not affirm that he does.

Mr. Justice Harlan. — I thought you said Behring Sea just now.
That was the reason I asked you.

Sir Charles Russell. — I think he extends it even more widely than
to Behring Sea. That makes my position, of course a stronger one. I
think you are right, Sir.

How does Mr. Adams meet this? I turn to page 134, at the third
paragraph, after stating the nature of the pretension he says:

This pretension is to be considered not only with reference to the question of terri-
torial right, but also to that prohibition to the vessels of other nations, including
those of the United States, to approach within 100 Italian miles of the coasts. From
the period of the existence of the United States as an independent nation, their ves-
sels have freely navigated those seas, and the right to navigate them is a part of that
indep( udence.

With regard to the suggestion that the Russian Government might have justified
the exercise of sovereignty over the Pacific Ocean as a close sea, because it claims
territory botli on its American and Asiatic shores, it may suffice to say that the
distance from shore to shore oif this sea, in latitude 51^^ north, is not less than 90° of
longitude, or 4,000 miles.

There, no doubt, Mr. Adams was speaking of a wider expanse of the
ocean.

As little can the United States accede to the justice of the reason assigned for the
prohibition above mentioned. The right of the citizens of the United States to hold
commerce with the aboriginal natives of the northwest coast of America —

I beg attention to this adoption of this phrase*" northwest coast".
We have seen how the phrase was used by M. de Poletica. Mr. Adams
is adopting it, and he says:

The right of the citizens of the United States to hold commerce with the aboriginal
natives of the Northwest Coast of America without the territorial jurisdiction of
other nations —

That means outside the territorial jurisdiction —

even in arms and munitions of war, is as clear and indisputable as that of navigating
the sens, etc.
That right has never been exercised in a spirit unfriendly to Russia, etc.

On the next page, M. de Poletica replies :

In the same manner the great extent of the Pacific Ocean at the fifty-first degree of
latitude can not invalidate the right which Russia may have of considering that part
of the ocean as close. But as the Imperial Government has not thought fit to take
advantage of that right, all further discussion on this subject would be idle.

Then I do not think I need trouble you with that. But after that
comes a very important communication from Mr. jMiddleton,who

882 was the Minister of the United States at St. Petersburgh, to Mr.
Adams, Secretary of State at Wasliington: and it will be seen

that once this bold assertion on the part of Russia was met face to face,
the operation — if I may use it in relation to a great Power of whom I

136 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.

desire to speak witli all possible respect — the operation known as
" climbing down " began, as you will see, from this very letter. He says
on page 130:

To Mr. Speranslcy, Governor General of Siberia, ■who had been one of the committee
originating this measure. I stated my objections at length. He informed me that the
first intention had been (aa Mr. Poletica afterwards wrote you) to declare the northern
portion of the Pacific Ocean as mare clauaum —

I ask my friends, can there be any doubt what the " northern portion
of the Pacific Ocean" there meant, can there be any doubt that it
included Behring Sea? —

but that idea being abandoned, probably on account of its extravagance, they deter-
mined to adopt the more moderate measure of establishing limits to the maritime
jurisdiction on their coasts, such as should secure to the Russian American Fur Com-
pany the monopoly of the very lucrative traffic they carry on. In order to do this
they sought a precedent, and found the distance of 30 leagues, named in treaty of
Utrecht, and which may be calculated at about 100 Italian miles, sufficient for all
purposes.

I need not say that what was once done by Treaty is no justification
for what has been done without Treaty.

I replied ironically that a still better precedent might have been pointed out to
them in the papal bull, of 1493, which established as a line of demarcation betAveen
the ^Spaniards and Portuguese a meridian to be drawn at the distance of 100 miles
west of the Azores, and that the expression " Italian miles" used in the ukase very
naturally might lead to the conclusion that this was actually the precedent looked
to. He took my remarks in good part, and I am disposed to think that this conver-
sation led him to make reflections which did not tend to confirm his first impres-
sions, for I found him afterwards at difi"erent times speaking confidentially upon the
subjt'ct.

For some time past I began to perceive that the provisions of the iikase would not
be persisted in. It appears to have been signed by the Emperor without sufficient
examination, and may be fairly considered to have been surreptitiously obtained.
There can be little doubt, therefore, that with a little patience and management it
will be molded into a less objectionable shape. But in this, as in other matters, the
7'€vocare gradum is most difficult. Since the receipt of your dispatch No. 12, I have
had several conferences with the secretaries of state, and we have discussed fully and
freely the state of the question as left by Mr. Poletica with your letter unanswered in
his pocket

I informed him that I intended to ask a formal interview with Coimt Nesselrode
before his departure, for the purpose of taking up this subject and urging some
decision upon it, as I never had been able to ascertain officially whether the offensive
provisions of th