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PROVISIONS OF tllE TIlEATt WBTWEEN THE UNITED STATES OF" AMEIHCA AND QBE/it BRITAIN, CONCLUDED FEBRUARY 29, iSfiJi PARIS CIIAMEROT & REN01[JARB, I»RlNTEttS> 19, ?.UE PES SAiNxa-MfeRjiia, to 1893 I mil* T 1 1 ORAL ARGUMENT OP JAMES C. CARTER, ESQ. rr \ KtlR-SEAI. ARItlTRATION. ORAL ARGUMENT OF JAMES C. CARTER, ESQ., ON BEIIA!.F OF THE UNITF-ID STATES linFORE THE TRIBUNAL OF ARBITRATION CONVENED AT l^^lUS UN D Ell TIIK PROVISIONS OF TIIK TREATY IlETWEEN THE UiNITEI) STATES OF AMERICA AND GREAT BRITAIN, CONCLUDED FERRUARY 29, 1892. J PARIS CHAMEROT & RENOUAIID , PRINTERS, 19, RUE DKs sa:nts-peres, 19 1893 I/" By'transffeT jAN 211909 .St. Jl ■■ mii 4, ilMpi -k }.^ ORAL ARGUMENT OF MR. CARTER SEVENTH DAY. APRIL 12-', 1893 The Tribunal convened pursuant to adjournment. The President. 1 will begin by reading the order of tiie Tri- bunal on the matter which was argued lately. I mean to say Ihc matter of the Supplemental Report of the Rritish Bering Sea Com missioners. I will read it over in Enghsh : It is ordered that the document entillod a " Supplementary Ilepoil of the Uritish Behring Sea Commissioners "dated January 31, 181»3,aiid signed by George Baden-Powell and George M. Dawson, and delivered to the indivi- dual arbitrators by the Agent of Her Britannic Majesty on the 2:)tli day of March 1893, and which contains a criticism of, or argument upon, tlie evi- dence in the documents and papers previously delivered to the arbitrators, be not now received, with liberty, however, reserved to counsel to adopt such document, dated January 31, 1893, as part of (heir oral argument, if they deem proper. The question as to the admissibility of the documents, or any of them constituting the appendices attached to said document, of January 31, 1893, is reserved for further consideration, without prejudice of the right of counsel, on either side, to discuss that qui^stion, or the contents of the appen- dices in the course of the oral argument. I will proceed to road the second order. Sir Gliarles Russell. Mr. President, 1 should like in connec- tion with the order of the Tribunal which was read, to express again what we have already expressed in written communicalion- our readiness to hand a copy of the document referred lo, the Supplementary Report, to the counsel for the United States, with- out prejudice to their position or without prejudice to any right which fhey conceive they have in relation to its future admissi- bihty. The President. You may do that if you like. If the gen- tlemen choose to receive it they are free to do so; but if you would like to have it for incorporation into your oral argument, (hen, of S ORAL ARfiUMENT course, it will l)o pari of your oral argument, and I think the gen- tlemon opposite will not have any reason for nol receiving it, Mr. Justice Harlan. Of course the American counsel ought to receive it now, in order that Ihoy may examine Ihe appendices. Sir Charles Russell. Certainly. Mr. Phelps. Wo shall accept llie proposal of my learned friend and will be very glad to receive copies. Sir Charles Russell. The Tribunal will recollect that we made that offer at the time the document was originally produced. The President. You did. I will now read a second order bearing upon Ihe question which was proposed, 1 think, by Mr. Phelps at the end of Ihe last sitting, concerning the immediate hearing of the motion which had been lately proposed after the first motion had been argued : It is ordered thai tlie argument aiul consideration of the motion made hy the United States of America on the 4th day of April, 189.'3, to slriive out cer- tain parts of tiie Counter Case and proofs of ttie Covernment of Great Britain be postponed until such time as may be hereafter indicated by tiie Tribunal. Now, gentlemen wo are ready to hear you speak upon the me- rits of the case, and the principal points of the case, and we are veryanxious to begin, so that we may enter as soon as possible into the consideration of this important matler. Mr. Carter. Mr. President. Sir Charles Russell. I beg my friend's pardon. I desire to interrupt him for one moment. It was arranged by my learned friend, .Mr. Phelps, and myself, with the consent of my friend, Mr. Carlor, that before the argument was opened it should be explained to Ihe Tribunal the course that had been agreed upon as to the order of the argument of counsel, between my learned friends and myself, subjecl always to that ar- rangenienl meeting the approval of Ihe Tribunal. It is necessary, I think, Ihat I should make this word of explanation, because, as the Tribunal knows, the British tiovernment is here complaining ' of the seizure of certain vf^ssels under circumstances which, it alleges, do nol justify that seizure, and, therefore, in the ordinary course of things il might be that it lay upon counsel of (ireat Bri- tain, as the J)arly originally complaining, to open the case; but inasmuch as Ihe I'niled Slates have admitted all the facts that it would be essential to prove to establish what in law is called a pr^ma facie case ; namely, in as much as the fact of the seizures has been admitted, and inasmuch as the I'nited StalesCiovernment has adopted Ihe responsibility for those seizures, it would be apparent to the Tribunal that the prima facie case on the part of Great Bri- tain would be of a merely formal kind, and therefore that the Vm- mt^um id I think the geu- 1 receiving- it, can counsel ought ne the appendices. 'my learned friend lied thai we made ly produced. lu! question which of I he last sitting, m which had been irgued : r I he motion made by 93, to strike out cer- menl of Great Mritain ated by tlie Tribunal, peak upon the me- case, and we are on as possible into rdon. I desire to helps, and myself, 'fore the argument lal the course that ;ument of coimsel, always to that ar- 1. It is necessary, lation, because, as here complaining ' istances which, it re, in the ordinary uiscl of Great Bri- pen the case; but 11 the facts that it in law is called a of the seizures has esCiovernment has would be apparent part of (Ireat Bri- efore that the I'ni- OF MH CAHTEH. 3 ted States are in the positicm in which they are required to justify upon grounds consistent with the law the seizures of whicli com- plaint is here made. Under those circumstances it has been agreed between us tliat it would be a more regular, more convenient course for my learned friends, upon whom, in the way I have mentioned, the onus proband'i lies, to open their case, it' has b<'en arranged that my learned friend Mr. Carter shall open, to be foHowed by my learned friend Mr. Coudert; that then (he coimsel f(jr Great Britain, my friend Sir Uichard Webster, and my friend Mr. Bobinson, and myself, shall address the Tribimal ; and that the ultimate reply shall rest with my learned friend Mr. Phelps; this arrangement being, of course, as the Tribunal will understand, and as I have intimated, subject to such views as the Tribunal may think lit to throw out and which their convenience may suggest as to any inter- mediate stages of i'.ie argument, and subject also, of course, to any necessity which may arise for re-arguing a particular point. Of course the Tribimal will have in its mind that we have made a state- ment which did not directly arise upon the motion disposed of as to the division of these ([uestions. I do not intend to say any- thing at this moment upon that; but if there be upon the part of my learned friend an attempt ia the argument to deal Avilh the question of regulations coincidently with the previous questions, we shall have to submit to this Tribunal that that is not the course proper to be pursued. I beg my learned friend's pardon for having Interrupted him. The President. The Tribunal is quite ready to approve of all the arrangements which the counsel find are suitable to theii own convenience ; and the arrangement as slated by Sir Charles Russell, if agreed upon by all the other counsel connected in the argument of this case, will be perfectly agreable to the Tri- bunal. I will only state one thing. It is thai in the arrangement of the arguments thai are to take place and the plan and ordering of the arguments that are to take place on either side, it would be for ihe convenience of the Tribunal if the learned counsel on either side were kind enough to keep separati> the argument of the mat- ters relating to the legal points and that of the mailers relating to reguhilions; I mean to say to argue the points one after another as much as possible — to keep the five legal points separate from what concei-ns r;-gulations; it would be more convenient for the Tribunal if these matters could be held separate in the considera- tion which the Tribunal will have of them, and, consequently, it would be more convenient also if the counsel were to act in accor- dance with this mode of procedure. Now, Mr. Carter, the Tribunal is ready to hear you. i ORAL ARGUMENT Mr. Carter. Mr. Prosidont : il would bo evidonce of insonsi- bilily on my part if in opening llio discussion upon llio important (juoslions with which wc aii> to deal I shouhl fail to express my sense of the novelly, liie importance, and the dignity of the case, and of the higli character of the Tribunal which il is my privilege to address. Yon, Mr. President, in acknowledging the honor con- ferred upon you by your election as I'resident, expressed in appro- priate language those aspirations and hopes which are excited and gratified by so signal an attempt as this to remove all occasion for the employment of force between nations by the substitution of reason in the settlement of controversies, I beg to express my concurrence in those sentiments. Nor should I omit a grateful recognition of the extreme kind- ness with which the agent and counsel on the part of the United States Government have been received. Not only has tiiis magni- ficent building with all its appliances been freely olTered for the deliberations of the Tribunal itself, but every aid >'nd assistance which we as counsel could desire have been freely extended to us. We recognize in this a fine and generous hospitality, worthy of ^"rance and her great capital — the fair and beautiful capital of the world. Mr. President, in reference to the statement which was made by my learned friend, Sir Charles llussell as to the order of pro- ceeding which counsel have agreed to adopt, subject to the approval of the Tribunal, I have only this to say; we do not distinctly recog- nize that there is any special onus prohnndi resting upon the United States to , ubstantiate its contention in reference to the dis- puted j)oints. Those questions in our view are submitted to the Tribunal, and it is for the counsel on each side alike, equally to substantiate their contentions. Our own views in respect to the circumstances which make it proj)er that the affirmative should be taken by the United States are that they are the party seeking for the affirmalivc action of the Tribunal in their favor. I have no more to add in reference to that, and there is no essential point of dilference between us. Touching the suggestion which you, Mr, President, have just made respecting the importance of observing a separation between the questions, so to speak, of right and those which concern regu- lations, I shall endeavor to exactly comply with that recommen- dation. It will not be entirely possible altogether to separate those questions, but the direct discussion of them I shall keep entirely separate. Certain considerations concerning the question of regulations will arise and become material and important upon the argument of the (|uestion of property, but I shall only touch the question of regulations in the argument of the question of i m^ k'idonoe ol' insonsi- ij)()n llu' important fail lo express my ligaily oC the case, 1 it is my privilege ing the honor con- xpressed in appro- ich are excited and >ve all occasion lor Ihe subslilntion of )eg to express my the extreme kind- lart of the United dy has this magni- cly olTered for the aid >ind assistance >ly extended to us. )italily, worthy of itiful capital of the \ which was made the order of pro- ect to the approval )t distinctly recog- resting upon the iferencc to the dis- e submitted to the e alike, ecjually to ) in respect to the rmalive should be the party seeking cir favor. I have no essential point resident, have just eparation between lich concern regu- li tliat recommen- ether to separate -hem I shall keep rning Ihe question [id important upon I shall only touch >f the question of OK MR. CAUrtlH. 8 properly to the extent to which it seems to mo that they may be material. The general and direct discussion of the ((uestion of regulations I shall endeavor carefully to separate from Ihe rest of my argument. In any discussion, Mr. President, of these important questions which the Tribunal is to determine it seems to me that it will be important in the lirst place that the Tribunal should have before it some sketch, as brief and concise as possible, of the subject matter of the controversy, of the particular occasions out of wliich the controversy grew and the successive steps through which it has from time to time passed, until it is has reached tlie stage at which w^e now find it. The learned arbitrators will, 1 think, thus be able to breathe the atmosphere, as it were, of the case; to approach the questions as the parlies themselves approached them, and thus be able to better;|understand and appreciate the respec- tive contentionr, of the two parlies. This, therefore, will be my apology, if apology were needed, for endeavoring to lay before you a sketch as concise as I shall be able to make it, of the controversy from the beginning, before pro- ceeding to discuss the particular questions which have arisen. The case has reference, as you are well aware, to the great fur- sealing interests which are centered in Bering Sea and in the waters which adjoin that sea. Those interests began to assume impor- tance something like a century ago. During most of the 18th cen- tury, as all are aware, the efforts and ambitions of various Euro- pean powers were directed towards the taking possession, the settlement, and the colonization of the temperate and tropical parts, so to speak, of the American continent. In those ellorts, Russia seems to have taken a comparatively small part, if any part at all. Her enterprise and ambition were directed to these North- ern seas, seas which border upon the coasts which in part she already possessed, the Siberian coast of IJering Sea. From that coast explorations were made by enterprising navigators belonging to that nation, until the whole of Bering Sea was discovered and the coasts on all its sides explored. The Aleutian Islands, forming its southern boundary were discovered and exploited, and a pari of what is called Llie Northwest Coast of the American continent south of the Alaskan Peninsula, and reaching south as far as the 5ith or 50lh degree of north latitude was also explored by Rutsian navigators and establishments were formed upon it in certain places. The great object of Russia in these enterprises and explorations was to reap for herself the sole profit and the sole benefit which could be derived from these remote and ice- bound regions; namely, that of the fur-bearing animals which inhabited them and which were gathered by the few natives, which 6 OllAL AlUiLMENT iiilml)ite(l those regions. It was to obtain for licrsclf the benefit of those animals and of the trade witli the natives who were enga- jicd in gathering them that constitnded the main object of the original enterprises prosecuted by l{ussian navigators.' Tliev had at a very early period discovered what we call the (Commander Islands on the westej-n side of the IJering Sea, which wei-e then us they are now, one of the principle resorts and breeding places of the fur-seals. They wer(> carrying on a very large, or a conside- rable, industry in connection with those "animals upon those islands. I'rior to the year 1787 one of their navigators, Capt. Pribilof, had observed very numerous bodies of fur-seals making their way northward through the passes of the Aleutian chain. Whither they were going he knew not, but, from his knowledge of the iiabits of the seals on the Commander Islands, he could not but su|)pose that there was somewhere north of the Aleutian chain in the lieriny Sea another great breeding place and resort for these animals. He therefore, expended much labor in endeavoring to discover these resorts ami in the year 178(i, I think, on one of bis voyages, he suddenly found himself in the presence of that tremen- dous roar — a roar almost like that of Niagara, it is said — which proceeds from the countless multitudes of animals upon the islands. He knew then that the object lor which he was seeking bad been attained; and waiting until the fog bad lifted, he discovered him- self in the presence of the islands to which bis name was after- wards given. That was in 1780. Immediately following that discovery, sometimes individually and sometimes associated in companies, persons resorted to those islands, which were uninhab- ited, and made large captures of seals from them. This mode of taking them was by an indiscriminate slaughter of males and females; and of course it was notjlong before the disastrous eflects of that method became apparent. They were greatly reduced in numbers, and at one or [more times seemed to be upon the |)oint almost of commercial extermination. By degrees they gradually learned what the laws of nature were^in respect to the preservation of such a race of animals. They learned that they were highly polygamous in their nature, and that a certain draft could be taken from the superlluous males without sensibly depreciating the enor- mous numbers of the herd. Learning those facts, they by degrees established an industry upon the islands, removed a considerable number of the population of one or more of the Aleutian Islands to that place and kept them permanently there for the purpose of guarding the seals upon the islands, and taking at the time suitable for that purpose such a number of superfluous males as the know- ledge they bad acquired taught them could be safely taken. i liorself the bonoflt ves who were onj^a- niiiin object of ilie ip:al()rs. Tlu'v luul ill llic Coinmaruler which were then its I breciling phices of large, or a conside- limals upon IImisc lors, Capt. Prihilof, s making ilioir way 1 chain. Whither knowledge of the S he could not hut e Aleutian chain in nd resort for these in endeavoring to liink, on one of his nceof tiiat Ironien- it is said — whidi lis upon tlie islands, j seeking had been he discovered him- is name was after- oly following that imes associated in lich were uninhah- 'm. This mode of iter of males and le disastrous effects greatly reiluced in he upon the |)oinl ees they gradually to the preservation they were highly raft could he taken ireciating the enor- ts, they by degrees ved a considerable le Aleutian Islands for the purpose of it the time suitable lales as the know- afely taken. OF MH. CAitTEH. 7 Finally the system which they established grew step by step more regular and precise; and sometime, I think 1 may say, in the neighborhood of 1845, they bad adopted a regular system which absolutely forbade the slaughter of females and conhned the taking to young males under certain ages and limited the taking to a cer- tain annual number. Under that reasonable system, conforming to natural laws, the existence of the herd was perpetuated and its numbers even largely increased; so at the time when it passed into the possession of the United States I think I may say it was true that !he numbers of the herd were then equal to, if not greater than ever had been known since the Islands were hrst discovered. A similar system had been pursued by the Russians with similar ell'ect upon the Commander Islands, possessions of their own on the western side of the Bering Sea. The advantage of these results, so beneficial to Russia, so bene- ficial to mankind, may be more easily perceived by comparing them with the resultr which have llowed from the discovery of other homes of the fur-seal in other seas. It is well known that south of the equator and near the southern extremity of the South American continent there were other islands, Masai'uera, Juan Fernandez, Falkland Islands and other places, where there wore seals in almost equal multitudes. They were on uninhabited islands. They were in places where no protection could be extended against the capture of them. They were in places where no system of regulations limiting drafts which might be made upon them could be established, and the consequence was that in a few short years they were practically exterminated from every one of such haunts and have remained ever since practically, in a commercial point of view, exterminated, except in some fewj)laces over which the authority of some power has been exercised, and where regulations have been adopted more or less resembling those adopted upon the Prihilof Islands, and by which means the race has to a certain extent, although comparatively small, been preserved. That was the condition of things when tlu^se islands passed into the possession of the United States under the treaty between ihat Government and Russia of 1807. At first, upon the acquisi- tion by the United States Government, its authority was not imme- diately established, and conseciuently this herd of seals was laid open and exposed to the indiscriminate ravages of individuals who might be tempted thither by their hope of gaining a profit ; and the consequence was that in the first year something like 240,000 seals were taken, and although some discrimination was attempted and an effort was made to confine the taking as far as possible to males only, yet those efferts were not in every respect successful. That # V.r X^gg£g~g i i ij..J. ' l ' VmSf^U BSff 8 ORAL ARGUMKNT great drafl llins irregularly and indiscrimiiialely made upon llicm had iindouhledly an unlavorahle ellecl ; Itnl llie follow ing year llic I'liilcd Slates sneeeedeil in esla])lisliiny' its authority andat once re-adopted the system which had heen up to that time pursued by Hussia and which had heen followed by such advantageous re- sults. In addition to that and tor the purpose of further insuring the preservation of the herd, the United Slates (iovernment resorted to national legislation. Acts were passed, the Hrst of them us early as the year 1870, designed to protect the seal and other fur- bearing animals in Bering Sea, and the oilier possessions recently acfpiired from llussia. At a later period this statute— with others that had heen subsequently passed — was revised, I think in the year 187:1, when a general revision of the statutes of the Inited Stales was made. They were revised and made more stringent. II was made a criminal olfence to kill any female seal; and the taking of any seals at all except in pursuance of the authority of the I'nited States and under such regulations as it might adopt was made a criminal otlence. Any vessel engaged in the taking of f(Mnale seals in the waters of Alaska, according to the phrase used in the statute, was made liable to seizure and contiscatirm ; and in this way it was hoped and expected that the fur-seals would be preserved in the future as completely as they had been in the past and that this herd would continue to be slill as productive as beft)re, and if jxtssihle made mode productive. J'hal system thus established by the I'nited Slates in the year 1870 produced the same resull as had followed the regulations established by Itussia. The Tnited Stales Government was enabled even to take a larger draft than Hussia had prior to thai time made upon the herd. Hussia had limiled herself at an early period to the taking of somewhere between 30 and 40 thousand seals annually, not solely perhaps for the reason that no more could be safely taken from the herd, but also from the reason, as I gather from the evidence, I hat at that time the demand for seals was not so great as to justify the putting of a larger number of skins upon the market. Al a later period of the occupation by Hussia, her drafts were increased. At the time when the occupation was transferred to the I nited States, I think they amounted to somewhere between 80,000 and 70.000 annually. " The I'nited States, as I say, took 100,000 from the beginning, and continued to make Ihose annual drafts of 100,000 down to the year 1890. That is a period of some thing like 19 years. The taking of this number of 100,000 did not, at lirst, appear to lead to any diminution in the numbers of the herd; and it was only in the year 1890, or a few years prior to that time, that a diminution in the numbers of the herd Avas ■i ffp < w^ i i i..w<* i;f i A i r . OF Mil. CAniFH. ly made upon Ihem folldw ing year llio Inirily and at once llial linio pursued li advantagcMtus ro- irlhcr insuring liio vornmcnt resdrted le first (if tlicni as seal and oilier fur- Dssessions recently itulc — with others sed, I think in the ules of the Inited de more stringent, laio seal; and tlie of the authority of as it might adopt igcd in liio taking fling to the pjiraso and confiscation. ; he fur-seals would 'V had been in the II as productive as J'hat system thus produced the same hI hy Russia. The take a larger draft the herd. Russia cing of somcwh.ere solely perhaps for rom the herd, but Jence, that at that justify the putting ia, her drafts were was transferred to mcwhere betw'ecu !es, as 1 say, took nakc those annual is a period of some berof 100,000 did n the numbers of ' a few years prior •s of the herd was first observed. This diminution was at that time attributed to causes of which I shall |)res('ntly say something. Such was the industry established hy the United Slal(!s. It was a very beneficial industry — beneficial, in the first instance, to herself. She iiad adopted the practice of leasing these islands upon long terms — twenty years — to a [wivale corporation; and those leases contained an obligation to pay a large annual sum in the sluipe of a revenue tax and a gross sum of some H 60,000 as rent. In addition to that, the lessees were required by the terms of the lease to pay to the I'nited States (lovcrnment a certain sum upon every seal captured hy llieni, which of course resulted in the enjoyment by the I'nited Stales of a still larger revenue. It was beneficial to the lessees, for it is to be supposed, and such is the fact, that they were enabled to make a profit not withstanding the large sums they were conipelled to pay to the Tnited Slates Government upon the sealskins secured by them. Rut while it was profitable to the United Slates and profitable to the lessees, I may say — and this is what at all times I wish to impress upon this Tribunal — it was still more important and bene- ficial to the world at large. The fur-seal is one of the boun- ties of I'rovidence, bestowed upon manking in general, not for the benefit of this particular nation or that particular nation, hut for the benefit of all; and all the benefit, of course, which man- kind can get from that blessing is to secure the aimual taking, use and enjoyment of the increase of the aninuil. That is all they can obtain from it. If they seek to obtain more, it is an abuse of the blessing, involving destruction, necessary destruc- tion, and they soon deprive themselves of the benefit altogether. This, therefore, was the benefit to mankind which was made possible, and which was enjoyed by mankind by this particular mode of dealing with the fur-seals which had been established and carried on upon the Pribilof Islands. Mankind got the benefit of the entire annual increase, and at the same lime the stock was perpetually preserved and kept from any sort of peril; and in that benefit the citizens of the United States enjoyed, of course, no advantage over the rest of the world. The wliole product of the herd was contributed at once to commerce, and through the in- strumentality of commerce was carried all over the world to those who desired the sealskins, and those who desired sealskins, whe- rever they might be on the face of the globe, and whatever na- tion they might inhabit, got them upon the same terms upon which the citizens of the United States enjoyed them. This con- tribution of the annual product to the purposes of commerce, to be dealt with as commerce deals with one of its subjects, of course amounted substantially to a putting up of the whole annual pro- to OH.VI. .VH(iUMi:.NT I I /"■;,■• :!! iy duel of llic seal al aucliMn. and it was awarded to (he lii^licsl liiddtM', wlicrovcr Ik^ iniglil dwell. The oH'cct of this was, also, ns wo shall have occasion to sec in the course of this discussion, to hiiild up and niainlain an impor- tant industry in (ireat Itrilain. It was thei-(> that the sealskins were manufactured and prepared for sale in the iuark(!l, and thou- sands of people were engaji^ed in that industry, many more, indeed, than were engaged in the industry of gathering the seals upon the I'rihilof Islands, i'hat. particular henelil was secuiod lo Ureal Uri- luin in conse(|uence of this industry. In the lew yeais |)rece(ling IS!M), tin; riovernnient of the United States WIS made aware ofa jxM'il to the industry which had thus heen estahlished, and which it was in the enjoyment of, a [)eril to the preservation of this race of seals, a peril not proceeding from what may he called natural caus(>s, sucli as the killing hy whales and other animals which |)rey upon the seals in the water, hut a |ieril proceeding from the hand (d' man. It was found that the practice of pelagic sealing, which had for many years, and indeed from the earliest knowledge of these regions, heen carried on to a very limited extent hy the Indians who inhahited the coasts for th(! purpose of ohtaining food for themselves and skins for their clothing, and which had made a limited ilraft upon the herds in that way — it was found that this practice was heginning to he extended so as to he carried on hy whites, and in large vessels cap- ahle of proceeding long distances from lie shore, of encountering the roughest weather, and of carrying hoats ami hoatmen and hun- ters, armed with every appliance for taking and slaughtering the seals upon their passage through the seas. That practice hegan, I think, in the year 1876, hut at tirst its dimensions were small. The vessels wen^ lifted out mostly from a port in Hristish (lolumhia, and confined their enterprise to the Xorth I'acitio Ocean, not enter- ing Bering Sea at all; and their drafts upon the seals even in the North Pacific Ocean were at first extremely small, only a few thousands each year. But the husiness was found to he a prolit- ahle one, and, of course, as its profit was perceived, more and more were tempted to engage in it, and a larger and larger invest- ment of capital was made in it. More and more vessels prose- cuted the lishery in the North Pacific Ocean, and in 1883, for th'e first time, a vessel ventured to enter Bering Sea. The learned Arhitrators will perceive that up to this time, dur- ing the whole of the Bussian and the whole of the American occupation of these islands, there had heen no such thing as pelagic sealing. Those two nations had enjoyed the full henefit of this property, the full henefit of these herds of seals, in as complete a degree as if they had heen recongized as the sole proprietors of L.ii^A*;Ji..^?^V?*-- f'll In llic llif(lios(, • icc.ision to soe in liiil.iin ail impor- liiil llio sealskins i"< morn, iiulooil, "' souls upon Iho ikmI lo (Jreut iJri- uMit of Iho IJnilod which hiid Ihns X'lit of. a peril lo |troc('('(linf,nnninir lo ho argo vessels cap- , of encounlering )oatnien and hun- sUuighteiing the I practice hegan, inns were small. ristishCnInnihia, Ocean, not enler- 'oals even in the iiall, only a few id to be a prolit- Mvod, more and rid larger invcst- 13 vessels prose- in 1883, for th-e this time, dnr- 1 the American thing as pelagic 1 benefit of this 1 as complete a ! proprietors of OF MH. CAHTEH. 11 them, and as if a title in them, not only while Ihoy were ashore and npon llie breeding islands, hut while they wore absent upon their migrations, had Immmi recognized in them during that whole period; or as if, Ihei-e had been some regulation among the na- tions absolutely prohibiting all pelagic s(>aling. I°p to the pcM'iod when pelagic sealing began to be extended, as I have said, those advantages were excliisiv(dy enjoyed by Hussia and the Cnited States; and at lirst, as I have said, these enterprises did not extend into Hering Sea, hut were carried on in the North I'acilic Ocean, and south and east of Ihe Aleutian <-hain. Why Hering Sea was thus carefully abstained from, it may perhaps l)(^ diflicult at the present time altogether to say. It may be for the reason that it was fartheroll", more difficult to reach. It may be for the reason that the pidagic sealers did not ai lirst sup- poses that they had a right to enter Hering Sea and lake the seals there, for it was well known that during the whole of tlu! Hussian occupation, lUissia did assert for herself nn exclusive right to all the [iroducts of that region of the globe; and it was also of course well known lo all (lovernments, and to these pelagic sealers, that the United States had, when they acceded to the sovereignty over these islands, asserted a similar right, and made the jn-actice of pelagic sealing, in Bering Sea, at least — perhaps farther, but in Hering Sea, at least — a criminal oll'ence under their law. Hut from whatever cause, it was not until the year 1883 that any pcdagic sealers ventured into Hering Sea. During tliatyear a single vessel did enter there, took a large catch, was very successful, and was not called to any account; and this successful experiment was, of course, followed during the succeeding years by many repeti- tions of the same enterprise. The extent to which pelagic sealing was thus carried on in Bering Sea, its probable consequences upon the herds which made their homes npon the Hribilof Islands, was not at lirst considered either by the I'niled States, or by the lessees of the Islands. There was no moans by which they could easily find out how many vessels made such excursions, and they did not at first seem to snppose that their interests wore particularly threatened by it. Consequently, for the first two or three years no notice seems to have been taken of these enterprises by the (jovernment of the United States, although she had laws made against them. Hut in 4886, this practice of taking seals at seabecame so largely extended that it excited apprehensions for the safety of the herd; and it was perhaps thought at that time that there was already observable in the condition of the herd some damaging, destructive consequence of that pursuit of them by sea. The attention of the United States having buen called to the rassasssasH It OHAI, AUr.lME.NT I)racti(M\ that (lovemmont (Ictfriiiiiu'd to itrcvoiil it, nnd the lirsl method to wliich it resorted was an enforeemeut of llie hiws upon her stalnte-l)ook, which [)roliihiled the piactice and siihjecled all vessels eiigaf,'ed in it to seizure and conliseation. Instructions were accordingly given to the cruisers of the I'niled Slates to sup- press the practice^ and to enforce those laws. The result was that in the year I8S6 three Hrilish vesscds and some American vessels were taken engiij^ed in the pursuit illej,^ally under the laws of the United Stales. They were carried in and condcmined. These seizures were in 188(1. They were; followed hy protest on the |)arl of (heal Hritain and that protest was niaile hy a note addressed hy Sir lii<.nel Sackville West to Mr. Hayard. Sir Charles Russell. (jIvo us the reference, Mr. Carter, please, as yon go along. Mr. Carter. It is on page l.'JIJ, Vol. 1 of the Appendix to the Aiucrican Case : |i.i| ii •S'')' L. S. Sdckvllh Wis! Id Mr. lidijavd, WAHiiiNmoN, Srpl'-m'ii'r -JT, IHSG. (Received Scptoiiihei' 28.) Siii: I liavf llm honor lo iiifmin yon that llcr Miijt.'sty's Govemmpiit, have rcrcivcdu t.t!l('f,'i'.irii (Voiii tlio comiiiainlfM-iii-ciiict' ol'lifr Majesty's naval forces on llio I'acilic station ruspcctiiif,' lln; allegoil seizure of the lliree British (^o- lumhian seal scliooners by tlie llniled States revenue cruise Corwin, and I am in conse(|nenee instructed to request lo he fiiniisliod wil' uy pailiculars which the Llniled Slates (ioverunient may possess relative t(i s occuiience. 1 liave etc., L. S. Sackvh-i.k Wiost. That was the lirsl note addressed hy the Hrilish (Joveriiment in consequence of these seizures and, as the learned Arhitralors will perceive, it called only for information. Mr. Hayard, who was then the American Secretary of State, did not immediately resp md to this note. He could not give the requisite information. The local- ity as you will perceive, is exceedingly remote from Washington and communication with it could only be had on rare occasions. The opportunities for communication were very few, and therefore it was necessary, it was unavoidable, that a very considerable period of time would elapse before the United States could procure the information desired by the British (lovernment, and inform it of the particulars. But, of course, at that time the United States Government was called upon lo consider questions that would thus be likely lo arise and to determine the course it would be best to pursue in reference lo those questions; and Ihey were called upon at that time — they perhaps had been considerigit before, but at least at that time — to consider the exigency with which they were 8^-^- -^-U-J^-.w ww^wwgB! U'JUij:jjiiiniimiJ i» Ill it, and tlio first it of I lie laws upon ' luiil siil)j('('l(>(l all ion. Iiislruflions liltvl Slatos lo siip- riic rosiill was Ihat i AiiKM'ican vcssols lor flio liiws of llic nncil. )llo\vo(l l)y protest IS inado J)y a iioto ayanl. Air. Carter, please, ! A[)[)<'ndix lo the ant. *iwtT''tif>jMptiiii 16 OR AT, ARGUMENT !i 3) Tliat tlie Judge in liis cliarf.'e to the jury, after quoting the first article of the treaty of the .'tOth of March, 1807, between Russia and tiie United Stales, in which the Western boundary of Alasiia is defined, went on to say : Tlion he gives an extract from the Judge's cliarge. 4) Tiiat the jury brougiit in a verdict of guilty against liie prisoners, in accordance with which the Master of the Thnrnton, Hans (iuttonson, was sen- tenced to iinprisonnuMit for thirty days and to pay a fine of j(| liOO; and the mate of the TIfirnton, Norman, was sentenced to imprisonment fortliirty days and to pay a tine of $ iJOO; wliicli terms of imprisonment are presumably being now carried into effect. 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. Sir Charles Russell. I would be glad, if il is not inconve- nient t-1 my friend, if he would read llie grounds of the Judge's charge. Mr. Carter. Certainly. Sir Charles Russell. Beginning with Ihe words " All the waters ". Mr. Carter. This is the part quoted from the Judge's charge : 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 he 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 evidence, thai the defendants by themselves or in con- junction with oilier:!, did, or. or about the time charged in the information, kill any otter, mink, martin, sable or fur-seal, or 'her fur-bearing animal or animals, on th(! shores of Alaska or in the Heliring Sea east of 191] degress of west longitude, the jury should find the defendants guilty. That is the boundary in I'le Treaty — the western boundary named in the Treaty of cessio'i to the United States from Russia. Ttie jury shouKl find the defendants guilty, and assess their punishment separately at a line of not less than g-200 nor more than $ 1 ,000, or imprison- ment not more than six months, or by both such fine (within the limits herein set forth) and imprisonment. Lord Iddcsleigh continues ; You will observe from the facts given above, that Ihe aulhonties of Ihe United States appear to lay claim to the sole sovereignty of that part of Beh- ring Sea lying east of the westerly boundary of Alaska, as delined in the first article of the treaty concluded between the United Slates 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 (westerly?) from the mainland of Alaska. Jsmmmmuem OF Mn. CARTEH. 17 noting the first article issia and tiie United I defined, went on to large, inst the prisoners, in s (iuttonson, was sen- fino of $ liOO; and Ihe )ninc'nt lor thirty days nient are presumably mates of tiie Onward lergo penalties similar the Thornton. it is not inconve- nds of the Judge's words" All the c Judge's charge : treaty to the Western e to he considered as Mialties prescribed hy irefore, attach against ed. If, therelore, the llietnselves or in con- d in tiie inhirniution, fur-Leariiif,' animal or la east of 11):) degress iiiltv. weslorn hoimdary lies from Russia. ess their punishment ^ 1 ,000, or imprison- ithin the limits herein Ihe authorities of Ihe { of that part of Beh- as defined in the first !s and Hussia in 1807, ich includes a stretch js easterly (westerly?) In support of this claim, those authorities are alleged lo have interfered with the peaceful and lawful occupalioii of Canadian citizens on the high seas, to have taken possession of their ships, lo have suhjecled their propertv to forfeiture, and to have visited upon lh<>irpersonslhe iiniignityof imprisonment. Such proceedings, if correctly reported, would appear to have been in violation of the admitted principles of internalioiial law. I ie(|uest Ihalyon will, on the receipt of this dispatch, seek an interview with Mr. Hayard, and make him ac(|nainted with Ihe nature of the information with which Her Majesly's (iovernment have been furnished respectinir this matter, and state to him that Ihey do not doubt Ihal, if on imjuiry ii should prove lo be correct, the (Iovernment of the IJuiled Slales will, with Iheir well known sense of justice, at once admit the illegality of the proceedings resort- ed to against the F3ritish vessels and Ihe British subjects above mentioned, and will cause reasonable reparation to be made for Ihe wrongs to which thev have been subjected and for the losses which Ihey have suslained. Should Mr. Bayard desire it, you are authorized lo leave wilh him a copy of this dispalch. 1 am, etc., Iduksi.kigii. Tlie learned Arhilralorswill thus perceive tlic ground which llie IJrilish Ciovernmenl wer(> at first disposed lo lake, —and a copy of this dispalch was evenlually coniinunicaled. no doiihl, and Ihere- fore they did take this ground originally, — liial lliis husiness of pelagic scaling was a peaceful and lawful occupalioii on the high seas, and that heing such it could not he inlerfered wilh, nor could those who wero engaged in it he taken and their properly confiscated hy Ihe action of Ihe American (lovernmenl. The ground was, Ihal Ihis action of Ihe American CovernmenI was taken at a grealr>r distance Ihan Ihree miles from the shon>, out- side of our jurisdiction, and was therefore, unauthorized and un- lawful. The grounds are two : First, thaf Ihe occupation of pela- gic sealing is a peaceful and lawful one; second, Ihal outside, upon Ihe high seas, Ihe (iovernment (»f the I'nited Slales has no anlho- rity to arrest British vessels. These requests from the represenlalive of Ihe dovernmenl of Great Britain upon Mr. Bayard for information were from lime lo time repeated during Ihe delay which occurred, and which was made necessary, hy the great rootoness of the scene o\' Ihe difli- cullies from Ihe cily of Washington; ami on the ilh of April 1887, Ihe following note was addressed to Mr. Bayard, which will he found on page i:>9 of Ihe first volume of the Appemlix to the Ame- rican Case : Sir L. S. Snc/iviUe West lo Mr. liai/ard. WAsnmoTos, April 'i, ISS7. . ' (Received April 4.) Sir : [n view i : ihe ajiproaching fishing season in Behring Sea and the fitting out of vessels for fishing operations in Ihose waters, Her M.ijesly's (io- 2 *■". 18 ORAL ARGUMENT [ I ill venimeiit liave requcsled me to inquire wlitther tiie owners of sucli vessels may rely on bein^ unmolesleJ by liie cruisert of the United Stales when not near land. , , ,. i < Her Majesty's r.overnmenl also desires to know whether the documents referred to in 'your note of the :id of February last connected with the seizure of certain Itrilish vessels beyond the th.ee-niile limit and lef^al proceedinj^s connected therewith have been received. And I have the honor therefore to request you to he f{ood enough to enable me to reply to these inquiries on the part of tier Majesty's (Jovernment with as little delay as possible. I have, etc. L. S. Sackviu-k West. In lliat nolo, as you will poicoivo, Iwo points arc mado; first, thai some instructions should bo given to Tnitod States cruisers, so that British sealers shouhl not he molested in the fortheoining season; and second, an inquiry whether lln; information desired had heon received. On the 12th of April, Mr. Bayard replies to that note as follows : Mr. Bai/ard to Sir L. S. SackvUle West. . Dei'aiitkmunt ok State, Washington, April U, 1887. Sui : I have tiie honor to acknowledge your note of the 4th inslant relative to the fisheries in liehring Sea, and inquiriuj,' whether I he documents referred (0 in my note of February :i, rehiting the cases of seizure in those waters of vessels cliarged with violating tlie laws of he 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 Department on Saturday last, and are now under examination. The remoteness of the scene of the fur-seal lisheries and the special peculiarities of that industry have unavoidably delayed the Treasury ol'licials in framing appropriate regulations and issuing orders to United States vessels to police the Alaskan waters for the protection of the fur seals from indiscri- minate slaughter and consequent speedy exlermination. The laws of the United States in tiiis behalf are contained in the Revised Statutes relating to Alaska, in sections 19;iG-t97t, and have been in force for upwards of seventeen years; and prior to the seizures of last summer but a single infraction is known to have occurred, and that was promptly punished. The question of instructions fo Covcrnment vessels in regard to prevent- ing the indiscriminate killing of fur seals is now being considered, and 1 will inform yon at the earliest day ]iossihle what has been decided, so that Itri- tish ami other vessels visiting the waters in question can govern themselves accordingly. I have, etc. • . T. F. Bayabi). Thai was followed hy a note Bayard, on July 8th : from the Bristih Minister to ■i OF MR. GARTEH. 19 owners of such vessels Jnited Stales when not rliether the documents inected with tlie seizure . and lefjal proceedinj:s the honor tlierefore to to these inquiries on the s possible. \CKViu.K West. ints aro made; first, itod States cruisors, I ill llic forthcoming information desired that note as follows : West. NT OK State, glon, April li, I8S7. f the 4lh inslanl relative • Ihe documents referred izure in those waters of >d Stales regulating tiie s in the district court in tment on Saturday last, islieries and the special ed the Treasury ol'licials . to I liiled Slates vessels e fur seals from indiscri- on. ontained in the Revised d have been in force for' res of last summer hut a nd that was promptly ■Is in regard to prevent- ng considered, and' 1 will een decided, so that Hri- i can govern themselves T. F. Bayabd. ! Bristih Minister to Sin : With reference (o your nole of the 12th April, staling lliat the records of the judicial proceedings in Ihe cases of Ihe Itritisli vessels seized in tin; Hehiing Sea had been received, 1 have the honor to inform you that the Mar(|nis of Salisbury has instructed me to request you to be good enough to furnish me with a copy of Ihe same for the information of Her Majesty's (jovernmenl. Mr. hayard addresses a note on the I Itli of July to Sir Lionel Sackvillc West as follows : Sni : Complying with the request contuined in your note of the 8th instant, conveyed to mo under the instructions of your (iovernment, I have the honor to enclose you two [iriutiMl copies of Ihe Judicial proceedings itt the United States dislrici court for the District of Alaska in the sevi-ral cases of libel against Ihe schooaeis Onward, Carolina and Th'jriUon, 'ioi Ivilliiig fur-seals in Alaskan waters. The furnishing of these rec(n-ds io !he represenlalives of Ihe iJrilish (lovernnienl, eonlaininga full reporl of lh(> |)r'(; of the vessels referred lo, and Hie release of all persons under arrest in connection therewith. On the 4tli of A|)ril, under instructions from me, you imiuired ol .Mr. Hayard, in view of the approaching- fishinj; season in Hehrinji's Sea, whether the owners of nrilish vessels mvM rely when not near laud on heiny unmolested by Hie cruisers of the United Slates, and you af^ain asked when tiio record of Hie judicial proceeding's mif;ht be expected. Mr Bayard informed vou, in reply (lilii April), that Hie i>apers relerred to had readied him and were bein;,' examined; that llu-ie had been unavoidable delav in framing' appropriate re^;ulations and issuing' orders- lo the Imiled Slates vessels lo police the Alaskan waters; that the llevised Slatules relatmj; lo Alaska, sections l'j;;c. and \'r,l, contained the laws of the United Stales m relalion lo Hie matter; and that the reKulalions were bein;; considered, and he would inform you al the earliest day possible what had been decided, so that British and oHier vessels mi^'lit ^-overn themselves accOi^.nj,'iy. In view of the statements made bv Mr. Bayard in his note ot the 3d I'e- bruary to which I have referred above. Her Majesty's Government assumed that pendini,' a conclusion of the discussion between the two Governments on Hie '^'eneial question involved, no further similar seizures of British vessels would be made by order of the United Stales (iovernment. Tiiey learn, however from the contents of Mr. Bayard's note of the i:tth ultimo, inclosed in your dispatch, No. -i't."). of the tlilli ultimo, that such was not the meaning which be intended should be attached to his communication of Uie :3d Fe- bruary and they deeplv rcfjiet lo lind a proof of H'eir misinterpretalion ot the intentions of the United Slates Covernmenl from an announcement recenllv received from Uie commander-in-chief of ller Majesty's naval torces in the i'acilic, thai several more British vessels en^iafjed in seal hunting in Behrin^^'s Sea have been seized when a loni; distance from land by an Ame- rican revenue vessel. .,,.,, • , j Her Majesty's Government have carefully considered the transcript record of the judicial proceedings in the United Stales district court in Hie several cases of the schooners C-//'o/tnr(, (hurard. and Thornton, which were commu- nicated to you in Julv, and were transmitted to me in your dispatch, No. lOti, ol the I2th of that month, and Ibey can not lind in Hiem any juslitication lor the condemnation of those vessels. The libels of informalion allette that they were seized for killing tur seal within the limits of Alaska Territory, and in the waters thereof, in violation of section lOIit) of Hie llevised Statutes of the United Slates; and the United States Naval Commander Abbey certainly aftirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska, but according to his own evidence, Hiey were seized 7:J, lUi, and 70 miles, respectively, soulh-soiithwcsl of St. George's island. „• , i . It is not disputed, therefore, that the seizures in question were enected at OF MR. r.Ai\Ti;:i. 21 rormalion boiiif; ol' Hie seizures, l.'isl, lo express le delay, ami to it Id Hie action I'ls and of llieir d of till- Judicial icli VViisliiujiton, « liicli iiiiylil be licf'ii issued by Hi; proceediiif-'S, I persons under •doi'Mr. Bayard, >a, wliitlier the ■iiiir uiiinoltisled cu tlie record of pers referred lo een unavoidable i-sMo the United ^lalules relalinj; United Stales in considered, and leen decided, so ^.njiiy. )tc of the 3d Fe- ument assumed (lovernnients on 1 Brilisli vessels it. Tiiey learn, ultimo, inclosed not I lie m(-'aninK in of the 3d Fe- iiterpretalion of announcement ty's naval forces seal hunlinj,' in iiid by an .\me- ranscript record t in tiie several li were commu- lispatch, No. lOfi, • justification for r killiiiii,' fur seal reof, in violation and the United he vessels were ;a, but according,' !es, respectively, I were effected at a distance from land far in oxcesa of the limit of maritime jurisdiction, which any nation can claim by international law, and it is hardly necessaiy to add that such limit can not lie (Milarj.'ed by any municipal law. The claim thus set up apjiears to be founded on the exceptional title said to have been conveyed to the United States by Hussia at the time of the cession of Hk- Alaska Territory. Tlie pretention which the Russian Government at one time put forward to cxclusivt; jurisdiction over tin; whole of Helirin;; Sea was, however, never admitted either by this country or the United Stales of America. On the contrary, it was strenuously resisted, as I shall presently show, and the Ame- rican (Government can hardly claim to have received from Russia ri^'hts which Ihey declared lo be inadmissable when asserted by the Russian Government. Nor does it appear from the text of the treaty of IH'iT that Russia either intended or purported to make any such f.'rant, for by .Vrticle I of that instru- ment Russia af;reed to cede to llie United Slates all the territory and dominion then possessed by Russia " on the continent of America and in the adjacent islands " within certain j.'eof.Taphical limits described, and no mention was made of any exclusive rif.'ht over the waters of Rehrin^' Sea. Moreover, whatever ri|L'hts as lefjanb; their respective subjects and citizens may bi' reciprocally conferred on the Russian and American (iovernmenlsby treaty stipulation, the subjects of Her Majesty can not be thereby afl'ected, o.xcept by special arrangement with this country. With regard to the exclusive claims advancetl in times past by Russia, 1 transmit to you documents communicated to Ihe United Stales Congress in 1822, which show the view taken by the American Government of these pretentions. In 1821 the Emneror 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 northwestern coast of America, and the .\leutian, Kurile, and other islands. " The first section of Ihe edict said : Tho pursuit of commerce, Mhaling, and fishing, and of all oUier iudnslry on all islands, ports, and gulfs, including tho wliolc of the northwest coast of America, be- ginning from Behriiig Straits to the ;ilst dogvco of nothern latitude; also from the Aleutian Islands to tin; eastern coast of Siln'ria, as well as along the Knrilc Nlands from Behring Straits to the south cape of tho Island of Urnp, viz, to the 'to^'M' of ncrthern latitude, is exclusively granted to Russiar suljjects. And section 2 stated : It is, therefore, prohibited to all foreign vessels, not only to land on the coast and islands belonging to Russia, as stated above, but also to approach them within less than lOU Italian miles. The transgressor's vessel is subject to confiscation, along with the whole cargo. Lord Salisbury then proceeds : — (1 desire to save reading as far as possible) — to state tliat copies of these regulations were communicated to tlie American Secretary of Stale, at that time Mr. John Quincy Adams, of great repute in his day, and great fame since, and tliat he asked the Russian Governemcnt for an expla- nation of the grounds upon which such provisions were harsed. The Russian Minister in liis reply, dated the 28th of February, after explaining how Russia had acquired her possessions in North Ame- rica, said : n ORAL Allfil MENT 1 <)iifi;lit, ill llio last place, to ie(|Ufst you lo rci.idor, Sir, Dial llie Uussian possossioiis ill the Pacific Ocean exicnd on tiio norlliwaid coast of America from ncliriiif,''s Strait to tlii^ iilsl dp^;ree of north lalitiuh', and on tlie opposite side of Asia and the islands adjacent fioiii the same stiail lo the Hilh tlej^ree. The exteni of sea of which these |)ossessioiis form llie limits comprehends all the condilioiis which are ordinarily allached lo shut seas (" rnccs f'cnnecs"), and the Hnssian (iovernmenl might consequently judge itself aiithoii/ed lo exercise upon this sea the right of sovereignly, and especially that ofenlirely interdicting the entrance of fereigners; hut it preferred only asseiling its essential rights w illioul taking advantage of localities. Tliat is Iho explanation given by the Russian Minister. Lord Salisbury continues : On the ,'!Olh March Mr Adams replied lo the explanations given hy the Uus- sian minister, lie stated that, with respect to the pretension advanced in regard to territory, it must he considered not only with reference to Iho question of territorial rights, hut also to that prohihilion to the vessels of other nations, including those of the Knitod S'ates, lo ajiproach within 100 llalian miles of the coasts. That from the period of the existence of the United States asan independent nalion Ihoir vessels had freely navigated these seus, the right to navigate them heiiig a part of that independence; and with regard to the suggestion that " tlu; Hussian Government might have justified the exercise of sovereignly over the P.''cilic Ocean as a close sea, " because it claims lerriloiy holh on its American and .Vsialic shores, " it may suflice to say that the distance from shore lo shore on this sea, in latitude ."H" north, is not less than '.K)" of longitude or 4000 miles. " .Mr. Adams concluded as follows. Tlie Presiilciil is ipfrsuaded tliiil tlie citizens ol' this Uniiiii will remain unmolested in llii^ i)roscriilion v( llieir lawful commerce, and that no etfoct will be given to an interdiction manifestly incompatible with tlieir rights. The convention between the United Stales of America and Hussia of the 47lli April, 182i, put an end lo any further pretension on the part of Russia lo restrict navigation o- fishing in Behring Sea so far as American citizens were concerned; for by Article 1 it was agreed that in any part of the (Ircal Ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting jiowers shall neither be disturbed nor res- trained, either in navigation or fishing, saving certain restrictions which are not material to the present issue ; and a similar stipulation in Ihe convention between this country and Russia in Ihe following year (l.'ilh .May, iH-llt), pul an end as regarded Rrilish subjects to the pretensions of Russia to w hicli I have referred, and which had been entirely repudiated by Her .Majesty's (Iovern- menl in correspondence v illithe Russian Government in 1821 and 1822, which for your more particular inr.irniation I inclose herein. Her Majesty's Government feel sure that, in view of the considerations which I have set forth in this dispatch, which you will communicate to Mr Riiyard, Ihe Goveinment of the United States will admit that the seizure and condemnation of these British vessels and the imprisonment of their mas- ters and crews weri; not warranted by the circumstances, and that they will be ready to afford reasonable compensation to those who have suffered in conseciuence, and issue immediate instructions to their naval officers which will prevent a recurrence of these regreltable incidents. I am, etc., Sausbury. ■i OF Mil. CAnTF':H lull I lie Hussian liist of America nn I he opposite In; f.'llli tlt'f^ree. oniprelicnds all ni'rs fcrmecs "), r iiiillioii/ed lo thai orcniirely y assfiliiig its lislor. Lord viMi liy tlio Hus- )n advanced in iforence to I he th(> vessels of iproach williiii 'xisleiice of the iiavigalcd these iiice; and with L have Juslitied a, " because it may suflice to ludc ;H" north, IS concluded as main unmolested I !)(• ^'ivoii to an 1 Hussia of the ]iart of Russia lerican citizens rt of the (ireat ipeclive citizens turbed nor res- Lions wliicli are the convention y, IS-ia), put an Lo which 1 have ijesty's (lovprn- and 1822, which : considerations ommunicate to hat the seizure nt of their inas- d that they will ave suffered in officers which BURY. Lord Salisbury thus reileriilod tlio position winch had been takon, that tho United Slates (lovernment had no authority lo enforce its municipal laws tipon any part ol" the s(!as outside of the ordinary three mile limit; and in supjiort of that position he referred lo the action of the American (iovernment in 1822 pro- testing against pretensions on the part of Hussia to exercise what the IJnited States (Iovernment tiien seemed to think were acts of sovereignty over the very seas; and his argument was, that the United Slates (iovernment will hardly jiretend now to exercise jurisdictional rights which, when asserted by Hussia so many years ago, they protested against so vigorously. U will be obser- ved that in this letter of Lord Salisbury, which it is important to consider, he makes no allusion to any supposed ([uestion of property. He makes no allusion to the industry carried on upon the Pribilof Islands, of guarding these seals, and preserving them for the uses of commerce. He makes no allusion to the question whether pelagic sealing is right or wrong in itself; but seems to consider that, whether right or wrong, and whether there is any properly interest or not, the United Slates has no right to capture or con- fiscate a vessel upon the high seas because it is an attempt to en- force her municipal laws there. He puts himself upon the ground — not an unnatural one at all under the circumstances, having been shown the record of an American Tribunal of a libel upon a Hritish vessel based upon an asserted violation of Ameri- can law — that American municipal law which is the sole defence, as he su|)poses, of the taking of the vessels, cannot be enforced upon the high seas, and has no authority there, and he cites in favor of that position the prior action of the American (Iovernment. At this time, information of the facts having reached both Governments, and the British Government having made a demand, and Lord Salisbury having put himself upon this ground, the ques- tion arose with the American Government what it was best to do. What was the situation? Here was its property, its industry, as it supposed, carried on for a century in the face of the whole world, and hitherto uimiolestod by the world — an industry beneficial to itself, and equally beneficial lo the rest of mankind. That industry and the herd of seals upon which it rested were threatened with certain destruction, as it was viewed by the Ameri- can Government, by this practice of pelagic sealing. Efforts had been made to arrest it by an enforcement of the American sta- tute, which effort had been exerted against both American and British vessels. They were made, so far as Great Britain was con- cerned, with protest, on the ground that it was an exercise of au- thority which the United States did not have over the high seas. What was the United States Government to do under those cir- r 2^ (iitAi. Aiuii mi:nt cuinsliiiicps? Tliorc was lliis coinpli'lc and pcrrcci |)rnporlyin llic seals. riicrc was Iliis dcslnu'livc cliaraclcr of pelagic scaling, a maiiilcsl, inilispiilai)l(> wnni}.;, as il appcarcil to llic (iovcniiiiciil ol' the I iiilod Slates, and a wroii};, loo deslrnclive of one of ils uw II inlei-( ..Is, and llieiclore (here ninst lie an nndonhled rijilil somewhere and somehow to arrest th.t I'lirllier pro^M'ess of thai wron^j. The steps taken to do il InnI excited Ihis prolest upon the part of (ireat ISrilain, and nndonhtedly did involve the exereise (d' an exceptional aiithorilyon the liij;|i seas. The exigency inif^hl have been met in various ways. .Mr. Hayard mif,^ht have asserted the mithority led lo. Such a po' ition once taken by the I'nited Sta- tes upon that (|ueslion could nol have boon receded from. A posi- tion taken upon the other side, by (ireal Hritain, coidd nol per- haps have been receded from; and the result of thai, as the cause of Ihe controversy and the sources of irritation were present at Jiaiul al all times, would have been that Ihe acts would be contin- ually repeated, and would inevitably lead to hostilities. Another course was to endeavoi' lo settle the controvcisy wilhoul a i-esorl lo any discussion of the respective riglils of IhotJovernmenlswbich were immediately concerned, and lo settle i, upon the assumption thai whatever the rights were, u|)on the one side or the other, Ibo elfecl of Ibis practice of pelagic sealing lo which the Tnited Sla- tes objected was so manifestly injurious, and the practice so mani- festly wrong, that all (lovernmenls would probably assent to its repression, and thus the diflicully would bo avoided. Mr. Hayard did not believe, could not bcliove, that the praf'J'ro of pelagic sealing was a right one. He did nol believe, be could not believe, thai any civili/ed nation would think il lo be right. That was bis view; but the course wbicii statesmen take is, in most instances perliaps, a good deal governed by their particular |)ersonal character. Mr. Hayard, I need not say, was a statesman of the most enlightened character and the most humane views. No man hud a more perfect abhorrence for war than be. No man had a lower estimate of force as a mode of adjusting interna- tional conilicts; and in respect to a question whicb, as ho viewed it, there ought lo be no diirerence among enlightened men, there would be no excuse on the part of the (iovernment of the Tnited Stales in so dealing with il as to make a resort to hostil- ities even probable. His course, therefore, at first was a concil- iatory one. He determined to address the Ciovernments nol only of (ireal Britain, but the several Governments of the great mari- linie nations, put the question before them, and invite them to OF MU. CAHTKII. 3a porly in the ;ic scaliii},', iovcniiiiciil mI' (inc of iiii(l<>iit)l(<(l litis prolost involve llic ways. Mr. '(I Slnlos to it Hint an- > what that Inilcil Sta- n. A posi- 1(1 not per- s the fuiise |)rosonf at J be conlin- 1. AnofluM' out a I'dsorl iKMils which assumpiiitn olhor, the rnitod Sla- ce so mani- sscnt to its the pr!i''*''".e e, ho could to bo right, take is, in r particular ii statesman iiano views. 5. No man ng interna- lich, as he enlightened 'ernment of 3rt to hostil- as a concil- ifs not only great mari- ite them to consider the matter and come to an agreement in reference to this business of [lelagic sealing — such an agr(>enient as would prevent the exl(>rminaliiin'of the seals — without any resort to irritating discussions upon (piestions of right. That position of Mr. Hayard is represented by tlu^ first note of a leliberate character respecting this matter which he wrote. It is found on |)ag(! KiSofthe Nidunu" to which I have been referring. The copy here is a note from him to Mr. Vignatid;but copies of it w(M'e sent to the American Ministers in tiermany, (lr(>at Mrilain. Hussia, Swer !(mi and Norway and .Japan. Sir Charles Russell. I think a copy of this was not sent to (ireat Krilain. Mr. Carter. I think it was. Sir Charles Russell. I Ihink ufit. Mr. Carter. That is my impression. Mr. Foster. Yes. Mr. Carter. I will read this note : No 2:10.) Dkpartmknt of Statk. Washhifjtoii, Aiif/itsl 10, /««;. Sin : Hfceiil (icriuTfii(H\s luivo drawn tlio attention of tliis Dfipartrnpnt to the necessity of taking steps fur tlic betler i>rotoclion of the fur-seul tlslieries in Belniii^f Sea. Witiiout raising any question as to tiie exceptional measures whicii the peculiar cliaracler of I lie luoperly in question might justify tliis (iovernment in tniving, and without reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable — and 1 am instructed by the President so to inform you — to attain the desired ends by international cooperation. It is well known thai the unregulated and indiscriminate killing of seals in many parts of the world has driveu them from [dace to place, and, by bieak- ing up their habitual resorts, has greatly reduced their number. Under these circumslauces, and in view of the common interest of all nations in preventing the indiscriminate destruction and consequent (exter- mination of an animal which contributes so iin]tortantly 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 with the Government of the United States as will (trevent the citizens of either country from killing seal in Behring Sea at such limes and jilaces, and by such methods as at present are jmrsued, and which threaten the speedy extermination of those animals and consequent serious loss lo mankind. The ministers of the United Stales to Germany, Sweden and Norway, Uus- bia, Japan, and Great Britain have been each similarly addressed on the sub- ject referred to in Ibis instruction. I am, etc., T. F. Bayaki). 1. Identic instructions wore s(!nt to the United Stales ministers to Germany. Great Britain, Japan, Russia and Sweden and Norway. id ORAL ARf.rMENT >,v. :■ . . 'v Thul was tlio allilu(l(> first liikcn by Mr. Haynrd lownnis oilier nalions. He rcl'crs, in llic lirsl place, lo llie peculiar cliaracler of Iho |»r()|terly in (|iiesfioii ; and in rel'errinjj; to the [leciiliar cliaracler of the pro|)erty in qnestion lie means thai it is an animal thai passes part of ils life on the land and part in the sea. lie refers to the exceptional marine jurisdiction which the riiited States ini^hl claim lo exeicise for the pnrjK)S(> of protecting a piece of properly so poctiliar in its character. He expresses a desire lo avoid discus- sion of those subjects, and he makes bis appeal generally lo those who are in charge of the interests of mankind to come to some inlernalional agreenient by which an animal so important in its benelits as the seal is may bo ellcctually prt'seiVed. Thai was Ibe altitude taken by Mr. Mayard, characteristic of the man. concilia- tory in his methods, and. as it seems lo me, the one which an enli- ghtened statesman should havi^ taken under the circumstances. The nalions other than (Ireat Hrilairi who were thus add'-o*"" ^ answered this note, I believe I am correct in saying, it' .uer a formal way; that they were nol specially intereste'' " ..e subject- matter of the controversy, but would take the suggestions into serious consideration and await such discussion as might be had. So far as (iicat Britain is concei-ned, I think I may say that the suggestions thus made by Mr. Hayard were communicated to Lord Salisbury by the American representative in Kngland at that time, my associate Mr. Phelps, and were at once accepted by him in llu^ spirit in which they were olfereil. Senator Morgan. Mr. Carter, if you will allow me, I think that the di|)lomalic correspondence shows that Japan and Russia coincided with the |)roposilion of the United Stales, and Norway and Sweden expressed their concurrence in the ideas presented in the note of Mr. Hayard, but said that that (lovernmont was not at present interested in the (|ueslion, and suggested that the conven- tion should be so framed as to admit other powers to join subse- quently, if they saw proper. Mr. Carter. I sliould have observed that Japan and Russia made a favorable response to these suggestions; but other nalions not particularly interested answered, I think, in the way I sug- gested. But what 1 had particularly io mind to impress upon tlie Tri- bunal was what I think will piov. tit be true; namely, that when these conciliatory suggestions viero made lo Lord Salisbury they were accepted by him in the spir.t in which they were tendered. The lirsl note which I shall read upon that point is that of Mr. Phelps to Mr. Bayard, which was dated in London, 12th November 1887; the letter of Mr. Bayard having been dated i9lh of August. Mr. Phelps says : Ob' MU. (j Aim; 11. IT ids ollior (iiiictcr of cliiiriu'tor iiiial lliiil ' icfcrs li» It's miglil. |ii()|R'ily i had. y lliat the ihI to Lord that time, liin in lli*^ (', I think ind Russia (1 Norway pscnted in vas not at 10 convcn- oin subse- nd Russia ler nations i^ay I sug- r to olil.iJn liig iittfiilion to tlif siilijcct iinlii ycsli>nlro|iosi>(l on tiic |).'ii'l of llio (■ovi'rnniiMit ol till' I'nitiMl Slalt's th.il Ity n,.,tnal aviconiciil of ltii>lv\o liovcrn- nicnts a coilr uf i'(!^iilations slmiild lie ailo|>tt'(l for tlic pii'siMvation of lint 8(>als ill llrliring Sua from ilcstriiction at inipro|it'r times and liy iiii|iru|ior nitMins liy till! tiliz-oiis of eitlK-r conntry; sncli aKiccmenl lo \w entirely iires- pt'ctivc ot any tiiieslionH of ronfliclin;; jniisilirlion in those waters. His lordsiiiji pi'oni|illy aciiniesced in this |ii'(i|iosal on the |i,iii of (ireat liri- tain and .siif.';:esl(;d Ihat I sliould (ditain from my (iovernim in and submit lo him a sketch of a system of re;;nlatiuns which would be ad<'HUiiio for the pui- pose. I have tiierefore to request that I may he furnished as early as possible with a draft (d'sneli a eodi< as in your judgment should he adopted. I would sug;.'est also that copies of it hi furnished at the same time to I In; ministers of the I idled Slates in (iermany, Sweden and ^Norway, Itussia, France, and Japan, in order that it may he under consideration hy the (Jovern- menls of those lountries. A mutual a;.'reement between all the fjovern- inents interested may thus be reached at an (;arl.\ day. I liave, etc., E. .1. I'lIF.LPS. I assume from this that Mr. Phelps eommunicalod the instruc- . tions ho iiuii rocoivod from Mr. Hayard, and thai in tiiiil way the note of Mr. Hayard was eommunicalod to liie Government of Great Britain. Sir Charles Russell. Tliat is correct, substantially. Mr. Carter. And tlie learned arbitrators will perceive from this that in carrying out the instructions which he had received from Mr. Dayard, Mr. Phelps proposed to Lord Salisbury the esta- blishment of a code of regulations for the reslricticm of pelagic sealing by citizens of either country during certain times. The idea was a code of regulations establishing what was called a " close time ";and to that suggestion, wliicli was designed lo carry out Mr. Hayard's object of preserving the seals by interna- tional agreement, a prompt assent was given by Lord Salisbury. What was awaited, therefore, was the framing by the United States of a code of regulations sufficient to carry out the object in view. Mr. Phelps upon receiving that communication, presu- mably at least, — perhaps his letter may be somewhere printed but 1 do not know that it is — informed Mr. Hayard of this fact, and Mr. Bayard addresses this communication to him. This is from Mr. Bayard to Mr. Phelps and is foimd on jiage ill}. The President. Mr. (barter, 1 would suggest that before wer begin this new question we might rest a while. 28 On.VF, ARfilMENT Tlie Tribunal llicroupon look a recess for a sliorl lime. After ro-assombling. ' The President, said : Mr. (lartoi-, will yon proceed, Mr. Carter. -Mr. I'residont, when the Tribunal rose for its recess, I was calling the attention of the learned Arbitrators to the course of the correspondence which arose in reference to the seizures of liritish vessels. 1 had slated the conciliatory action which Mr. IJayard, the American Secretary of Slate had chosen to lake, the sending of communications ]>y him to the American Ministers to the various maritime nations, and the response whicli had been received to the communication thus made from Lord Salibury, the British Minister of F(U'ei^n .Vlfairs. I had read, as showing that response, the note of Mr. Phelps to Mr. Bayard of November 12, 1887. Mr. Bayard having received that communication, was evidently gratified at the prospect of an amicable soluliou of the difficulty, and he addresses this note to Mr. Phelps on the "ll'Ah of November, i887: No 733. Departmknt op St.vth, Washington, November ?.), ISST. Sir : Your No, 018, of llie 12tii iiislanf, sliitiiii; llie rosuU of your intorviews with Lord Salisbury on the subject, of th(> seal tisherios in Beluin;,' Sea, is received. Tiio favorable response lo our su^'fiestion of mutually a^'reeing to a code (if ref;ulalions is very satisfactory, and the subject will have iuiuiediate altention. I am, etc., T. F. Bayahd. You will remember that Mr. Phelps requests, within two weeks after reaching the rookeries. Between the time of the birth of the ])ups and of the emii-'ration of the seals from the islands in the autumn the females are occupied in suckling their young; and by far the largest part of the seals found at a distance from the islands in Behr'ing Sea during the summer and early autumn are feniiiles in search of food, which is made doubly necessary Jo enable them to suckle their young as well as to support a condition of renewed pregnancy, which begins in a week or a little more after their delivery. The male seals, or bulls, as they are commonly called, require little food while on the islands, whei'^ they remain guarding' their harems, watching the rookeries, and sustaining existence on the large amount of blubber which they have secreted beneath their skins and which is gradually absorbed during the five or six succeeding months. Moreover, it is impossible to distinj-'uish Hk; male from the female seals m the water, or pregnant females from those that are not so. When the animals are killed in the water with firearms many sink at once and are never reco- vered, and some authorities state that not more than one out of three of those so slaughtered is ever secured. This may, however, be an overestimate of the number lost. It is thus apparent that to permit the destnulion of the seals by the use of firearms, nets, or other mischievous means ;ii BehriuK ;:ea would result in the speedy extermination of the race. There appears to be no difference of opinion on t!;is subject among experts. And the fact ii so clearly and for- cibly stated in the loort of the inspector of fisheries for Mriiish Columbia of the 31st of December,' 1880, Ihat 1 will (luole therefrom the iVl )wing pertinent passage : ' ^ ; . ] _ , There w^rc killed this vfi;ir, so fiir, from 40 OD to ilOOOO l'ur-s"als, which have been taken hy sr.hooners from San Francisco and Victoria. The greater nunili.n- were trilled in Behring Sea, and were ncarlv all cow.s or female sesls. This enormous eatch, with the increase which will take place when the vessels litting up every year are ready, \vili I am afraid, soon deplclo our fur-seal fishery, and it is a great pity ihat such a valual)le industry could not in some way bo protected. (Report of Thomas Mowat, inspector of fisheries for British Columbia ; Sessional Tapers, Vol. V>, No 10, p. 268; Ottawa, 1887.) u ifi M fej M Oll.VL AlUiUME.NT I also sent a nolo lo the Russian ambassador, and, an interview with him is arr:inf.'fd I'or the 'Jlst inslaiil. The wiiuli! mailer «iil receive my immediate and lhoronj;ii allenlioii and I hope for a favorable resull. Meanwiiilo 1 would ask yourconsideialion of the manne.- in wiiich you would propose lo carry oul !lie regulations of the (isiie- ries tliat may l)o agreed ii|i(in by I he counlries inlerested, Would not legi.-,- lalion be necessary; and, if so, is liiere any hope of oblaining it on I lie part of C.ongress *? 1 have, elc., * E. J. PUKLPS. Subsoqiienlly, on llio iJ.'JIli of Fohruarv, ho again addresses Mr. Bayard, and tliis is iiis nolo : Mr. /'/iclps to Mr. liaijard. [Kxu-act.' N " 1392.] Lkdation or tuk Umtkd States, London, Fcliruarii i."), I H8H. (Ueccivod March 6.) Sin : neferrinj: inslruclions, numijered 78i, of Feliriiary 7, 1888, in referrence to liie ^. eal lisheries, and lo my reply therelo, numlieied 1)90, of February 18, I : Ihe honor lo inform you that 1 have since had inter- views on tiie subject willi Lord Salisbury and with M. do Slaal, Ihe llussian ambassador. Lord Salisi)ury assenis (o your proposition to esiablisli, by niulual arrnn- gemenl between the govtnnmenis interested, a close timi! for fur seals, l>etween April l.'i and November 1, and between 160° of longitude west and 170" of longitude east, in Ihe IJehring Sea. He will also join Ihe United Slates (iovernment in any pi'eventive measures il may be Ihoughl best lo adojit, liy orders issued to Ihe naval vessels in that region of Ihe respeclive '_,>vernments. I have this morning letegraphedyou for additional printed cojiies ofinstriic- lions 782 for the use of Her Majesly's (lovcrnmenl. The Hussiau ambassador concurs, so far as his personal opinion is concer- ned, in Ihe jn'opriety of Ihe pro|iosed measuies for Ihe protection of the seals, and has promised lo communicale al once with bis Government in regard to it. I have furnished him with copies of instructions 782 for the use of his Government. . . 1 have, etc., E. .1. PuiiLl'S. The learned Arbilralors will perceive from Mr. Pholps' nolo lliallhe proposed close iimo extending over ihe area helween 170 oast longitnde and IGO westlongitiido, and beginning at tlie oOlh pa- rallel of latitude, and including everylhing north, was at once assented to, and that pelagic sealing within that area was to be proliibited between April lolh and November Isl. Of course, I do not understand from this note that Mr. IMielps intimated that the agreement was absolutely tinal, so that it might be put in the form of a treaty or convention : but only that the pro- position of .Mr. Bayard containing that measure of restriction was at once assented to by Lord Salisbury williout objection, altltough ,^ OF MR. CARTER. at iew with him llenlioii and [ nialion of Ihc s of Iho (isiie- uld not iotri.-i- 011 Ihe part of LPS. '/•■■■ \ ail drosses Sta'its, lhI Marcli 6.) iry', 1888, in 'to, niiinheied iico had iiitor- , Iho Russian miliKil airnn- Ibr fur seals, ude west and tive measuies cssels in that les ofiiistruc- ioii is concor- II of liio snals, t in regard to he use of his LI'S. helps' iiolc lolwoon 170 he oOlli pa- •as at once was lo be Mr. Phelps lal it mij^ht hat the pro- riction was 1, although further communicritions might be needful before the measure was put in the shape of a treaty; nor do I mean to intimate that Mr. Phelps states that the agreement was an absolute on(>, preclu- ding any withdra\val from it. Mr. Bayard again addresses Mr. Phelps on the !2nd of March, ■1888, and in this communication he acknowledges the receipt, not of the last letter that 1 read, but of the one prior to that, of Feb- ruary 18, 1888 : Mr. Bayard lo Mr. Phelps. N» 810.] Dei'autment of Statu, Wnshiiifiton, March i, ISflS. Sir : I have loacisultod in this; that the first proposal to Great Britain of concurrent regulations was acceded to hy Lord Salishury, and a draft of proposed regulations was requested hy Mr. TMielps from Mr Bayard, in order that he might more distinctly state the terms of theVroposal to Lord Salisbury. Having ohiained a draft ot the proposed regulations, which provided for a close season over an area which 1 have already described, that was submitted to Lord Salishury and met with his prompt assent. That, it will be perceived, made a " close period " i)etween April 15, and Novcm- hpi' \ st It was shortly after this, and if 1 am correct in my recollec- tion, on or about the Jilh of April, 1888, that Mr. Phelps left Lon- don and went to the United States for a while, and the alTairs nf the mission in London were left in charge of Mr. White. There are some letters from Mr. White to Mr. Bayard which show the further progress of the negotiations. Mr. White, on the 7lh of Aprd,1888, addresses Mr. Bayard. This isatelegram. Mr White slated that on the following Thursday he was to meet Lord Sahs- bury and M. de Staal, etc : Mr. White to Mr. Bayard. '.'■•. ,', [Telegram] Legation of the United States, London, April 7, 1888. (Received April 7.) Mr White stated that on the following Thursday he was to meet Lord Sa- lisbury and M. de Staal to discuss the question of the prelection of the seals. On April 1 he had had an interview on the subject with M. de Staal, irom whom he learned that the Russian (iovernment wished to include in the proposed arrangement that part of Behring Sea in which the Commander fsTands arHiluated, and also the sea of Okhotsk. Mr. White supposed that the United States would not object to this. On the same day he addresses this letter to Mr. Bayard : Mr. White to Mr. Bayard. No. 720.] Lboation op the United States, London, April 7, tS88. (Receiyed April 17.) S,n • Referrin" to your instructions numbered 782 of February 7 and 810 ot March 2. reSe" ting the protection of seals in Behring Sea. I have the honor a ■ I osed rpgula- llie alleged at the Hague es, a copy of ccrraspon- •eat Britain l)ury, and a helps from ,0 the terms [ a draft of season over ibmitted to ;, it will be ind Novcm- ny recoUec- ps left Lon- le affairs f lite. Thoie ;h show the 1 the 7lh of Mr. White ; Lord Salis- Statks, cd April 1.) meet Lord Sa- il of the seals, de Slaal, from include in the le Commander supposed that .yard : BD States, TDd April n.) ary 7 and 810 ot have the honor OF MR. CARTEH. ^^ to aciiiiaint you that I received a private note from the Marquis of Salisbury this morning stating that at the request of the Russian emiiassador he iiad ap|)ointod a meeting at the foreign oflice next Wednesday, Htli instant, " to discuss the iiuestion of a close time for the seal rtshery in Behring Sea, " and expressing a hope that 1 would make it convenient to be present, and I have replied that I shall be happy to allend. Subsequently 1 saw M. de Staal, the Russian embassador, at his re(|uest. He referred to the interviews which Mr. I'heips had had with him, of which I was, (if course, cognizant, and stated that his full instructions on I he sub- ject would not reach London until to-night or to morrow, and that he was "about to leave town until next Wednesday, but meanwhile he could say that his (jovernnient would like to have the regulations which might be agreed upon for Rehring Seaexlented to that portion of the latter in which the Com- mander Islands are situated, and also to the Sea of Okhotsk (in which Robben Island is situated). As both these places are outside the limit laid down in your instruction numbered "82 (ITO" of longitude east fiom (ireenwich), I have thought it best to send you the telegram, of which I inclose a copy herewith. I am, etc. Henry White. Then on the 20tli of April, 1888, Mr. While again writes Mr. Bayard : Mr. W hile to Mr. Raijurd. No. 125. Legation ok thr United States, London, April iO, 1888. (Received April 30. Sin : Referring to your instructions Nos. 685, 782, and 810, to Mr. Phelps's dispatches Nos. 618 and 690, and to subsequent correspondence, 1 have the honor to acquaint you that I called at the foreign office on the 16th instant for the purpose of discussing with the Marquis of Salisbury and M. de Slaal, the Russian embassador, the details of the proposed conventional arran- gement for the protection of seals in Bering Sea. M. de Staal expressed a desire, on behalf of his Government, to include in the area to be protected by the convention the Sea of Okhotsk, or at least that portion of it in which Robben Island is situated, there being, he said, in that region large numbers of seals, whose destruction is threatened in the same way as those in Behring Sea. He also urged that measures be taken by the insertion of a clause in the proposed convention or otherwise, for prohibiting the importation, by mer- chant vessels, into the seal-protected area, for sale therein, of alcoholic drinks, firearms, gunpowder, and dynamite. Lord Salisbury expressed no opinion with regard to the latter proposal, but, with a view to meeting the Russian Government's wishes respecting the waters surrounding Roblien Island, he suggi^sted that, besides the whole of Behring Sea, those portions of the Sea of Okhotsk and of the Pacific Ocean north of north latitude 47" should be included in the proposed arrangement. This suggestion of Lord Salisbury's, therefore, carried down farther south the protected area. Mr. Phelps. The suggestion of M. de Staal, you mean. Mr. Carter. No, of Lord Salisbury. Lord Salisbury's sug- i' m i» On.M, AUG L' MEN T goslion carried the pioloolt>(l area fiirthor south from tlio oOlh parallel of latitude down as far as the point upon which my pointer rests (indicating on map), and to include the whole of thai part of the Pacific Ocean, so as to emhrace not only the Com- mander Islands, hut also ^(d.hen Island in the Sea of Okolsk. His L.)rdship (that is Lord Salishury) intimated further that the period preposed by the Inited States for a close time from April loth lo November tst might interfere with the trade longer than absolutely necessary for the protection of the seals, etc. The learned Arbitrators will perceive that at this point the coni- municaling diplomats were so far agreed upon the subject that it was conceived by Lord Salisbury to be in a condition for the pre- paration of a draft convention. Afterwards, oil the first of May, Mr. Bayard addressesMr. \\ lute : anc it is in answer to the last note of Mr. White, which 1 have just read : Mr. Itnynrd to Mr. While. No. 864.1 Dkpautmf.nt OF Statk. Washinr/ton, Ma;/ I, ISS8. Sm • Your dispatch No. 72;i of the 20lh ultimo stating the result of your interview willi Lord Salislmrv and the Russian embassador relative to the protection of seals in Behrinfi S.m. and requeslinK further instructions as to their proposals, has been received. , u- . ,„ As vou have already been instructed, the Department does not object to the inclusion of the sea ofOkliol.sk, or so much of it as may be necessary, in the arrangement for the proleclion of the seals. Nor is it thought absolutely necessary' lo insist on the e.vtension of the cKse season till the 1st of November. Onlv such a period is desired as may be i erpiisite for the end in view. Hut in order that success may be assured in the efforts of the various fiovernments inl.resled in the protection of the seals, it seems advisable to take the loth of ( •lober instead of the Isl as the date of the close season, although, as 1 am now advised, the 1st of November would be safer. Mr Bayard now suggests that it be made the 15th of October, splitiing the difference, although he says the first of November would be safer. . r .i Mr ^Yhite, in his next note to Mr. Bayard suggests a further stage which the matter had then reached. On the 20th of June, 1888, he thus writes : Mr. White to Mr. Bayard. Legation op tup. United Statf-S, London, June, SO, 1888. (Received June 30.) Sm • I have the honor lo inform you that I availed myself of an early opportu.iiiy to acquaint the Marquis of Salisbury and the Russian ani»iassa- dor of the receipt of your instructions numbered 864, of May 3, and shortly No. :86.1 OF MR. CAIITER. 37 n tlio ?»Olh whicli my whole of y the Com- kolsk. iirther that time Irom ado loiij^er Is, etc. nt the com- )ject that it or the pre- Mr. While: 1 have just ltk. ay I, I8S8. result of your »lative to the ructions as to not object to necessary, in i;ht absolutely L of November. I in view. Rut ) fiovernments talic the loth lough, as I am I of October, if November sts a further 0th of June, I) States, ved June 30.) elf of an early ssian ambassa- 3, and shortly afterwards (May 10) his excellency and I called together at the foreign offlco for the purpose of discussing with his lordship the terms of the proposed con- vention for the protection of seals in Rehring Sea. Unfortunately Lord Salis- bury had Just received a communication from the Canadian (iovernnient sta- ting that a memorandum on the subject would shortly be forwarded to London, and expressing a hope that pending the arrival of that document no further steps would be taken in the matter by Her Majesty's (iovernnient. Lnder these circumstances Lord Salisbury fell bound to await the Canadian memo- randum before proceeding to draft the convention. I have inquired several limes whether this connuunicntion from Canada had been received, but it has not yet come to hand. I was informed to-day by Lord Salisbury that an urgent telegram had been sent to Canada a week ago with respect to the delay in its expedition, and that a reply had been received by the secretary of state for the colonies stating tliat the matter would be taken up iumedialely. 1 liope, therefore, that shortly after Mr. Phelps's return this (iovernmenl will be in a condition to agree upon the terms of the |)roposed convention. I have the honor to inclose for your information the copy of a question asked by Mr. Courley and answered by Sir James Fergusson in behalf of the Rrilish Government with respect to the seal fishing in Rehring Sea. I have, etc., Henry White. (For inclosurc see Senate Ex. Doc. No. lOti, Fiftieth Congress, second session, p. 103.) At this point an obstacle was for the first lime interposed in the progress of the negotiations which otherwise wouhJ in all probabi- lity have resulted in a final agreement between the two countries for the preservation of the seals by establishing a close season over the area mentioned, from the first of April to the liJlh of October. Whether that protection would have been adequate is another question which I do not slop now to discuss ; but that the conven- tion would e,\oepl for the obstacle mentioned, have been concluded substantially, securing those terms, it seems to me there can be no reasonab e doubt. The obstacle to it arose from the protest on the part of Canada. Lord Salisbury had — very properly, undou- btedly, as the Canadian people were more interested in the prose- cution of pelagic sealinp than others — sent some communication to the colonial Government in reference to the matter, and had received in response a statement so far as we can gather from this letter of Mr. White, simply objecting to the fmal conclusion of any such proposed arrangement. I think it may be worth, while in noting this response of Canada, to take a glance at the terms in which Lord Salisbury made the communication to the Canadian Government, which will be found in the Appendix, Vol. 3 of the British Case, p. 196 : M 38 OIIAK AHGUMENT I- 't ^# ■ 'flic Marquis oj SaUshitri/ In Sir R. Moricr. jj„j21] ' FoiiRios OnicK, April 1 6, funs. Sill : TlioHnssinn Ambassador nndllicllnilpd Slalos'Cli!irKt''iI'Arrair(>s called upon me Ihis al'teruoon lo discuss Hit- i|ii('slioii of llic seal (Islicrics in lU'li- linn's Sen, wliicli had been bionnbl inio |)romincnre by Ibo recent action of llie United Slates. Tilt; Lnilcd Slates' fiovernment liad expressed a desire thai some a^jree- mcnt siioubl be arrived at l)elwecu liic Miree novernments for the purpose of piiiliibilinn tin- slauf^liler of llie seals dnriiiK llie lime of i)reedinn ; and al my request, M. do Staal bad obtained inslrnctious from bis Government on that (juestion. At this preliminary discussion it was decided provisionally, in order to furnish a basis lor neKotialion, and wilhovit dennilivelypledf.'inK onr (iovern- ments, that the space lo be covered by the jiroposed Convention should be liie sea between America and Russia iiorlli of the 47th decree of latitude; that the close time should extend from the l.'ith April to the 1st No\ember; that during' that time the slaufihter of all seals should be forbidden ; and vessels eii;;af.Mnl in it should be liable lo seizure by the cruizers of any of the three powers, and should be taken to the port of their own nationality for condem- nation; that the traflic in arms, alcohol, and powder should be prohibited in all the islands of those seas; and that, as soon as the three Powers had con- cluded a Convention, they should Join in submiltiuf,' it for the assent of the other Maritime Powers of the northern seas. The United States' Char^je d'AII'aires was exceedinjily earnest in pressinji on us the imi>or!ance of dispatch on account of the inconceivable slauf,'hler that had been and was still f;oinf^ on in these seas, lie slated that, in addition to the vast quantity brought to market, it was a common practice for those eiif;a- ged in the trade' lo shoot all seals they might meet in the open sea, and that of these a great number sank, so that their skins could not be recovered. I am, etc., Salisbury. The learned Arbitrators will now see the manner in which the negotiations pending between the two Governments was notiliod to the (knadian Government. Sir Charles Russell. That was to Sir Robert Morier. That was to Russia, not to Canada. The President. Sir Robert Morier was in St. Petersburg. Mr. Foster. A copy of the same note was sent to Sir Lionel Sackville West. Mr. Carter. What Sir Charles Russell says may be true ; but a copy of the same note was sent to Sir Lionel Sackville West at Washington. Sir Charles Russell. Yes; it was sent to Washington, not to Canada. The President. That is not a communication made to Canada. You spoke of a communication to the Canadian Government. Sir Lionel Sackwille West was in W^ashington. Mr. Carter. Yes; he was iu Washington; ijut the evidence OF MH. CAIITEH. 39 txss. ifTiiircs ciiUed i-rics ill l?i'li» ■fill uctioM of some n^'ree- le purpose of ii ; ami ill my ineul oil lliat ', ill order to ,' our (iovorn- 011 slioiilil be laUluilc; lliiil. )\einl)i'r; tliat ; and vessels f of till! three y for coiidein- proliiliiled in ivers liad con- assenl of the in pressinfi on slaufjhlor tliat in addition to or lliose eiif.'a- seat and that recovered. URY. n which the was nolilicd oner. That tersburg. o Sir Lionel he true ; hut k'ille West at hington, not le to Canada. Government. Lhe evidence Ihal Iho communication was sent to Canada is not derived from this note olSalishury lo Morier, and which was also sent to hir l.ioiK'l SackviMe West. I am in error in staling, il I did slate, that that was the form in which Canada was apiirised oi the stat'> of negotiations; hut Ihal at liiis lime Canada was so apprised is slated in the communications wliich I have read. Mr Justice Harlan. You will find on page 199 of liie Ikil- ish Case, Appendix, Vol. Ill, Hie letter IVom the Colonial Olfice to lhe Foreign Oftice, in which Lord Knutsford acknowledges the receipt of the letter of the 20th, transmitting a copy of a dispatch addressed to Her Majesty's Amhassador at St. Petershurg. The President. ThiU is lhe same dispatch that was sent to the Canadian (lovernment. Mr. Justice Harlan. The answer o{ the Canadian (.overn- ment is on page 212 of that volume. , ., * Mr Carter. On page 199 of the third volume ot the Appen- dix to the British Case, is Inund the following communication from the British Colonial Office to the Foreign Office : Colonial Of/ice to Foreign Of/ice. N» 128] DowNiNti Strekt, April 2i», 1888. ^Received April 26). SiH, I am directed bv Lord Knutsford to acknowledge the receipt of yonr letter of the 20tli instant, tiaiisu.ittin« a copy of a dispatch addressed o Her Majesty's Ambassador at St. Petersburg respecting the proposed establishment of a close time for seals in Beliring's Sea. And that dispatch is the same as the one from the Marquis of Salisbury to Sir Robert Morier, so that it did get from the boreign Office of the British Government to the Colonial Otficc and "le receipt of it is thus acknowledged. The dispatch continues : In reply, I am lo inclose, for the information of the Marquis of Salisbury a copy of the extender of a telegram which was sent to the Governor-Genera of Canada, on bis Lordship's suggestion, inquiring whether the Dominion Government were aware of any objection to the proposed arrangement I am also to inclose a copy of a dispatch from Lord Lansdowne in the two concluding paragraphs of which he points out that the probable cHoc o the proposed close time on the operations of the Canadian sealers would bo to exclude them completely from the rights which they have until lately enjoyed without question or molestation. . , o, . . „ i^ In these circumstances, it is probable that the United SJales' proposo^ may not be accepted by Canada without reserve, and Lord Knutsford would suggest that, pending the receipt of the observations of the Don ;; n Govern- ment in response lo the invitation contained in bis dispatch c > .th March, referred toby Lord Lansdowne, no final action should be taken in the matter. lam, etc., ^ „, .^ Robert G. W. Herbert. m OIIAF, ARGUMENT Lord Knutsfovd to the Marquif of Lnmdotvnr. / Inclosure 1 in N« 128. My Lord, Downing Stiiket, April HI, iHflH. I luivp llio honour to ucqiiaini you that I have this day lolPKiapheil to you, with rcl'tMPiice to your dispatch of tiie ',»tli instant, lliat nPK'>li"lions are jiro- ceedinf,' hi-twecn Uussia, Iht' United Slali-s, and (ireat Hrilain with regard to thoestahlishnient of a close time, during,' wiiirii it would hi- unhiwfid lo ixill seals at sea, in any manner, In the north of Ihe VTtii parallel of latitude lio- tween (he coasts of Uussiaand America, and inquired whether yourGovernment was awan; of any ohjeclion lo the proposed arraiij,'emenl. I added Ihal, of course, as re^aids Canadian waters, Canadian le(iis are pro- lli regard to nwf'iil lu kill latitude he- Go vera men t I le|{islalioii in. :iations — jIi referred ^c read in my incon- owno who ( 9, ISSii. e honour to le Attorney- liini that my li, had been Is, and that e of the inti- ■esisting the ceived from i during the iiMr Bayard, lie despatch in issued by ehring'sSea. ce that such e limit, and that we are not informed whether any orders which have been already issued in this connection arc or are not still in force. Tliat is in reference lo another topie, tlie re(|nest of (Ireat Bri- tain is that instruetions slionid be issued by the I'niled Slates (lovenunent to its cruisers in the Bering Sea not to interfere with British vessels. He passes from that : I need scarcely point out Ihal I he close time for seals, referred to in your telegram, is created undera Slalule of Ihe United Stales, wiiich is not obli- gatory except upon the subjects of tliat Power. The proposal contained in the inclosure lo your Conlidential despatch of Ihe 8lh March, iHHH, for the adoption of a similar close season by IJritish llshermen is at present receiving tilt! careful consideralion of my (lovernnient. Such a close time couM obviously not bo imposed upoii ouilishermen without notice orwithout afuller discussion than it lias yet undergone. You are aware llial, during llii' close time enforced by the United Stales Statute, Ihe seals, although (irotecled from slaughter by the use of firearms, may be killed in great numbers on their breeding grounds by Die persons who enjoy (he monopoly of the trade under Concessions from the United Slates (Joverninent. The lesl of the year these animal'j are, accordingto Mr. Hayard's statement in his despalcli of the~tli '>f February, 1888, " supposed to spend in the open sea south of the Aleutian Is- lands, " where they are probably widely scattered and difllcult to find. It would appear to follow that, if concurrent regulations based upon the Aineri- cam Law were lobe adopted by (ireat Hrilaiu and the United Stales, the privile- gesenjoyed by the citizens of the latter Power would be little if at all curtailed, while IJritish fishermen would find themselves completely excluded from the rights which until lately they have enjoyed witlioul question or molestation. In makingthis observation, I do notdesire lo i imate tliutniy CJovernment would be averse to entering into a reasonable agreement for protecting the hu'-bearing animals of the Pacific coast from extermination, but merely that a one-sided restriction such as that which a])peared lo be suggested in your telegram could not be suddenly and arbitrarily enforced by my Government upon the (Ishermen or this country. 1 have, etc., Lansdowne. Mr. Carter. It will now be perceived, let me repeat, that the negotiation entered into between the United States and Great Firi- tain, with every prospect at first of a favorable termination, had been arrested in consequence of protest having been received from the Canadian Government. I do not complain of that, or suggest its impropriety; I am merely stating the fact that it was arrested at that point and in consequence of that protest. The business continued in a condition of suspense in conse- quence of that for a very considerable time; although, if I rightly remember, the United Slates on more than one occasion during the interim rather pressed the British Government to give a decided answer ; but the next we hear of it — which is to the point I am engaged upon — is contained in Mr. Phelps' letter to Mr. Bayard of i .^i. . I ii 42 ORAL ARGUMENT Septcmbor 12lh, 1 888. Mr. PJielps had relurr.ed from his absence in the United States and agfin taken charge of the American em- bassy in London, and his communication is as " " Mr. liayai'd : follows to N" 82:1] Mr. Phelps t(j Mr. liaynrd Legation ok the Uniteh States, London, Sep'.emher I Sift, 1888. (Receiveil September 22.) Sir : Rol'erring to the sul)iocl of Iho Alaskan seal lisliprios, and to the pre- vious coiicspondencn on tiie subjeot between the Deparlment and tliis h?ga- tion, I have now the honor to acquaint you with the purport ot a conversation which 1 hekl willi Lord Salisbury in regard to it on the i'Mh August. illn< s, whicii has )>;cai>acilated nu; from business during most of Ihe in- terval, lias prevemed my Uiying it before you eailier. One of tiie objects" oi' the interview 1 tlieh sought witli liis lordship was to urge the completion of the convention between the Lnited States, (heat Hri- lain, and Russia, which under your instructions had previously heen the sub- ject of discussion S-elween the secretary for foreign alfairs, the Russum ambassador, and myself. This convention, as 1 have before advised you, had been virtually agreed on verbally, except in its details; and the Russian as well as the United States (iovernment were desirous to have it completed. The consideration of it had been sus|>inded for communication by the IJritish Government with Ihe Canadian Government, for which purpose an interval of seveial months had been allowed to elapse. During this lime the attention of Lord S .lisburv had been re|ieatedly recalled to the subject by this higalion, and rn those occasions the answer recedved from him was that no reply from the Canadian authorities had arrived. In the conversation on the i3th, above menlioned, I again pressed lor the completion of the convention, as the extermiualion of the seals by Canadian vessels was understood to be rapidly pr. ceeding. His lordship in reply did not question the propriety or the importance of taking measures to provent the wanton destruction oi" so valuable an imlustry, in which, as he remarked, England had a large interest of its own, but ;;'id that the Canadian Govern- ment objected to any such restrictions, and that until its consent could be obtained, Her Majesty's Government was not willing U> enter info the conven- tion; that time would be requisite to bring this about, an' that meanwhile the convention must wait. It is very apparent to me that tlie Rritish Gove nrncnt will not execute t'.,e desired convention without the concurrence of Canada. And it is equally apparent that the concurrence of Canada in any such arrangement is not to be reasonably expected. Certain Canadian vessf»ls are making a profit out of Uie destruction of the seal in the breeding season in the waters in ([uestioM, in- human and wasteful at it is. That it lea.ls to the speedy extermination of the animal is no loss to Canada, because no part of these seal (isheries belong to that country; and the only prolit open to it in connection with lliem is by destroying the seal in the Oi^'n sea (hiring the bree American cm- as follows to TED States, d September 22.) ^s, and to the pre- lenl and this lega- t ot a conversation 1 August. ing most oC I he in- lis Kiiilship was to Stales. (Ileal Hri- usly lien Ihe suh- lairs, the Russian e advised you, had md the Russian as liave it completed, ition l)y the Rrilish pose an interval of me the attention of ct hy this legation, that no reply from ain pressed for the seals by Canadian rdship in reply did ensures to provem h, as he remarUed, ; Canadian Gov(>rii- ,s consent could be ,er into the conven- iix' lliat meanwhile at will not execute . And it is equal'y igement is not to be g a profit, oat of the ers in ([uostiou, in- .ly extermiiuilion of seal fisheries belong ineclion wilh them ding time, alllioiigh )se saved are worth iteu States must, in ; destroyed or must lie vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation. Much learning has b >en expended upon the disrussinn jf the abslrnrt quislioii of the right of (na.v; clausum. 1 do not conceive it. lo be applicable to the present case. Here is a valuable fishery, and a large and, if properly mat.uged, perma- nent iudiistrv, the property of the nations on whose shores it k carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this i.-.isiness by the indiscriminate slauiililer and extermination of the animals in qiiiylion, in the open neighboring sea, during the period of gestation, when the common dic- tates of hnmanitv ought to protect them, were tlieie no interest at all in- volved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free. The same line of argument would take under its protection pircy and tlie slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are ma " things that can not be allowc.l to be done on the open sea with impunity, and against which every sea is mare daumm. And Hie right of self defense as lo person and property prevails there as fully as elsewhere. If the fish upon the Cana- dian coasts could be destroyed hy scattering poison in the open sea adjacent, with some small profit to "c.se engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that pncess would he no more destructive, inhuman, and wanton than t:;is. if precedents are wanting for a defense so necessary and s(. proper it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occision for thcui arose, undeterred by the discussion of abs- trictand inadequate lules. Especially should there be no hesitation in taking this course wilh the vessels of a colony which has for three years harassed the nsheries of our country with constant captures of vessels engaged in no violation of treaty or legal rights. The comity of nations has not deterred Canada from the per- sistent obstruction of justifiable and legilimale fishing by American vessels near its coast. What principle of reciprocity precludes us from putting an end to a pursuit of the seal by Canadian ships which is injusUnable and ille- gilimate? I earnestly recommend, therefore, that the vessels that have been already seized while engaged in this business he firmly held, and that measures be taken to capture and hold every one hereafter found concerned in il. If further le«islauon in necessary, it can doubtless be readily obtained. There need be no fear but tliat a resolute stand on this subj(!cl will at once put an end to the mischief complained of. It is not to be reasonably expected llial Great Britain will eiliier encourage or sustain her colonies in conduc! which she herself concedes lo bo wron^ .id which is detrimental to her own interests as well as to ours. More thnr^ lOOOO people arr^ engaged in Londan alone in the preparation of seal i^k^ s And it is understood that the Rrilish (iovernment has rcquestcil that clearances should not be issued in Canada for vessels employed in this business; but the request has been disregarded. I have, etc., E. J. Phelps. 44 ORAL ARGUMENT The learned Arbitrators will perceive that Mr. Phelps, at least, came to the conclusion at this moment that the further progress of the negotiation and any successful conclusion of it was impos- sible; anil impossible ii^ consequence of the intervention of Ca- nada; and that any assent to regulations which might be proposed and which wouhl be effective for the purpose would never be given by the Canadian (lovernment. Whether he was right or wrong in that opinion upon his part is not to my present pur- pose. It will perhaps be the subject of future discussion; but it is safe to conclude from the correspondance that I have read to the Tribuiuil that the consummation of the negotiation was arrested at this point — arrested by the intervention of Canada, and 1 do not find anywhere in this correspondence any suggestion on the part of Canada of another, or dilferent, or modihed scheme designed to accomplish the purpose of preserving the seals. I think there is no evidence that Canada had ever submitted any pro- position of that sort. This brings us to the conclusion of what, I think, may pro- perly enough be called the first staijc of this controversy. It is a stage whicli embraces these leading features : the capture by the cruisers of the I nited States of British vessels engaged in pelagic sealing; the objection and the nrotestof the Crilish dovernment, the ground of objection being that it was an attempt to enforce a municipal law of the United States upon the high seas; an avoi- dance of discussion of that (juestion by Mr Bayard ; a suggestion by him that the case was one of a peculiar property interest, and a case for the exercice of an exceptional marine jurisdiction, but that it would he wisest and best to avoid a useless and perhaps an irritating and abortive discussion upon the questions of right, if attention of nations could be called to the great fact that here was a useful race of animals, an important blessing given to makind, threatened with extermination by certain practices, and that the- refore it should be the duly, as it was certainty the interest of all nations to join pacifically in regulations designed to prevent the mischief. It includes the further feature that negotiations were set on foot for the purpose of carrying out these pacific intentions of the American Minister; that they were received promptly in the most friendly manner and in the same spirit by Lord Salisbury, British Secretary for Foreign Affairs ; that an agreement was substantially concluded between those parties which would have been carried into elfcct but for the objection interposed by Canada, a depen- dency of the British empire, and which was presumably, and in fact most deeply, interested in the carrying on of this pelagic sealing; that, so far as appears, no different scheme, no modified sug- ps, at least, er progress was impos- ition of Ca- be proposed (! never be as riirht or resent pur- ision ; but it have read >tiation was Canada, and ggestion on lied scheme he seals. I :led any pro- V, may pro- rsy. It is a )ture by the d in pelagic lovernment, to enforce a as ; an avoi- i suggestion terest, and a diction, but perhaps an 3 of right, if lat here was to makind, ,nd that the- iiterest of all prevent the were set on [ilions of the in the most lury, British substantially beon carried la, a depen- , and in fact Lgic sealing; odilied sug- OF MH. CAIITER. J* gestion, designed to carry out the same object was ever formnla- ted by the (iovernment of Canada, but that Canada remained in its condition of simple protest and objection to any scheme of prohibition such as had been presented; and the cessation, appa- rently final, of the negotiation in consequence of that objection. Those are the {)i'incipal features of what 1 have thought lit to call the first stage in this controversy. Now let me pass to tho second. Senator Morgan. Mr. Carter, do you understand that a British subject residing in Canada has the right, in a diplomatic sense, an international sense, to the protection of two Govern- ments? Mr. Carter. Canadian and British ? Senator Morgan. Canadian and British. • Mr. Carter. 1 never t! ought of that ; and any opinion I might give u|)on it would be of little value now. In the course of such rellections as I have given to these question, it has not yet occurred to me that that was material. Senator Morgan. The difiiculty, 1 would suggest, that occurs to my mind is this' : I can very well imderstand how a British subject is entitled to the protection of the British Crown and Co- vernment in respect to his national relations ; but I do not unders- tand how the Canadian novernment, as a Government, can inter- pose to protect British subjects within Canada, against an avowed policy of the British Government. Mr. Carter. I had not supposed that the Canadian Govern- ment was such a Government as could, in any sovereign capacity, or diplomatically, communicate with other Governments, or assert any rights in respect to other Governments. I had supposed that the colonies of the British Empire occupcd substantially some such position as the States of the American rnion occupy towards the United Stales Government, and that the citizens of Cauada in refe- rence to any defence which they might desire to iiiake against the acts of other Governments, would be obliged to a[»peal io the imp'^- rial authority; that their own Government was not able to give them any protection. They might appeal to their own Govern- ment in the first instance, but that Government, I suppose, \xould have, in turn, to appeal to the imperial authority. That i~ what 1 should suppose the slate of the case was ; but 1 may be in error about that. Sir John Thompson. Like most British subjects Canadians have a right to express their opinion on matters alfecling lb' ir own interests; and the Canadian Government has the means of expressing that opinion to the British Government. Mr. Carter. — I should suppose so; yes. A citizen of Canada it ORAL AlUaiMENT ,1 '. 'Mi li I! 1 1' ii'J ■i. , has Ihe riglit of every subject of Great Hritaiii to express his opi- nion upon all subjects of Hritisli policy, I suppose if any such policy should happen to bear heavily upon him; and bis own Government furnishes, doublloss, an instrumentality through which he can communicate that expression. Sip John Thompson. By which he can claim the protection of the Uritish Government. Mr. Carter. Uy which he can claim the protection. I should suppose that. There were some incidental matters connected with ihis li-st stage of the controversy, and which occurred during Ihe discus- sions in relation to it, which make a figure, but an unimportant figure, in it. For instance, there were claims for damages made by the British Government growing out of these seizures, and those claims were persisted in, and from lime to time made the subject of demand and of y Mr. Bayard that no lurther seizures would be made pen- ding the discussion, It is not important to my purj)ose here, but m^ OF MR. GAHTER. 49 ?sty's Govern- d even sei/eil ini the nearest i reached He tlieir aulhen- er the Fnited ind fi'.ither, to > Government, cnt the possi- lind yon tliat year Irorn Mr. uissioii of the ilace with Hri- liat Sir Jnlian eturn to Was- Her Majesty's . that a settle- ay be resorted Sdwardes. I was at this n 1887, with mentioned, and during IS in conse- e been that nin Govern- d to prevent t all events State, under idopted and ed bv Prosi- ourse under nited States, to of auspen- ig renewed; 'r these cir- } prohibition the attention )art. Those irmerly been e made pon- »se here, but I must remark that it is denied that such assurances were given, and 1 do not think there is any evidence of them. Lord Salisbury doubtless thought so. In the next place the suggestion of the British Government was that instructions should be given to prevent any recurrence of those seizures. This suggestion could not very well be made in the then existing state of business, without the expression of some desire or intention of reopening the negotiations for the adjustment of the matter, and therefore the letter also contained this : " The Marquis of Salisbury desires me to say that Sir Julian Pauncefote, Her Majesty's Minister, will be prepared on his return to Washington in the autumn, to discuss the whole question, and Her Majesty's Government wish to point out to the United States' (iovernment that the settlement cannot but be hindered by any measures of force which may be resorted to by the United Stales". The business was new to Mr. Blaine, and the whole subject doubtless new to him. He answered Mr. Edwardes. His answer is short : ^fr. Blaine to Mr. Edicardcs. Bar Hauhor, Aiiffiisl S4, 1889. Sir : I have the hop'^'' to acknowledge the receipt of your commnnication of this date, conveying i„ me the intelligence "that repeated rumors have of late reached Her Majesty's Government that United States cruisers have stop- ped, searched, and even seized British vessels in Behring Sea outside the 3-mile limit from the nearest land". And you add that, "although no official confirmation of these rumors has reached Her Majesty's Government, there appears to be no reason to doubt their autlienticity". In reply I have the honor to slate that the same rumors, probably based on truth, have reached the Government of the United States, but that up to this dale there has been no official communication received on the subject. It has been and is the earnest desire of the President of the United States to have sucli an adjustment as shall remove all possible ground of misun- derstanding with Her Majesty's Government concerning the existing troubles in the BehringSea; and the President believes that the responsibility for delay in the adjustment can not be properly charged to the Government of the Uni- ted States. I beg you will express to the Marquis of Salisbury the gratification with which the Government of the United Slates learns that Sir Julian Pauncefote, Her Majesty's Minister, will be prepared, on his return to Washington in the autumn, to discuss the whole question. It gives me pleasure to assure you that the Government of the United Slates will endeavor to be prenared for the discussion, and that, in the opinion of the President, the points at issue be- tween the two Governments are capable of prompt adjustment on a basis e nti rely honorable to both. 1 have, etc., James G. Blaine. But Mr. Edwardes pressed f^" a, more categorical answer to las note. On the 12th of September he writes ; uO OHAI, AlUiUMKM' l/r. ICdwnrdrs to Mr. Illaine. Washinoton, Seplembet' I -J, ISS9. My Heah Mn. Hi-ainf. : 1 slinuld bo very ivmcli obli^tcil if yon would kindly lel mn know when I may oxpccl, an answer lo tlio icqunsi of llor Majosly's GoveiiMr.;iil, wliicli I liad llic honor ol' connnunicalinf,' to you in my note of the "illi of Aui^usl, Uial instructions may be sent lo Alaska to pr.-vcnt. liio possibility of Iho s<"izurc of Hritish shii.s in Hchrin^' Soa. Hor Majesty s Govrrnniful are oarneslly awaiting tbo roply of the United Stales (iovprnment on Ibis subject, as tbe recent reports of seizures having laken place are cau- sing mucb excitement both in England and in Canada. I reuuiin, etc., H. G. Edwahdus. Mr. Ulainc answers that : ; ' Mr. Blaine to Mr. Edwardes. Bwx. UxiiuOR, Seplemlier 14, J8S!J. Sin ■ I have the honor to acknowledge the receipt of your personal note of theV'tii instant, written at Washington, in whicb you desire to know when you may expect an answer to the request of Her Majesty's (Government. " that inslrnctions may be sent lo Alaska to prevent tbe possibility of the seizure of British ships in Hebri.ig Sea. " ,. , „ ,, ■ , . 1 had suppos.'d ,bat my note of August 24 would satisfy Her Majesty s Government of the President's earnest desire to come to a friemlly agreement touching all matters at issue .lelween the two (Governments in relation to Behriii" Sea, and 1 had further supposed that your mention of the otbcial inslriirUon to Sir Julian I'auncefole lo proceed, immediately after bis arrival in October, to a full discussion of the question, removed all necessity of a preliminary correspondence touching its merits. Heferriug more particularly lo tlu^ (luestion ofwbich you repeat tbe desire ofyour (Jovernmeut for an answer, 1 have llie honor lo inform you that a categorical response would have been and still is impracticable — unjust to this (Government, and misleading to the (Government of Her Majesty. It was therefore the judgment of the President that the whole subject could more wise'y be remanded to the formal discussion so near at band which Her Majesty's fGovernment has proposed, and to which the (Government of the United States has cordially assented. . , . c- It is proper however, to add that any instruction sent to Behring Sea at tbe time of your original request, upon the 2ith of August, would have failed to reach those waters before the proposed departure of the vessels ot the United States. I have, etc., t n d •>,., James G. Blain'k. These letters, it will certainly be agreed, are diplomatic — one party pressing for an answer to a question, and the other gently deferring it and looking to a period when a more satisfactory discussion should be brought on. Sir Charles Russell. The next letter from Lord Salisbury is important. OF MR. CAIITKR. 51 I woulil kindly llfT Majosly's in my nuU- of lo |)li'V(Mlt tlio llor Majesty's cs (iovoninient place are cau- VAllDKS. nrsonal note of to know when 'rnment, " that f the seizure of ' Her Majesty's idly afiieenient in relation to of the ofliinal ifter his arrival necessity of a peat the desire )rni you that a jle — unjust lo lajesty. It was pct could more and which Her ernment of the I Behrinf,' Sea at ould have failed e vessels of the Blaine. iniatic — one e other gently e satisfactory 1 Salisbury is Mr. Carter. I have not marked it as important, hut if you think so Sir (Miarles, I will he f^Uul lo read it. Sir Charles Russell. I wish you would. It is on the same page, 11)7. Mr. Carter. I will do so. It is from Lord Salisbury to .Ur. Ed- wardes and was left at the Department of Stale. The MarquU nf Sdl'islninj lo Mr Kduuirdcs. JI.eft at tlie Dopaitnicnt nf Stiita \>y Mr Kdwardos.] KouKKiN Okkici:, October i>, IS89. Sin : At liiR time when I lie seizures nf British siiips hunlin;,' seals in Uehrin^j's Sea during' llie years ISKO and 1H87 were the subjects of discussion the Minister of the Uniti-d States made certain overtures to Her Majesty's (;overiiment with respect to the instliutionof a close timi; for the seal lisiiery, for tiie purpose of preventing' the extirpation of tli(! species in ttiat part ot i\\i' world. Wilhoul in any way admittini; that ronsiderations of this order (-ould Justify tiie seizuri' of vessels wiiich were transf.'ressin>,' no rule of international law, Her Majesty's (iovernment were very ready to af,'reo that the subject was one deserving of the ^.'ravest attention on the jjart of all the poveinmenls interested in those waters. The Russian (Iovernment was disposed to Join in the proposed nej^otia- tions, but they were suspended for a lime in consequence of objections raised by the Dominion of Canada and of (hmbts thrown on the physical data on which any restrictive lejiislation must liave been based. Her Majesty's (iovernment are fully sensible of the importance of this question, and of the fireat value which will attach lo an international agreement in respect to it, and Her Majesty's representative will be furnished with the requisite instructions in case the Secretary of Stale should be willing to enter upon the discussion. You will read this dispatch and my dispatch No. 201), nf this date, to the Secretary of State, and, if he should desire it, you are authori zed to give him copies of them. 1 am, etc., Salisbury. Yes, it is quite important, and I am obliged to my learned friend for the suggestion that it be read. These demands by the British (Iovernment, occasioned by the new seizures, and this sort of diplomatic correspcndence having been begun, during which preliminaries the now Government of the United States was occupied in considering the proper attitude to be taken, Mr. Dlaine, linally, on the 22nd of January, 1890, addressed Sir Julian Pauncefote and delivered to him the result of the consideration and rellection which President Harrison had given to the subject. This is on the 22nd of January, 18U0. Sir Charles Russell. If you will pardon me one moment you have only read one of those two despatches to which 1 refer- red. One was the one I requested, and the other immedi^itely fol- lowed it. 8t OH A I, AHL'CME.NT Mr. Carter. I did not iulciid lo rend if unless you dosired if. Sir Charles Russell. Not iil all. Do not go fo lluit trouble. Mr. Carter. I now road flic letter ot Mr. Blaine, January 22, 1890: Mr. Dlainc lo Sir Julian J'auiicc/ote. ijf .; Dkpahtmknt ov State, Washiuf/loH, Janiiunj ii, 1890. Sir : Sevoral wpoks iiave clapsod since I liiid llie lioimr (o receive tliroiifili liio liaiiils III' Mr. iMlvvanlns coiiiosol'twn dispalrlit^s I'loiii Lord Salislmry rmii- plaininj.' ol llie coiirsi' ot' the I'liitcd Stalos rcveiUK'-ciiUer /l«s/( in iiiliircppliiiff Canadian vessels sailing' nndei' the Urilisli lia^' and enf.'a^ed in takinf; far seals in the waters of tlie Helirin;/ Sea. SiibjcctA which could not he postponed have engaged the attention or thi» Department and have rendered it im|)ossihle to ^'ive a formal answer to Lord Salisbury unlit the present tune. In the opinion ol'lhc I'lesident, tlieCanadian vessels arrested and detained in tiie Heluin^' Sea were env'a;.'ed in a pursuit tliat was in itself conirn bonoa mores, a pursuit wliicli of necessity involves a serious and permanent injury lo the rif.'hts of the (Jovernnieiit and people of tlie IJiiiti'd Stales. To establisli this firound it is not necessary to ;\v^u,\ ttie qui^slion of Itie extent antl nature of lh(! sovereifiuty of tliis (iovei'iuneut ovei' the watrrs of the Reliriiif; Sea; it is not necessary to explain, celniinly not to deline, the powers and privilef,'es ceded by His Imperial Majesty tlio Emperor of Hussia in the treaty by which the Alaskan territory was transferred to the United Stales. The weifjhty con- siderations ^'rowin^i out of Ihe acquisition of that teirilory, with all ttie ri;jlits on land and sea inseparal)ly connected therewith, may be safely left out of view, while the grounds are set forth upon which this (lovernment rests its justilication for tlie action complained of by Her Majesty's Government. It can not be unknown to Iter Majesty's Government that one of the most valuable sources of revenue from the Alaskan possessions is the fur-seal fisheries of tlie Behriuf; Sea. Those fisheries had been exclusively controlled by the Government of Hussia, without interference — or without question, from their orif.'iMal discovery until the cession of Alaska to the United States in 1807. From 1807 lo 1886 thrivilef,'os eaty by wliicli ) weighty con- all the rights 'ely left out of inent rests its irnment. rie of tlie most s the fur-seal 'ely controlled question, from ited States in leen undistur- erruplion and ing from fime of whales had )se waters had rst by Russia icoi;nition of a 1 Ihc open sea iwn opinion of servation and 3 sense by the n the Rehring fi to preserve, e of the world of the female s reckoned as an immediate loss of three seals, besides the future loss of the whole nuinbei' which the bearing' seal may produce in the successive years of life. Thr destruction which results from killiliK seals in the open sefi proceeds, there- fore, by a ratio which constantly and rajiidly increases, and insures llw' total extermination of the spe(;ies within a veiy brief period. It has liins become knowi" that the only proper time i'oi- the slaufihter of seals is at the season when they betake themselves to the laud, because the land is tiie only place where the necessary discrimination can be made as to the af.'e and sex of the seal. It would seem, then, by fair reasoninj^, that naticuis not possessing llie territory upon which seals can increase liieir numbers by nalural growth, and thus afl'ord an annual su|>ply of skins foi' the use of niiiukind, should refrain from the slaughter in open sea wheie IIm^ tlestruction of the sjiecies is suic and swift. Afl(!r the acquisition <>f .\laska tiie government of the United States, through compiitent agents working imder the diiection of the best experts, gave careful attention to lln- imiirovement of the seal llsherios. Procei'ding byaclosf! ol)e(lience to tiic laws (if nature, anil riyidly limiting the number to be annually slaugiitered, the (iovernment succeeded in increasing the total number of sc-als and adding correspondingly and largely lo the value of the lisheries. In IIk; conise i)f a few ytsars of intelligent and interesting experiment the number that, could be safely slanghlered was fixed at 100,000 annually. The (lompany to which tin' administration of the lisheries was intrustedby a lease from Ihistiovernment has paid a rental of $ .■)0,00 business had grown so large tiiat the earnings of Knglish laborers, sinci- Alaska was transferred lo the United States, amount in the agj-'regate to more than $ 12,000,000. The entire business was tlien ('onductcd peacefully, lawfully, and profita- bly — prolitably to the United States for the rental was yielding a moderate interest on the large sum wiiich this (iovernment had paid for Alaska, inclu- ding the rights now at. issue; prolllaldy to the .\laskan Company, which, undei' governmental direction and restriction, had given unwearied pains to tiiecaro and development of tiie fisheries; prolitably to the .\leut3, who were receiving a fair pecuniary reward for their labors, and wen; elevated from semisavagery to civilization and to the enjoyment of sciiools and churches provided for their benefit by the (lOvernment of the United States; and, last of all, prolitably to a large body of English laborers who had constant employment and received good wages. Tliis, in brief, was the condition of the Alaska fur-seal fisheries down to the year 188(5. The precedents, customs, and rights had been established and enjoyed, either by Russia or the United States, for nearly a century. The two nations were the eniy powers that owned a foot of land on the continents that bordered, or on the islands included within, the Rehring waters where the seals resort to breed. Into this peaceful and secluded field of labor, whose benefits were so eiinitably shared by the milive Aleuts of the Pribilof Islands, by the United States, and by England, certain Canadian vessels in 1880 asserted their right to enter, and by their ruthless course lo destroy the flsheiies and with them lo destroy also the resulting industries which are so valuable. The Government of the United Slates at once proceeded to check this movement, which, unchecked, was sure to do greatand irreparable harm. It was cause of unfeigned surprise to the United States that Her Majesty's Government shoulil immediately interfere lo defend and encourage (surely to encourage by defending) the course of the Canadians in disturbing an industry which had been carefully developed for more than ninety years under the r '• % II, ORAI. AIU;iJMKNT iliit^H of Hussia ,111(1 llio Hiiitt'il Stiilcs— (levplopiil in such ;i ninnnrr as nnf, to iiileilVrc willi llic |iiil)lic rif^'lits oi Hit! privale iritlusliies of any oilier pcoplo or any ollior pcMsoii. WlifiKT iliil till' ships of Caiiaila dcrivt' tho rifiht to do in I8SH that whicl: Ihcy liii'l iffraini'd lioni doiiiK •'"•■ moi"' llianninfly years? Upon \»hal ^roundH did'li'T Maji'sly's (lovt'ininiMil dclrnd in Ihr yt-ai' \HHt\ a coiiisc of londuol in Ihi; Iti'liriii^i Sea whii'h shi- had caii'lully a\oi(h'd ever sinn? Ihc ilisiovcry of llial Hca? Hy whal reasoning did llt'r Majcsly's Kovcrnmiinl idniludn Ihal an acl may hi' {'oniniillcd wilh iinpnnily a^'ainst the lijrhts of th(! IJiiilfil Stales which iiad never heen allenipled ayainsl Ihe same immIiIs when hehl l)y tho Hussian Knipiie? So great has liecn the injury lo Ihe lii^lieries from Iho irrcfjuhir and (h's- Iructive slau^ihter of seals in tho open waters of Ihe Heliring Sea hy Canadian vessels, Ihal whereas Iho (Wiveriiment had allowed 100,000 lo he laken an- nually lor a series of years, il is now compelled lo reduce Ihe luunher lo ((0,000. If four years of this violation of nalural law and neinhlxir's rif,'hls has reduced Ihe annual slau^ihler of seal hy 40 per ceiil, it is easy to see how short a period will he required lo work Ihc lolal deslruclion of Ihe llsheries. The ground upon which Her Majesty's (JovernmenI justilies, or at least defends Ihc course of Ihe Canadian vessels, rests upon Ihe fact Ihat they are conuuitlin« Iheir ads if deslruclion on Ihe hi^li seas, viz, more than :i marine miles from Ihe shoni hm-. II is douhlful whelher Her Majesty's (loverninoul would ahide hy this rule if the attempt were made lo interfere with the pearl fisheries of Ceylon, which extend more than 20 miles froiri Ihc shore line and liave heen enjoyed hy Knf,'land without molestation ever since their aoquisl- tion. So well reco^nized is the Uritish ownership of those lislieries, regard- loss of Ihe limit of Ihe three-mile line, that IlerMajesly's (;overnment feels authorizeil lo sell Iho pearl-llshin;,' ri^iht from year to year lo the hif;hest hiddcr. Nor i-^ it credihle Ihat modes of lishing on Ihe Grand Hanks, altoge- ther practicahlc hut highly (ieslruclive, would he juslilled or even permilled hy Creal Britain ou the plea that Ihe vicious acts were committed more than ;i miles from shore. There are, aecordiuf; to scienlilic authorily, " great colonies of llsh " on the " • ewfoundlind hanks. " These '. olonies resemhle Ihe seats of great popu- lations on laud. They remain stationary, having a limited range of water in which lo live and die. In these great " colonies " it is, according lo expert jiulgmeul, comparatively easy lo explode r |H-ii|il(> Iti Ihal which \>h.'il. fji'diiiidH r roiidiicl ill (lisrovcry of lii(lr> Ihal an liiiili'd Sliiles I h(!l\ Caiia hin's rights sy lo SCI- how !hi' iisht'i'ii'H. i, or at luasl. that tlipy art! liian .1 murine s (ioverninonl vilh Iho poarl siioii' lini! and tiii'ir aiu|iiisi- lerifs, ifigard- prnnicnt I'oels o I hi' liifjhost llaiiks, alio;,'!— pvfiii porniillod led more than es of fisli " on of j;real |io[)n- ge of wali'r in ding lo px[)ftrt owder in such destroy counl- o prevent the id lakes of (he ted Willi effect, fish in propor- m tiiousand to a act could not lad been corn- are cnf,'aged in ' reproduction ng Ihe species eniporary and mployment of ruction of fish food for man Hsly maintain if tlie common right-< of man? Are the supportern of Justice in all nations to lie declared incompetent lo prevent wriiii(.'s so odious and so deslructive? In the jiiiluiiH'iil (if this (iovi'inmeiit the law of ltii> sea is not laulrsstiess. Nor ran the law nl' Hie sra and the Ijlu'ity uliirli it I'onl'ers and wliirli it |irii- terts he |)i'ivi'ited t.i jiislify ads wiiieli are imiiioril in theniselves, wliii-h ire- vilahly tend to results against Ihi' iiilerests and against Ihe widlare of man- kind. One step heyond (hat which Her Majesty's (iovernment has taken in this contention, and |iiracy iiiids its Juslillcalion. The Piesideiit dues not conceive it possihlc Ihal lli'r Majesty's (iiivcriinii'iil could in fact In- les>< indif- ferent to these evil results than is Ihe (iovcinment of the United States. Miit he hopes that Iter Majesty's (iovei iimeiit will, alter Hiis frank expression of views, more readily comprehend Ilic position of tjie (Jovernment of the Uni- ted Stales touching this serious qnestion. This (iov<>rnment h.is heeii ready to concede miu'li in order to adjust all ilifTereiices of view, and liiis, in the juilgmeiit iif the President, already pi'o|Kised a soliiliiin not only ei|uitahli' hut generous. Thus far Iter Majesty's (iic. iiiueut has declined to accept the proposal of the I'nited Slates. The President now awaits with deep interest, not unmixed with solicitude, any proposition for reasonahleudjuslment which Her Majesty's (iovernment may submit. The forcible resistance to which this liovernmeul is constrained in Ihe Hehring Sea is, in the President's jiulgineiit, demanded not only by the necessity of defending the traditional and long- estnhlished rights of the United States, but also the rights of good government and of good morals the world over. In this contention the (iovernment of the United Slates has no occasion and no desire to withdraw or modify the positions which it h'\s at any time maintained against the claims of the Imperial (lovornmeut of Hussia. The United Slates will not withhold from any nation Ihe jirivileges which it de- manded for itself when Alaska was part of the Hussian Empire. Nor is the (jovernment of the United Slates disposed lo exercise in those possessions tany less power or aulhorily than it was willing to concede to the Imperial (iovernment of Hussia when its sovereignly extended over them. The I'resi- denl is persuaded that all friendly nations will concede to the United States he same rights and privileges on the lands and in the waters of .Maska which the same friendly nations always conceded to the Empire of Russia. I have, etc., James G. Blmne. The President. If you ploaso, Mr. Carter, you may continue your argument to-morrow. Tribunal adjourned until Thursday, April dIUli at 11. 30 a. m. •M .M. EIGHTH DAY. APRIL 13 •1893 I* '"^i III ThoTriiunal mot pursuanUo adjournment. The President. lAIr. Carter, when you are ready to continue your argument, \vc will hear you with pleasure. Mr. Carter. Mr. President, when the Tribunal adjou. ned yesterday I was engaged in explaining the leading features of what I called the second stage of the controversy; which commenced with the beginning of tho administration of President Harrison. 1 had in substance brought out, or endeavored to bring out, these features : that for a considerable period of lime prior to the acces- sion of President Harrison the negotiations which had been enter- ed into between the two Governments had been interrupted in consc([uence of the objection of Canada, and they were in a state of suspended animation, so to speak, with no immediate prospect of tlieir being renewed; that under ihese circunstances President Harrison fell it his duty to i^sue the proclamation required of him by law, forbidding all pelagic sealing in the waters of Alaska; that that proclamation was followed by additional seizures, and those seizures brought renewed protests from the British Gov- ernment, and thus the controversy was renewed; that the de- mands of the British Government consequent upon their seizures were repeated from time to time, and some pressure was exerted upon the United States for the purpose of inducing the Government to issue instructions to prevent the further interference with Brit- ish vessels engaged in pelagic sealing; that while this was going on, the Government of President Harrison took the whole subject into consideration, and finally the views of the Government were expressed in a note by Mr. Blaine to Sir Julian Pauncefote, with the reading of which the session of yesterday was concluded. The Tribunal will have observed that Mr. Blaine in this quite long note stated rather fully the substantial ground upon which the Government of the United States placed itse'.x. Tiiose grounds had not been theretofore stated. They had been hinted at and inti- mated by Mr. Secretary Bayard in his instructions to the American Ministers at foreign Governments, designed to call the attention of foreign Governments to the subject with the view that some ami- cable adjustment of the matter might be made without any resort OF MR. CAUTKR. 87 93 idy to continue inal adjou. ned catures of what ch commenced ident Harrison, iring out, these or to the acces- hadbeen enter- interruptod in were in a state ediate prospect inccs President at ion required n the waters of itional seizures, he British Gov- 1; that the do- n their seizures ire was exerted he Government •ence wilii Brit- tliis was going } whole subject ivernment were auncefote, with oncluded. ic in this quite nd upon which Tiiose grounds ated at and inti- tlie American tlie attention of that some ami- ;hout any resort to discussions upon which differences of opinion might be enter- tained. He avoided, in other words, all discussion of the grounds of right upon which the United States placed itself. That discus- sion of the grounds of rig!it, that statement of the attitude and position of the rnited States Government, was made for the first time by Mr. Blaine in the note which 1 read just at the close of yes- terday's session. In substance those grounds were that the United States was carrying on on industry in relation to these seals, caring for them, cherishing them, taking the natural increase from the herd and preserving the stock on the Pribilof Islands; that this was an industry advantageous not only to its lessees but, what was of much more importance, advantageous to mankind; that tlie Dur- suit of pelagic sealing threatened that industry with destruction, destruction not only to the interests of the United States and its citizens but also to the larger interests of mankind; that it was essentially and absolutely wrong, and should not he permitted, and therefore that the United States had a right to prevent it, w!ien, added to its essentially destructive and illegitimate character, it had this injurious etfect upon a special industry and right of the United States. Those Averc the grounds upon which the case of the United States was put by Mr. Blaine, and put by liim, as I have already said, for the first time in that full and complete form. After the receipt of that note by Sir Julian, he addressed the followi.ig brief communication to Mr. ijiaino, which is found on page 204 of the American Appendix : Sir Julian Pauncefote to Mr. Blaine. , 'M''AsniNOTON, Fehrunry 10, 1890. Srn : Her Majesty's Government liave had for sometime under tlioir consid- eration the sufJ!geslion ivzia in the course of our interviews on the question of the seal fisheries in i^ehrinit's Sea, that it might expedite a settlement of the controversy if the tripartite negotiation respecting the establishment of a close time for those (ssheries which was commenced in London in 1888, but was suspended owing to various causes, should be resumed in Washington. I now have the honor to inform you that Her Majesty's Government are willing to adopt this suggestion, and if agreeable to your Government will take steps concurreully with them to invite the participation of Russia in the renewed negotiations. 1 have, etc., Julian I^auncefote. Here we find a suggestion from the (jovernment of Great Bri- tain that the original negotiations, which had b(>en interrupted foi' various causes, should be renewed in the city of Washington and that suggestion was accepted by Mr. Blaine. After that it appears that some personal communications had taken place in Washing- M i fe§ lis ORAL ARGUMENT ill ton between Mr. Blaine and Sir Julian respecting the resumption of the negotiations, and the probability, or possibility, that they might be brought to a successful issue. Mr. Blaine had suggested in the course of those personal communications that he thought it quite improbable that the assent of Canada would ever be obtained to any regulations or to any settlement which would have the ellect of prolecting the seals from extermination. I presume — it seems fairly prcsumal)le — that Sir Julian had answered those sugges- tions by intimating that he was of a contrary opinion, and that it was not impossible for sonve arrangement to be reached which would be satisfactory to Canada upon the subject. This rather called upon Sir Julian to submit some proposition that would pre- sumably beagreeable to Canada, and which he might suppose would not be unacceptable to the American (lovernment; and conse- quently in April 1890 — the date is not given; it appears to have been received on the 30th of April— Sir Julian addresses Mr. Blaine, on page 204 thus : — Sir Charles Russell. The date is the 29lh, I think. Mr. Carter. The -29th. Sir Julian Paimcefole to Mr. Blaine. Wasiiinoton, --l/{ it — I is Ijlack with ml half a iiiilo Ivns layai'Miuid icrc tljp killing quest of food if^ Ihi'ir solii- iialiii^ vessels landing.' piac- to the fullest ithin a radius luld certainly ■ (jovernmcnt he prevention r to inclose a ,'iding for the •lain specified bed together, slTec* to them. e " migration the passes of s and to the 1 in Article V, n. The draft, tcr full exam- provision for the report of nt element of ■anpement the )wers shall he m, and it only iC rati on and to a spirit of jus- linate the coii- Iroversy in a manner honorable to all parlies and worthy of the three great nations concsrned. , , 1 have, etc., ; ' -..•■"■■ Julian Paunckfote, (For inclosures see House Ex. Doc. No. 4S0, pp. 34-60.) Thai letter tlie learned arbitrators will perceive brings forward a somewhat new aspect of the matter. It is designed to lead to a renewal of the negotiations. It proceeds, upon the expressed belief that the great object of all parties should be the preservation of the seals for the benefit of mankind, and that any particular inter- est should not be allowed to stand in the way of the accomplish- ment of that prime end. He then suggests that pending the negotiations some provision- al arrangemen' '^ould be entered into for the purpose of protec- ting, in the mean.vhile, the seals from the destructive pursuit. He suggests there — and it was the first lime that any such suggestion was made to the American Governmcntby theBritish Government, — that there were great dilTerences of opinion as to the facts, and consequently great dilTerences of opinion as to the extent of the protection which was necessary. These dill'erences of opinion as to the facts — which, I say, were thus intimated for the first time — were based in part upon evidence which had been submitted by Sir Julian Pauncefote to Mr. Blaine in the shape of quite a series of documents on the 9th of March preceding. I read now a letter from Sir Julian Pauncefote to Mr, Blaine w^hich is contained in Exec- utive Document. (House of Representatives, 51st Cong., FirstSes- sion,No. 450.) The letter is found on page 26 of that document, and is as follows : Sir Julian Pauncefote lo Mr. Blaine. (Extract). British Legation, Washington. D. C, March. 9, 1890. Dear Mr. Blaine : I have the pleasure to send you herewith the memoran- dum prepared by Mr Tupper on the seal fishery question, to which he has appended a note by Mr Dawson, an eminent Canadian official. Believe me, etc., . Julian Pauncefote. That letter is very likely somewhere in the correspondence contained in the British appendices, but I do not happen to find it. Mr. Foster. The memorandum accompanyiho the letter is found in the British Appendix, No. 3, p. 436. Mr. Carter. The memorandum is found in the British Case at 11 f 62 ORAL AHCUMENT the place slated by Gen. Foster, but the documenls themselves Ibus funishccl are all coulaiiied in tlie Ihird volume of the Appendix to the British Case, p. 4:J0 ; and il is necessary also to say V. S. No. 2, 1890. . , . ■ Those documents are too long tor me to read and it is not imporlant that I -dioukl read Ihein, but I can brietly state llieir general naliire. They contain a greal deal of evidence designed to make il appear that the deslruclive nature of pelagic sealing is not as great as it had some times been represented to be, and also sonn^ matter designed to show that the destrnclion of seals is owing to the practices pursued on the Pribilof Islands by the Uni- ted States (iovernment in relation to the herd. All that matter which, I presuuie, proceeded from officials of the Canadian Govern- ment, is calculated to show that no extreme measures of protection were necessary. This communication of documents to the American Government by Sir Julian Paunceiote on March 9, 1890 was, I think 1 am safe in saying, llie Urst intimation ever received by the Government of the I'nited States that the original measure of prevention sugges- ted by Mr. Phelps to the Marquis of Salisbury and accepted provi- sionally by him, was too extreme a measure. More than two years had elapsed since that proposition had been submitted and thus provisionally accepted by the Marquis of Salisbury, and during all of that time, although it was known that the adoption of the measure had been urested h\ consequence of the objection of Canada, no diilerent measure had been suggested as coming from Canada, and no criticism on tht part of Canada upon the character of that proposed restriction had been otTered. On the 9th of March, however, evidence showing dillV rences of opinion in respect lo the effect of pelagic sealing was placed before the United Stales Gov- ernment. Presumably it came from Canada. It is to the ditTer- ences of opinion expressed in these documents that Sir Julian refers when he says : Tlie prnat divergence of views which exists as to whet.lier any restrictions of pelagic sealin;.' are necessary for the preservation of tlie fur-seal species. and, if so, as to tlie character and extent of such restrictions, renders it impossible in my opinion to arrive at a solution • 'lich would satisfy public opinion either in Canada or Great Rritain, or in any country which might be invited to accede to the proposed arrangement, without a full inquiry by a mixed commission of experts, the result of whose labors and whose investi- gations in the region of the seal lishery would probably dispose of all the points in dispute. The point, therefore, of Sir Julian is this : " We have now arri- ved ata dilVerence of view in reference to matters of fact connec- ed with seal life and with pelagic sealing. Those ditferences of wmmmm OF MR. CARTER. 63 isolvos llius ippondix to suy r S. (1 it, is not slalo Ihoir cp (Jcsipinecl ic scaling- is i)e, and also of seals is by the llni- tlial matter ian Ciovorn- Df protection Sovermnont ik 1 am safe vornment of tion sugges- epted provi- an two years cd and thus and during plion of llic objection of oming from he character )th of March, espect to the Stales Gov- lo the dilVer- it Sir Julian uy restrictions ir-seal species. )ns, renders it I satisfy public iiich might be II inquiry by a whose investi- iose of all the ive now arri- fact connec- iifferences of view which now exist between us are irreconcilable upon any evidence which is l»efore us. Our object is however, a common one, the preservation of the seal species for the benelit of maiikind. What is needed in order to enable us to come to some arrange- ment which will accomplish that prime object is that we should be Ihorouglily informed of the facts, and in a manner which will leave no room for doubt. When we ascertain the Irulh upon those points, then,presumably,atleast, we shall liiid nodifhculty in coming lo an agreement. We must recognize the truth as it shall (Inally be discovered. Whatever measures of protection the truth thus ascertained shall point out as necessary are the ones to be adopted . The inslrumentality which he suggests — and it is the first sug- gestion of a metliod of removing all doubts and ascertaining what the real truth about the matter was — was a mixed commission of experts ; and, in saying that they were to be experts, of course it was understood that they should be gentlemen perfectly compe- tent to deal with all the (luestions which arose in connection with that subject, and with the question of natural history as well; in other words, that they should be men of science, should act under the obligations which attach to men of science, should have no object in view except the ascertainment of the truth itself; and that when the report was received from such gentlemen, its conclusions should be absolutely relied upon by the two Govern- ments as the basis of their action. This is his suggestion. He further says in this note : I have Uie honor to enclose the draft of a preliminary convention which I have prepared, providing for the appointment of a mixed commission, who are to report on certain specitic questious within two years. This matter has been alluded to already in our long debate upon the motion to reject the supplementary report of the Com- missioners of Great Britain. Itis important, however, that I should brielfy allude to it now. The draft convention which he proposed is contained in the same part of volume three. Appendix to the Bri- tish Case, page 457 : THE NORTH AMERICAN SEAL FISHERY CONVENi >N TITLE Convention between Great Britain, Russia, and the United States of Ame)l^a, in relation lo the fur-seal fishery in the. Behring Sea, the Sea of OchUsk, and the adjoining luaters. PHEAMDLS The Governments of Russia and of the United States having represented to the Government of Great Britain the urgency of regulating, by means of an in- If i 64 ORAL AIKJUMENT ternational agreement, the fur-seal lishery in HeliriiiRSea.lhe Seaof Ocholsk, anil the adjoining' waters, for the preservation of the fur-seal species in the North Pucitic Ocean; and dilferences of opinion iiaviuii,' arisen as to the neces- sity for the proposed af,'reenifnt, in consequence whereof the three Govern- ments iiave resolved to institute a full inquiry into the subject, and pendinj^ the result of such inquiry, to adopt temporary measures for the restriction of the killiufi of seals durin;,' the breeding season, without prejudice to the ulti- mate decision of the questions indifl'erence in relation to the said lishery. The said three Governments have appointed as their respective pleni- potentiairies. Who, alter having exchanged their full powers which were fonnd to be in good and due form, have agreed upon the following articles : AUTICLE I MIXKD COMlllSSiON OF EXPEUTS TO DE APPOINTED V-l ;i The High Contracting Parlies agree to appoint a mi sd commission of experts who shall inquire fully into the subject and report to the High Con- tracting Parties within two years from tiie date of this convention, the result of their investigations, togetiier with their opinions and recommendations on the following questions : \) Whether regulations properly enforced upon the breeding islands (Ro- bin Island in the Sea of Ochotsk and the Commander Islands and the Pribylov Islands in the Reining Sea) and in the territorial waters surrouding those is- lands are sufficient for the preservation of the fur-seal species '? 2) [f not, how far from the islands is it necessary that such regulations should be enforced in order to preserve the species "? 3) In either of the above cases, what should such regulations provide ? 4) If a close season is required on the breeding islands and territorial wa- ters, what months should it embrace ? 5) If a close season is necessary outside of the breeding islands as well, what extent of waters and what period or periods should it embrace ? Article II ON IIEGEIPT OF nEPORT OF COMMISSION QUESTION OF INTERNATIONAL REGULATIONS TO DE FORTHWITH DETERMINED On receipt of the report of the Commission and of any separate reports which mKy be made by individual commissioners, the High Contracting Part- ies will proceed forthwith to determine what international regulations, if any, are necessary for the purpose aforesaid, and any regulations so agreed upon shall be embodied in a further Convention to which the accession of the other powers shall be invited. Article III ARBITRATION In case the High Contracting Parties should be unable to agree upon the regulations to be adopted, the questions in difference shall be referred to the arbitration of m\ impartial government, who shall duly consider the reports hereinbefore mentioned, and whose award shall be final, and shall determine Ihe conditions of the further Convention. ■ '■ti'^^ 7r :■ ' -^1 'ivrjiij" -l 'r=i^ iPiiiii ■.^•-^^SlM^ !aof Ocliolsk, pecies in the to the ueces- hiee Govern- , mid pending restriction of i:o to the ulti- id fishery, lective pleni- 'onnd to be in ommission of he Hifth Con- on, the result nendations on ip, islands (Ro- il the Pribylov iding those is- jh regulations provide ? territorial wa- ands as well, race ? L HECULATIONS sparafe reports ntracting Part- ilations, if any, agreed upon on of the other agree upon the referred to the der the reports ihall determine OF MR. CARTKIl. O;} AivncMc IV PHOVISIO.NAL KKGULATIONS Pending the report of the Commission and for ;- lonlhs after the date of such report, the High Contracting Parties agree to auopl and put in force as a temporary measure and wlliiont prejudice to the ultimate decision of any of the questions in did'ercnce in relation to the said fishery, the regulations contained in the next following articles Nos. ;> to 10 inclusive. AnncLK V SKAL KISUEIIV LINK A line of demarcation to be called the " seal fishery line " shall be drawn as follows : From Point Anival at the southern extremity of the Island of Saghalien in the Sea of Ocliotsk to the point of intersection of the ;iOth parallel of north latitude with the 100th meridian of longitude east from (ireenwich, thence eastward along the said uOlli parallel to its point of intersection with the 160th meridian of longitude west from Creonwicli. AnxicLE VI CLOSK TIMK The subjects and citizens of the High Contracting Parties shall be prohi- bited from engaging in the fur-seal lishery and the taking of seals by land or sea north of the seal fishery line from the 1st of May to tlie 30th of June, and also from the 1st of October to the 30th of December. Articlk VII PREVENTION OF MARAUDEHS During the intervening period in order more effectively to prevent the surreptitious landing of marauders on the said breeding islands, vessels en- gaged in the fur-seal fishery and belonging to the subjects and citizens of the High Contracting Parties, shall be prohibited from approaching the said islands within a radius of ten miles. Article VI H FURTHKH PROVISIONAL REGULATIONS The High Contracting Parties may, pending the report of the commission, and on its recommendation or otherwise, make such further temporary regu- lations as may be deemed by them expedient for better carrying out the pro- visions of this convention and the purposes thereof. Akticle IX PENALTY FOR VIOLATION OF PROVISIONAL REGULATIONS Every vessel which shall be found engaged in the fur-seal fishery contrary to the prohibitions provided for in articles and 7, or in violation of any re- gulation made under article 8, shall, together with her apparel, equipment, 5 ' I a b6 ORAL AUdUMENT and contents, be liable to forfeiture and connscation, and the n.asterand crew of such vessel, and every person belonging thereto, shall be liable to lino and imprisonment. Articlk X SKIZURE FOR DREACll OF PROVISIONAL REGULATIONS. TRIAL OF OKFENCKS Every such ollendinp vessel or person may be seized and detained by Hie naval or othiM- duly conunissioned officers of any of the High Contracting Parlips, but they shall he handed over as soon as practicable to the aulhon- ties of 'ihe nation to which they respectively h.-loii^;, who shall alone have .ju- risdiction to try the offence and impose the penalties lor the some. The wit- nesses and prools necessary to establish the offence shall also be sent with them and the court adjudicating upon the case may order such portion of the fines imposed or of the proceeds of the condemned vessel to be applied in payment of the expenses occasioned thereby. Articlk XI RATIFICATION. COMMENCEMKNT AND DURATION OF CONVENTION Tills convention shall be ratified and the ratifications shall be exchanged at in six months from the date thereof or sooner if possible. It shall take effect on such day as shall be agreed upon by the High Contracting I'artics, and shall remain in force until the expiration of six months after the date of the rep(Ml of the Commission of experts to be appointed under Article 1 ; but its duration may be extended by consent. Akticlk XII ACCESSION OF OTHER POWERS The High Contracting Parties agree to invite the accession of the other powers to the present convention. In oilier words, his scheme was to obtain this report of a mixed commission of experts, which, in his view, would presumahly make it possible for the two (iovernments to enter into a final convention upon the subject which would accomplish the desired object : that if they should not be able to come to an agreement upon receiving that report, then the points of difference should be referred to the arbitration of an impartial (iovernment. The scheme had, there- fore, two aspects. First, to settle the differences by treaty; failing that, by a reference to arbitration. That is what Sir Julian Paun- cefote expresses in one part of his letter : The draft, of course, contemplates the conclusion of a further Convention, after full examination of the Report of the Mixed Commission. It also makes provision for the ultimate settlement by arbitration of any difference which the Report of the Commission may still fail to adjust, whereby the important ;. element of finality is secured; and in order to give to the proposed arrange- ment the widest international basis, the draft provided that the other Powers shall be invited to accede to it. There is one feature of the proposal of Sir Julian upon which OK MH. r.vnTEn. •7 sterand crew e to line uiid )KFENCKS ained by the I Coiitraclinin ) the aulhori- lone have Ju- ne. The wit- be sent with portion of tlie be apiilied in ION I exchanged at It shall take ctin^' Parties, ter the date of Arlich' I ; but I of the other :"l of H mixed imaltly make I convention object ; that ion receiving ilerred to the B had, there- reaty; failing Julian Palm- ier Convention, It also makes ifference wliich y the important posed arrange- e other Powers upon w hich I musi make an oliHcrvalion; anlume of tlie Appendix of the American (^ase. The Marquis of Snlisburi/ to Sir Julian /'nunrrfali'. I Left at the Uejiurtrnoiit of State on Jmio 5 liy Sir .Tiiliaii Pamiooloto.] No. 106.] Foreign Office, May iid, IH'Jii. Sin : I received in due couim' your dispatch No. 0, of Ihe 2:td Jannaiy, inclosing copy of .Mi'. Blaine's note of the 22d of that month, in answer lo the protest made on behalf of Her Majesty's fiovernment on the 12th October last, against the seizure ol Canadian vessels by the United Stales revenue-cutt(!r Rws/f in Uehring Sea. The impoiiance of the subject necessitated a reference to thi; (ioveriiiiient of Canada, whose reply has only recently reached Her .Majesty's (iovernment. The negotiations which have taken place between .Mr. Hly le and yourself attord strong reason to hope that the dilTiculties atteiidiiiL: iliis question are in a fair way towaids an adjustment which will be satisfactory to i)oth Co- vernmeuls. I think it riglit, however, to place on record, as briefly as possible, the views of Her .Majesty's Covc'inmenl on the principal argument brought forward on behalf of the United States, Mr. Blaine's note defends the acts complained of by Her .Majesty's Coverti- ment on the following grounds : 1) That " the Canadian vessels arrested and detained in the Behiing Sea were engaged in a pursuit that is in itself contra bonos tnores — a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States ". 2) That the llsheries had been the in the undisturbed possession and under the exclusive control of Hussia from theirdiscovery until the cession of .Vlaskato the United Slates in 18C7, and that from this dalr onwards until 1H80 they had also remained in the undisturbed possession of the United States (iovernment. 3) That it is a fact now held beyond denial or doubt thai the taking of seals in the open sea rapidly leads lo the extinction of the species, and that there- fore nations not possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea. ■I- m 68 OH A I, ah(;i:mi:.nt Mr. niaiiie riirthei at'Kii(*!< Mint the law of (lie hph and the liliorty wliicli it courts (Id not jiolil'y ads uliiili an* iiiiiiioral in llionisclvrs, iukI wliiili iii*;- vilalily ItMid lo n-Mulls ayamsl lln' inlfiosls ami afiaiiisl llic wcHari' of mnn- kiiul; and ho procends In justify lli(* fnicihle reflisluncn of tlin t'liitrd States (jovoriiiiieiit liy IIk; iit'CCHsily of tlcfctxIiiiK in't only tlioir own traiiitional and lonK-<'^lalilis*li«iI ri^ilits, lull also tin' rif^lils ol (.'immI morals and of f^ood yov- erniiMMit tlii; woild ovei'. 111! dfclurt's lliut while the United Stal(\>t »ill not withhold from any nation the privileges which they demanded for themselves, Mlieii Alaska was part of the Hnssian i;ni(iiie, they are not dis|P'isid to (!xeri;ise in the pos- sessions aii|niied from llnssia any less jiower or /inthoiity tlian they were willing to concede to the Imperial (iovernnient of llnssia when its sovereij^nty extended over them, lie I'laims from friendly nations a re(Of,'nition of the same i igiits and privileges on the lands and in the waters of Alaska which tiie same friendly nations always concedeil to the Kin|iirc of Uussia. With regard lo the (irst of these arguments, namely, that the seizure of the Canadian vessels in tin' Ih^hiing's Sea was Jnstilled hy tin^ fad that they were " engaged in a pursuit that is in itself coiU/vi bonos iiuircs — a pursuit which of necessity involves a serious and jiermanent injury to the rights of the (iovornment and peojde of the Unilecl Stales ", it is ohvious that two questions are involved : lirsl, whether the pursuit and killing of I'ur-stsals in certain parts ol the open sea is, from the point of view of iiilernational mo- rality, an offense mntia hotins mores; and secondly, whether, if such he the case, this fact justifies the seizure on the high seas and suiise(juent conlisca- tion in time of peace of the private vessels of a friendly nation. it is un axiom of international maritime law that such action is only admissihle in the case ol piracy or in pursuancf; of special international agreement. This principle has been universally admitted hy jurists, and was very distinctly laid down hy i'resident Tyler in his special message to Congress, dated the 'i'th February, 1843, when, after acknowledging the right lo detain and search a vessel on suspicion of piracy, he goes on to say : " With this single exception, no nation has, in time of peace, any authority lo detain the ships of anolhei' upon the high seas, on any pretext whatever, outside the territorial jut isdiction ". Now, the jiursuit of seals in the open sea, under whatever circumstances, has never hitherto lieen considered as piracy hy any civilized state. Nor, even if the Tnited States had gone so far as to make tin; killing of fur-seals piracy by their municipal law, would this have justified them in punishing offenses against such law commmitled by any persons other than their own citizens outside the territorial jurisdiction of the United States. 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 is exeri-.ised only by special international agreement, and no one government has been allowed that general control of morals in this respect which Mr. Itlaine claims on behalf of the United States in regard to seal-hunting. Hut Her Majesty's (iovernment must question whether this pursuit can of itself be regarded as contra boiios mores, unless and until, for special reasons, it has been agreed by international arrangement to forbid it. Fur-seals are indisputably animals ferx nalitrx, and these have universally been regarded by jurists as ren nulliits until they are caught; no person, therefore, can have property in them until he has actually reduced llieni into possession by capture. It requires something more than a mere declaration that the Government or citizens of the United Slates, or even other countries interested in the seal mm. mmmmim. MMl>, I'lty wliicli it il wliirli iiic- t'.itc of rniin- I'hiloil Sintes itilitioiial and of gooil gov- ild from imy when Ala>tkii s(> in till* |>o»- in llifv «(M0 .» soveiei^Mly Miilioti of llio Maska which issia. ,he soi/iiif of 'act lliat Uu-y 8 — a puisuil Iho lif^iits of ions thai two i)f fur-seals in riuitional mo- f such bo the uenl conlisca- iction is only inlernntional y jurists, and al nifissa^'o to DwlodpinK the ues on lo say : any aulliorily text whalevor, circumstances, \d state. Nor, np of fur-soals I in punishing han their own zed world has the vessels of greement, and morals in this OS in regard to pursuit can of pecial reasons. Fur-seals are been regarded efore, can have possession by he Government sled in the seal OF MH. CAHTKIl. M trade, are losers by a certain course of proceeding, lo render tliat coume an innnora! one. Ilor Vlajosty's (lovernmenl would deeply regret Iha* the pursuit of fur-sealH on the high seas by Uritish vessels shoiihl invtdvo oven (ini slijfhtest injury lo the people of the llniled Stales. If the case bo proved, lliey will be ready lo eonsid(!i' what measuios can bo properly taken for the remedy of such injury, but they would he unable on thai ground to depart from a principle on which free conimen'o on the high seas depends. The second argument advanced by Mr. Blaine is Ihat the " fur-seal fisheries of llohring Sea had been exclusively controlled by the (iovernnuuit of Kussia, without inlerferoiicc and without (juoslion, from their original dis- covery until llie cession of Alaska lo the United States iu 1807, " and that " from INt')7 to I88(i the [lussossion, in which Hussia had been undistuibed, was enjoyed by the I'nitod Stales (iovernment also without interruption or intrusion from any source ". I will deal with these two periods separately. First, as to Ihe illcged exclusive monopoly of Hussia. After Russia, at the instance of the lUissian American Fur Company, claimed in \H->\ the pursuits of commerce, whaling, ami llshing from IJoring Straits lo the llfly- ilrst degree of noitli latitude, and nol only prohibited all foreign vessels fiom landing on the coasts and islands of the above waters, but also prevented them from approaching within 100 miles thereof, Mr. Quincy .Vdams wrote as follows to the United Slates Minister in Hussia : The Ihiitud States can admit no jiarl of these cl.iiiur'. ; thi'h" riglit of niivii,'atioii iinil lishiiit; is iiorfi'cl, :ind lias l)pen in constant ('xi^rcise from tlic oarliost times tlM'()nj,'hi)iit tiic wlidlc extent of tlio Soiilliern Ocean, suliject only to the ordinary excep- tions and exclusions of the territorial jurisdictions. That the right of llshing thus asserted included Ihe right of killing fur- hearing animals is shown by the case of the llniled States brig Loriot. Thai vessel proceeded to the waters over which Hussia claimed exclusive juris- dicliim for the purpose of hunting the sea oiler, the killing of which is now prohibited by the United Slates statutes applicable lo the fur-seal, and was forced lo abandon her voyage and leave the waters in question by an armed vessel of the Hussian Navy. Mr. Forsylhe, writing on the case to the Ame- rican Minister at St. Petersburg on the 4lh of May, 1837, said : It is a violatiiiM of the rijjhts of the citizens of the United States immcmorially exercised and secured to them .as well l)y the law of nations as by the stipulations of Ihe lii'st article of the convention of 1824, lo fish in those seas, and lo resort to the coast for the prosecution of their lawful conniicrce upon points not already occupied. From the speech of Mr. Sumner, when introducing the question of the purchase of Alaska to Congress, it is equally clear that the United Slates Government did not regard themselves as purchasing a monopoly. Having dealt with fur-bearing animals, he went on lo treat of fisheries, and after alluding lo the presence of different species of whales in the vicinity of the Aleutians, said : " No sea is now mare clausum; all of these may be pursued by a ship under any Hag, except directly on the coast or within its territorial limit. " 1 now come to the statement that from 1867 to 1886 the possession was enjoyed by the United Slates with no interruption ami no intrusion from any source, iler Majesty's (iovernmeut can not but think that Mr. Blaine has been misinformed as to the history of the operations in Behring Sea during that period. The instances recorded in inclosure 1 in this dispatch are sufllcient to ORAL ARGUMENT nu M:¥ m 0' prove from official United States sources that from 1867 to 1880 British vessels were engagod at intervals in the fur-seal fisheries witli tiie cognizance of the United States GoveF-nnient. I will here l-y way of example quote but one. In 1872 Collector Plielps reported the fitting out of expeditions in Aus- tralia i.!'d Victoria for the purpose of taking seals in Heliring Sea, while passing to and from their rookeries on Si. Paul and St. George Isiands, and recommended lliat a sleam cutter should be sent to llie region of Unimak Pass and tlie islands of SI. Paul and St. (ieorge. Mr. Secretary Boutwell informed him, in reply, liiat he did not consider it expedient to send a cutter to interfere with the operations of foreigners, and staled : " In addition, I do not see that the United States would have the jurisdiction or j)owi;i' t) drive off parties going up there for thai purpose, unless they ni"le such attempt within a marine league of the shtue ". Before leaving this part of Mr. Blaine's argument, I would allude to his remark that " vessels from other nations passing from time to time ihrongh Behring Sea to the Arctic Ocean in pursuit of whales have always abstained from taking part in the capture of seals ", which he iiolds to be proof of the recognition of rights held and exercised first by Russia and then by the United States. Even if the facts are as stated, it is not remarkable that vessels pushing on for the short season in which whales ran be captured in the Arctic Ocean, and being fitted ispecially for the whak; fisheries, neglected to carry boats and hunters for 'ur-seais er to engage in an (Mitirely different pursuit. The whalers, moreover, pass throu.'h Behring Sea for the fishing grounds in tlie Arctic Oc 'an in April and May as soon as the ice breaks up, while the great bulk of tl e seals do not reach the Piibylof Islanils till June, leaving again l>y the lim ■ the closing of the ice compels the v.halers to return. The slal"mei)t that it is " a fact now held beyoni wiiich, by the recognized law of nations, are now free to all itie world. It is from no disrespect that I refrain from roplyin;^ specifically to the subsidiary (luestions and argUiUents put forwari by Mr. Blaine. Till the views of the two (iovernments as to the obli^'ations attaching, on grounds either of morality or necessit; , to the United States Government in this matter', have been brought into closer harmony, such a course would appear needlessly to extend a controversy which Her Majesty's (ioveriiment are anxious to keep within reasonable limits. The negotiations now being carried on at Washington prove the readiness of Her .Majesty's Government to consider whether anv special international agreement is necessary for the protection of the fur-sealing industry. In its absence they are unable to admit that the case put forv ;ird on beliidf of the United States affords any sufficient justification for the forcible action already taken by them against peacefible subjects of Her Majesty engaged in awful operations on the hijjh seas. i*^- OF MR. GARTER. 7t tSO British vessels ,iio cognizance of , lie quote but one. pcdilious in Aus- ■liring Sea, while or;.'e Isuinils, and ref,'ion of Unimak did not consider ons of foreigners, itates woald have I for Iha'- purpose, le shore ". luld ollude to his le to time ihniugh ! always abstained to be proof of the and then by the at vessels pushing the Arctic Ocean, ted to carry boats nt pursuit. he fishin;.' grounds oaks up, white the ; till June, leaving s to return. nial or doubt that extinction "' would on the other side, be examined by a not necessary that iig were stopped in ssees of the United iiore extraordinary ly become a niono- is sufficient ground itions of any share )1' nations, are now specilically to the aine. Till ilie views II grounds either of n this matter, have ppear needlessly to ire anxious to keep prove the readiness ;pecial international baling industry. In urv.ud on belialf of the forcible action Majesty engaged in " The Pre" ' nt, " says Mr. Blaine, " is persuaded that all friendly nations will concede to the United States the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always eon- ceded to the Empire of Russia. " Her Majesty's Government have no difficulty in making such a concession. In -strict accord with the views which, previous to the present controversy, were consistently and successfully maintained by the United States, they have, whenever occasion arose, opposed all claims to exclusive privileges in the non-territorial waters of Behring Sea. The rights they have deman *' \n"l87r)' Mr. Mclntyrc, Treasury agent, described how " licforo proceeding to harsli measures " he had warned the captain of tlie Cygnet, who was shooting sea s in /.a- padiiee Bay, and stated that iho ca|.taiii ajipeared astonished that ho was hreaking the law. (l)iUo, March lb, 187:;, No. i:!0, p. 12't.) In 1880' the fur-seal trade of the Brhisli Columbia coast wis of great importance. Seven vessels were then engaged in the fishery, of which the greater number were, in 1886 and 1887 ; izcd by the United Slates Government in Behniig Sea. In 1884 Daiiie: and Alexander McLean, hotli British subjects, took the American schooner .San Hiegn to Behring Sea, and were so successful that they returned there in 18 •■'., from Victoria, with the .War)/ /i//en and the Ffl!ro«n7e. • There is the answer of the Government of Great Britain, an'J the oi.ly answer contained in this tliplomatic correspondence, to the fnlf statement of the grounds of rifild relied upon by the United States as contained in the note of Mr Blaine; and, although I am nol going into the discussion now of the merits, it is proper for me to call the attention of the learned arbitrators to the manner in which the positions were met. Lord Salisbury states very briefly and fairly enough, the grounds upon which Mr. Blaine placed his contention. He puts them thus : wmfj.-^ ,«i#*iiS»i*«S-»«fcj*.*S»W*«»*«tf»KSffl»i &*iiliaS£SBWSiy OM hb 72 OUAI. ARCLMENT ■1' r ^" Mr. Blaine's note defends the acts complained of by Her Majesty's Govern- ment on the following grounds : 1. ermanent injury to the rights of tie (lovernment and people of tlie United Slates. " 2. That the lisheries had been in the undisturbed possession and under the •jxclusive control of Russia from their dis('overy until the cession of Alaska to the United States in 1867, and that from this date onwards until 18S6 they had also remained in the undisturbed i)ossession of the United States Government. 3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing the territory upon which seals can increase tlieir numbers by natural growth should refrain from the slaughter of them ill the open sea. .Mr. Blaine further argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which ine- vitably tend to results op;ainst the interests and against the welfare of man- kind; and he proceeds to ji>:'ify tlic forcible resistance of the United States Government by the necessity of defending not only tlieir own traditional and long eslablislu'd rights, but also the rights of good morals and of good government tlie world over. There is perhaps a touch of irony in this observation of Lord Salisbury imputing to the Inited Stales llie assumption of a juris- diction for the protection of good Government and good morals the world over. That imputation was hardly juslilied by anything which Mr. iilaine had said. His ground was that the pursuit of pelagic lisliing was contra houos morcs^ in other words it was essentialy and under fundamental principles an indefensible wrong. Thai, of itself, did not give the tJovernment of tJie I'nited Slates the right to interfere. Mr. lUaine made no such pndention ; but wlien il was at the same time injurioj.s to a most valuable and lawful interest of the United States, thai circumstance gave, as he insisted, the authority to the Iniled Stales (Jovernment to inter- fere and prevent the doing of an injury to its own interests by acts which were in themselves indefensible wrongs. Lord Salisbury, further considering the point pul forth by Mr. [Maine Ihat pelagic sealing was an olTencc contra bonos mores, savs Hull two questions are involved here: lirst, whether the pursuit and killing of fur-seals !u certain parts of the open sea are. from the point of view of internali^ al morality, an otfence contra bonos mores. This is extremely well stated. •• Second, whether, if sucli be the case, this faci j'istifies the sei/tu'c on the high seas and siibse([ueiit confiscation in time of peace, of Ihe private vessels of a friendly nation. " Nothing could be belter stated liian ilial. Tlie position taken by Mr. lilaine did raise those two questions exactly. First, whe- is^i^n-- nn OF MH. CARTEH. n ssty's Govern- Behring Sea — a pursuit the rights of md under the 1 of Alaska to 111 488(5 they Jniied Statt.'S the taking of ;ies, and that can increase ^htcr of Ihem )erty which it id which ine- ll'are ot man- United States adilional and and of good ion of Lord 1 of a juris- 1 morals the >y anything ' pursuit of ortls ii was inilcfonsible f tlio Tnitod prctontion ; ahiahlc and gave, as he nt to inter- •esls by acts ul forth by bonos mores, V the pursuit re, from the ■ontra bonos JMslifies the in time of sition taken First, whe- ther from the point of view of international morality pelagic sealing is right or wrong. Second, whether if, from the point of view of international morality it is declurcil to be wrong, that cir- cumstance furnishes to the United States a ground upon whicli in time of peace to arrest and carry in for condemnation a vessel en- gaged in the practice. What is Lord Salisb"»y's argument? First it is this: Sup- pose it to be contra bonos mores; suppose it to be against interna- tional morality: suppose it io be an indefensible wrong; that does not give the I'nited Stales any right to ari-est a vessel engaged in the practice. Why? liecau^•e it is in time of peace. That is to say, the proposition of Lord Salisbuiy is that in time of peace no mailer what injury an indefensible act of wrong by the ci'izens of a foreign power may inllict ujion the United Stales (ioverrnient, or its citizens, no vessel engaged in the inlliclion of that wrohgcanbe arrested and detained when she is upon the high seas. I om not going to argue that now; but 1 will say liial he is able to moke a pretty happy use of the argument ad hominem; and he cites from an American President, John Tyler, a pretty square recognilitm of that doctrine in a special message communicated to Congress in reference, as 1 assume from the dale, to negotiations concerning the suppi ession of the slave trade. I am now reading from page 208 of the Appendix. President Tyler says : " With this single excej)tion (that of piracy.) no nation has in lime of peace any authority to detain the ships of another on the high seas on any pretext whatever outside of the territorial juris- diction. President Tyler was an American in high oflicial position; but his authority is not binding iiere, aniess it expresses the truth; and this position taken by him we shall show at another stage in the debate to be wh'jlly without foundation. Lord Salisbury nuu.1 at the lime have failed Io bear in mind the circumstance that there had been for a tentury on the slalule books of his own nation laws against " hovering ' and laws in relation to fjuarantine, prescrib- ing rules and regulations purporting Io bind foreign vessels as well as national vessels, a violation of which upon the high seas, according to the Hritieh statutes, would be followed by arrest and condemnation. There are many other irslances we shall here- after note in the argmnenl. This is ;i very brief suggestion in answer to Mr. Blaine and it does not seem to be very satisfactory. I might add lurther upon the merits of the case, that the ground is thai even if pelagic scaling were covdra bonns mores it is not piracy. It does not amount Io piracy. If it did, any (Jiovernment might suppress it, and suppress it upon the high seas : but because it does not amount to piracy they cannot. Why can any Govern- ■74 ORAL ARGUMENT i mi »'U' ment upon the higli seas suppress piracy? Because it is wrong; because it is an indefensible wrong and a wrong against all na- tions; and so great a wrong that by a tacit agreement every power IS permitted to take measures to suppress it. 1 cannot perceive the force of the argument whicli is based upon a supposed distinc- tion between wrongs. If wrongs against all nations may be sup- pressed by all nations, one wrong may bo suppressed as well as another, at least when the commission of the wrong happens to work especial injury against the interest of a particular slate, that state may suppress it. LordSalisbiiry then in coming to the other branch of the argu- ment of Mr. Blaine, as he slates it, namely that the practice is cmitra bonos mores, makes his answer very brief, and it amounts to this : No, it is not contra bonos mores, l)ecause nations lidve never afireed that it was' contra bonos mores. Tiiey have aftreed tiiut piracy was surii ; they iiave agreed, in part, that the slave trade was sucli ; but tliey nevn- hr:,'e agreed that pehigic sealing was contra bonos mores ! Is it true that whether a thing is right or wrong, whether a thing is ronfra bono;, mores, or not, depends upon the circumstance whether nations have come together and agreed that it is so? I had supposed that the distinctions between right and wrong were deeper by far than that. I '.lad supposed loo that neither piracy, nor the slave trade, would over have been by agreement between nations regarded a^ wrong, instead of right, unless by their essen- tial nature before the agreement was rea Jied, they were so. In that exceedingly hrief manner Lord Salisbury disposes of the long contention of Mr. Blaine which condemned pelagic sealing on the ground that it was contra 'bonos mores and destructive of a race of animals useful and essential to the I'nitod States, and useful to mankind. I cannot help thinking that he rather avo ded, than answered, the argument. He could not have answered the argu- ment without dealing with the nature of that pursuit — its real, essential nature — inquiring whether it was, in fact, actually dostruclivo of a useful race of animals, and if so. whether it could in any form he defended. I am not to anticipate the argument whicli 1 shall hereafter make to this Tribunal; hut 1 cannot help thinking that the position of Mr. Blaine was rather evaded than answered bv Lord Salishury. lie much prefers to display his power hy dealing with the argument which rests upon the preten- tions of Biissia; and therefore he comes to consider that part of the argument of Mr. Blaine. He says : The second arfriimonl advanced by Mr. Blaine is that Ihe " fur-seal fisheries of Behring Sea had been exclusively controlled by the Government of Russia, -S(C;.-.«"*sise6;'-. ■ irlMiiiiiiMMiiim m^ OF MR. CARTER. 18 IS wrong; inst all na- very power ot porceive sed distinc- ay be sup- as well as happens to [• slate, that Df the argu- praclice is it amounts r afireed that rii ; they have e agreed that whether a rcumstance t it is so? wrong were Iher piracy, 3nl between theii essen- ere so. disposes ol" lagic sealing Lructive of a s, and useful vo ded, than ed the argu- , — its real, act. actually ther it could lie argument cannot help evaded than ) display his 1 the preteri- at part of the ir-poul fislseries ;nen(. of Russia, without interference and without question, from their original discovery until the cession of Alaska to tlie United Slates in 1867 ", and Ihat •' from 1807 to t880 the possession, in wliich Russia had been undisturbed, was enjoyed by Ihe United Slates Government also witii out interruption orinlru- sion from any source. " The arbitrators w'\\\ perceive tliat the contention of Mr. IJlaino as thus stated, did not rest upon any assertion that Russia had an original right to defend its exclusive enjoyment of the fur-seal fisheries in Behring Sea by exorcising jurisdiction over that sea. It was not an assertion of that character. It was an assertion that, in point of fact, she had enjoyed that rigiit without iiiteri-up- tion, and without interference by other Govei-nments during the whole period of her occupation, and that the United States since it had ac(|uired the territory of Alaska from Russia hud in a similar manner enjoyed, as a matter of fact, without intorruplion from othei- nations, the exclusive right of fur-seal fishery in Be- ring Sea. Lord Salisbury's answer does not meet that aspect of the ques- tion at all. His answer to it is this : He says that when in 1821 Russia by the celebrated Ukase of that year attempted to assert a sovereign jurisdiction over Bering Sea and to exclude the vessels of all other nations from an area of one hundred miles around tlu; islands, foreign Governments did not assent to it, but protest- ed against it, and that, among others, the United Stales protested against it; and he cites the language of Mr. John nuiucy Adams wiio was then the Americun Secretary of Slate, jji-okisting against those pre' itions of Russia. It will be remembered that Lord Salisbury 1. I at an earlier stage of the controversy referred to this same mattt , and had endeavored to maintain that the United States Goveii.mcnt had no authority to do the acts they had done in Behring Sea, and that they had by their own acts shown that they had no such authority, because they had protested against similar pretentions when made by Russia. But I must again re- mark that the argument of Mr. Blaiuf; did not put forward the verbal pretentions of the Russian Government; but it put forward the matter of fact of the exclusive possession of these fisheries hy Russia, and by the United States. Lord Salisbury towards the conclusion of his note further observes : Her Majesty's Government do not deny that if all sealing were stopped in Behring Sea except on the islands in possession of the lessees of Ihe United States, the seal may increase and multiply at an even more extraordinary rate Ihan at presenl, and the seal fisliery on the islnnd may become a mono- poly of increasing value; but lliey can not admit Ihal this issufficieni groniid to justify the United Slates in forcibly depriving other nations of a..y share in I It OllAI, ARGUMENT & this industry in waters wliich, by the recognized law of nations, are now free to all the world. That is anolher implied assertion that where the waters of the sea are Tree to Ihc world — that is, on the high seas anywhere — all nations, and the citizens oi" all nations, are Tree to do as they please : a proposition which seems to me to stand refuted npon its mere assertion. Imt which 1 shall liave occasion hereafter to deal with more particularly. What I have now said describes the position taken by Great Britain in answer to the note of Mr. Ulaine, which fully set forth npon its merits the attitude of \W United States in reference to pelagic sealing : and my general observation is that while the note is drawn up with exceeding ingenuity and ability, it rather avoids than answers the argument to which it was addressed. In the course of this correspondence Mr. Blaine already had befor." him the |)rop(»sition of Sir .lulian Pamicefole for a mixed Commission, which also carriod with it a proposal for an interim [icriod of protection, procieting seals during the months of May and .lune, October, Novei.Uv., and December. Senator Morgan. Mr. Carter, are you referring now to the draft convention which you have just been reading from? Mr. Carter. That is what I refer to : the draft convention, lie still bad that before liiTU. and had not answered it. While he bad it before him be receives further protest from Sir Julian Pauncefote in reference to seizure. This is found on page 212 of the Appendix lo our Case. Sir Julian Pauncefote to Mr. Ulaine. Washington, May ■>:i, 1890. Snt : I havo tlie honor lo inform you that u statement having appeared in the newspapers lo Ihe etfect Ihul Ihc United Slates revenue cruisers hav(! received orders lo proceeil lo Hehring Sea for the purpose of preventing the exercise of Ihe seal lisherv hy foreign vessels in non-territorial waters, and Ihat statemeni having been conllrnied yesterday hy yon, I am instructed by Ihe Marquis of Salisbury lo slate to you that a formal protest by Her Majesty's (lovernnienl against any such interference with British vessels will be foward- cd to you wilhoul delay. I have_ etc., Julian Pauncefote. Now, then the situation which confronted xMr. Blaine was this : President Harrison had felt obliged to take methods of suppress- ing pelagi<; sealing in the Bering Sea, the negotiations having failed. Those measures for its suppression caused seizures and the soiaures causeJ protests. There were suggestions contained in 1 are now free iters of the ly where — tlo as they B(l upon its fter to deal n by Great ly set forth eferonco to L while the ^% it rather [•essed. ilroady had or a mixed an interim iths of May now to the n? convention. While he Sir Julian n page 212 May -23, t890. g appeared in cruisers have iroventing Ihe il waters, ami instructed by (•Her Majesty's ivill be I'oward- OTE. ne was this : of suppress- ions having sures and the ;ontained in OF MR. CAUTKU. 77 the correspondence wliich I liave icad of renewed efforts for an accommodation; but nothing had been determined upon. The only proposition which was up for consideration was that which accompanied the note of Sir Julian I'aunceibte to Mr. Blaine which 1 have abrcady mentioned. The question was what should be done with that. The situation before Mr. Blaine was this. Two years, and more than two years, had elapsed since the negotiations were ori- ginally entered upon which at hrsi promised to be so speedily suc- cessful. The failure of that negotiation was a disappointment, a great disappointment to Ihe Government of the United States. It had felt obliged to proceed with the enforcement of measures designed to suppress pelagic sealing, and now another proposition for negotiation came in with another measure of interim protec- tion. And what was that? I presume Mr. Blaine naturally expected that any measure of inlerim protection would be as broad and effective as the one which had been originally proposed by the British Government for final and permanent protection. lie had expected that; but now he had this proposition from Sir Julian Pauncefote; and what was it? To appoint a mixed com- mission of experts who « . e to report at the e.vpiration of a period of two years! Upon their report being made to the two Govern- ments, an effort was to be 'made to come to an agreement upon it through the means of a convention which would take, no one knows how long. The correspondence which had already occur- red had stretched through years. If the effort to come to an agree- ment by convention should fail, the suggestion was of a reference to the arbitration of some impartial Government. And how long that would lake, of course, nobody could say. At all events the proposition carried with it the probability that measures designed to settle the controversy and to preserve the fur-seals from extei'mination would be in progress of adjustment for a period of at least five to ten years; and in the meantime the only suggestion for the interim protection of the fur-seals was a protection of them during the months of May and June, October, November and December, leaving Ihem exposed to capture and extermination during the most important months of June, July, August and September. Well, in his view — it seems to me a not unreasonable one — this proposition carried with it a certainty almost that the whole race would be exterminated before the end of the negotiation was reached ; and when Mr. Blaine came to answer it,he answered it with some measure of impatience and irritation. That answer is con- tained in his letter of May 29, 1890, as it is found on page 212. It is too long to read, and it is not sufficiently important to be read; but I must summarize the contents as well as I may. 1- mi 78 on A I, AUG II ME. NT It contains llio rccilal of the various steps vviiicli up to that time had been taken in the (>lTort to brinf,-^ the two countries to an agree- ment. Then on p. 215 it deals with the proposition of Sir Julian : ■■;■.( When you, Mr. Minister, arrived in this country a year ago, tiiere scoined the best prospect for ;i sotllenient of this question, but tiie llussiiui minister and the American Secretary of State iiavc had the experiences of Mr. Phcljjs and llie Hussian ambassador in London repeated. In our early inlorvicws there seemed to be as ready a disposition on your part to come to a reasonable and I'riendly adjustment as there has always been on our part to olTer one. You will not forget an interview between yourself, the Itussiaii minister, ami myself, in which tin; lines for a close season in the Behring Sea laid down by Lord Salisbury weie almost exactly repeated by yourself, and were inscribed on maps which were before us, a coi)y of which is in the possession of the Hussian minister, and a copy also in my possession, A prompt adjustment seemed practicable — an adjustment which 1 am sure would have been honor- able to all Ihe Cdunlries inleresled. No obstacles weie presented on the American side of the question. No insistance was made upon the Hehrin^' Sea as mare clamum; no objection was inter[)osed to the entrance of British ships at all times on all commercial errands through all the waters of Ihe Behriuf,' Sea. But oui' nefjolialions, as in London, were suddenly broken oil' for many weeks by the interposition of Caiuida. WIkjh correspondence was resumed on the last day of April, yuu made an offer for a mixed commission of experts to decide the questions at issue. Your proposition is that pelajiic sealing should be prohibited in the Behring Sea durinj; the months of May, June, October, November, and December, and that there should be no pndiibition during; the months of July, Aufiust, and September. Your proposition involved Ihe condition that British vessels should he allowed to kill seals within 10 miles of the coast of the l^ribilof Islands. Lord Salisbury's proposition of 1888 was that during' the same months, f o ■ which the 10-mile privile^'e is now demanded, no llrilish vessel hunting seuis should come nearer to the IMibilof Islands than the 47th paral- lel of north latitude, about COO miles. The o|)en season which you thus select (or killing' is the one when Ihe areas around the breeding; islands are most crowded with seals, and especially crowded with female seals ^'oin;; forth to secure food for the hundreds of Ihonsands of their younj.' of which they have recently been delivered. The destruction of the females which, according to expert testimony would be 95 per cent of all which the sealing vessels mi^ht readily capture, would inllicl deadly loss '.ipon the rookeries. The destruct'.on of the females would be followed by the destruction of their youn^' on the islands, and the herds would be diminished the next year by this wholesale slauf.'hter of Ihe producing; females and their offspring. The ton-mile limit would fiive the marauders the vantajie ground for Uill- iny the seals that are in the water by tens of thousands searchinf; for food. The opportunity, under cover of fog and night, for stealing silently upon the islands and slaughtering the seals within a mile or even less of the keeper's residence would largely increase the aggregate destruction. Under such con- ditions the British vessels could evenly divide with the United Slates, within the three-miie limit of its own shores and upon the islands themselves, the whole advantage of the seal fisheries. The respect which the sealing vessels would pay tt the ten-mile limit would be the same that wolves pay to a Hock of sheep so placed that no shepherd can guard them. This arrangement according to your proposal, was to continue for three months of ach year, OF M\\. CAHTEH. ) Ihat lime ) an agroe- sir Julian : licre scoiupil iiiii niiiiisler )f Mr. Piiclps ly iiitorvU'WS a reasonable lo odor one. iiinister, and laid down by M'e inscribed Rssion of the t adjustment been bonor- ■nled on Ihe I Helirin^i Sea Brilisb sbips I ho Rehrinf,' oil' lor many was resumed on ol' experts 1 Uie Belii'ing icemlier, and , Au!,'ust, and •itisli vessels f (be Pribilof n^' the same Itritisii vessel le 4'tli paral- one wben the md especially hundreds of livered. 'I'he y would be 9j would inllicl les would be e herds would ;he producing,' ound for kill- liiufl for food, ntly upon Ibe f the keeper's der such con- States, within lemselves, the ;ealin>,' vessels pay to a Hock arran;,'ement of :ach year, the best months in the season for depredations upon Ibe seal herd. No course was left to the United States or to Russia but to reject the proposition. The propositions made by Lord Salisbury in 1888 and the propositions made by Her Majsty's Minister in M dshington in 1800, are in sifiuillcaut contrast. The circumstances are the same, the conditions are the same, the ri>,'hts of the United States are the same, in both years. The position of KuRland has changed, because the wishes of Canada have demanded the change. The result then with which the United States is expected lo 1)0 content is that her rights within the Hebring Sea and on the islands thereof are not absolute, but are to be determined by one of Her Majesty's provinces. This proposition was received by Mr. Blaine wilh some consider- able degree of impatience, as will be observed, lie seemed to feci that he was confronted at all times with Ihe objection of Ca- nada, and that the objection of Canada was in all instances perfect- ly effective to prevent the approach lo any accomodation. For my own part I see no objection whatever why (Ireat Britain, be- fore she should come to an arrangement of this sort, should con- sult Canada ; because Canada was the province which was more immediately interested. I see no reason for complaint upon that score. It is a little different, however, when we come to consider the circumstance, that originally, when the proposition made by Mr. Phelps was provisionally accepted by Lord Salisbury, it was not stated that it would be dependent upon the wishes of Canada, or dependent upon the result of investigations made after Canada had been consulted. Had that been stated at that time it would have prevented the raising of expectations only to be disappointed. These observations, of course, do not relate to the merits. They are designed to explain the progress of the negotiations and the sentiments of the negotiators from time to time ; and, at this point of time it is very observable that there was on the part of Mr. Blaine a feeling of great impatience, as if he had been in some manner wronged. Senator Morgan. Mr. Carter, what is the date of that letter, if you please, that you are reading from Mr. Jilaine? Mr. Carter. May 29, 1890. Senator Morgan. If it would not disturb you I would like to call your attention to page 461 of vol. 3 of the Appendix to the British Case, to a note from the Marquis of Salisbury to Sir Julian Pauncefote. Its number is 332. Mr. Carter. I have it. Senator Morgan. It is very short, and for the purpose of cal- ling your attention to the particular language of it I will read it ; Sin : I have received your dispatch of the 29lh ultimo covering copy of a note in which you submit to Mr. Blaine the draft convention which has been approved by the Government of Canada for the settlement of the Behring's Sea fisheries question, as well as a copy of the draft convention itself. The terms of your note are approved by Her Majesty's Government. ^Hita 80 OHAL AU(;iJMKNT it 1^ I' Tho point as il seems lo me lliere, is llial lliere is a wide (iisliiu'tion helweon the grounds taken hy Sir Julian Panncelote in his note in which lie ropresenis the llrilisii (lovernment. and whieh is approved, and the terms of the draft convention. Mr. Carter. Is it llie suggestion of the h>arned Arhitrator that tlio forms of the draft convention proposed bySir.lnlian Paunce- fole liad received the approval of Her .Majesty's C.overnment? Senator Morgan. No, sir. It had received llie approval of the Canadian (lovernment, as was expressed lo Lord Salisbury ; hut the terms of tho note from Sir Julian Panncefote to the United States (lovernment had been approved by IheUritish (lovernment. Sir John Thompson. That note referred to there was the note of Sir Julian Pauiicefote laying it before Mr. lllaine. Senator Morgan. Yes: I refer to the discrepancy between Unit note and the draft convention. Sir Charles Russell, 'i'here is no discrepancy. Senator Morgan. We differ about that. Mr. Carter. 1 had assumed that the note from Sir Julian Paun- cefoto to Mr. IJlaine containing the draft convention proposed by him was agreeable to the (lovernment of ('anada, and that, be- cause it wasagreable to the (lovernment of Canada, it was approved by the (lovernmen tof Tier Majesty. Sir Chp.ries Russell May 1 point out, with the permission of my frien J, that this is a matter in which my learned friend and I will not differ. Tho Covernment of Canada was controlled by the Imperial Government of Her ^hijesty. The (Government of Canada approved of the convention and tho (lovernment of Ilor imperial Majesty is the only (lovernment which diplomatically could convey the matter to the United States (lovernment. Senator Morgan. I comprehend that. Sir Charles Russell. And indeed il was necessary to convey, and only necessary lo convey, the fact that the Imperial Govern- ment had approved it. Senator Morgan. 1 certainly comprehend that ; but if in this cautious note of Lord Salisbury he says the Government of Canada has approved of a draff convention and the Government of Her Majesty has approved Sir Julian's nolo to Mr. Blaine, and then if there is a material and wide discrepancy between the arguments and the statements in Sir Julian Pauncofole's note and those found in the draft convention, why I suppose that it was intended that while the note of Sir Julian with its doctrines and stalementswas approv- ed by the Government of Her Majesty, the draft convention had been approved and consented to only by Canada. Of course, that was enough for the British Government. Mr. Carter. There may be more in this than 1 have per- ■— f^«'Ar--*l«VW J»'^1'»^ir ..-i K&Jj-"'.- l.r-i--r '• «■ mtmm)^ OF MM. r,.UlTF,n. Ht is ii wiilt^ I'auiiccrotc uuciil, unil on. ilralor tliut an Piiuncu- rimont? ipproval of lisbnry; hut llie linilod ovcrnmcnt. re was (he ohvecn that ulian Paun- )roposefl hy (1 tliat, be- as approved permission friend and I oUod hy llie it of Canada ier Imperial onid convey • to convey, rial Govern- iit if in tliis it of Canada nent of Her , and then if i arguments lose found in ;d that while was approv- ivention had coiu'se, that 1 have per- ceived; hul I have understood the nolo of Lord Saiishury lo Sir Julian Paunrofoici as designed to approve of his conduct in trans- milling his nole with tin' draft conventioii to Ihe CovernmenI of Ihe I'niled Slates. Sir Charles Russell. Ouile so. Mr. Carter. And, in Ihiis approving of his conduci in Irans- milting in Ihe way he did Ihal draft convention lo Ihe (lovernmenl of th(! llniliMl Stales, it amonnis to an approval of Uie convention itself. Senator Morgan. \M il is an approval hased on Ihe consent of Canada. Mr. Carter. Thai is undouhledly one of Ihe reasons — per- haps Ihe only reason. lUil it was an approval which had heen mov- ed, which was hased upon, if you ph'ase, the approval of Ihe Government of Canada. I suppose it is ([uile manifest all along here that the appi-oval of the GovernmenI of Great Brilain to any measures of i-eslriclion upon pelagic sealing were depcndenl upon Ihe wishes of the Government of Canada. That is the fad which made Mr. Blaine somewhat impatient. I do not argue now whelher he was properly or im|)roperly impatieni ; but it was the fact. The President. NN'e have only before us in this mailer Ihe British Government. We are not lo enter into a consideration of the motives upon which the British GovernmenI decided whatcourse to adopt. NVhelher the Canadian (iovernment has an inlluence upoi the decisions of Ihe Imperial (iovernment is a matter of inte- rior considei-ation hy the British (iovernment itself; hut we have as a party only Ihe British (iovernment. Mr. Carter. That is quite true. I am not giving ariy mate- rial consequence to the consideration whether the Government of Great Britain awaited the action of the Government of Canada, or made its own action dependent u|)on Ihe (iovernment of Ca- nada, except in this point of view, s(» far as it explains the temper, the disposition of Ihe corresponding diplomats, and Ihe grounds and reasons why one side may have thought that they had a complaint against Ihe other for delay. It is pertinent in that point of view, and in that point of view^ alone, as I conceive. Senator Morgan. 1 beg leave lo say this in defence of my position : Mr Carter read with great emphasis this clause from the letter of Sir Julian to Mr. Blaine on page 455 : It ii.is been .-Klmilteil from the ('omnienccnipnt that Ihe sole object of the negotiation is Ihe preservation of Ihe fur-seal species for the benelit of man- kind, and that no considerations of advantage to any particular nation or ot benefit lo any private interest should enter into the question. And then the learned counsel was proceeding lo argue that 6 IMAGE EV; TEST TARGI 1.0 I.I 1.25 la II Hi us KS V2 ^ /a 'e. M "m e\ ^M 0-;} Photographic Sciences Corporation W im ii Mii » .in |i! jiij i j^ i | f ^ i j I M ■ «■ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 2.8 I.I m If II IM 1.8 1.25 1.4 1.6 6" . ^ i'hotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 1^ iV ^s-^ ^^ a^ ■ % 4^ ^ ^iiiuii>H;.toi;TtWi 82 OR.' L ARGUMENT under the terms of this convention the fur-soals in Bering Sea re- sorting to the Pribilof Islands were exposed during the most dan- gerous period of tlie year to extermination hy the Canadian seal- ers. He, as I understood, inferred from that that Her Majesty's Government had changed its groimd upon the question of the duty of both Governments to preserve the seal herds from extermination. Mr. Carter. I beg pardon; I did not intend to so argue. I see no evidence here that the Government of Great Britain at any time changed, at least, its avowed ground, that the prime object of these negotiations was to preserve the fur-seal from extinction. That ground as avowed by them at lirst continued to be avowed until the last. Whcthei the measures which tiieyactually suggested, or the measures which they were willing to accede to, were such as we might expect from a Government which took that ground, and made that avowal, is a matter about which different opinions may be entertained; but that they ever changed their ground in reference to the necessity of protecting the fur-seal 1 do not think. It is very far from any intention of mine to mak(i any such assertion. I -nakc the contrary assertion, in reference to the avowed ground of the British Government. Mr. Blaine, after this letter from which I have read extracts, of May 29lh, addresses another letter to Sir Julian Paunccfote before he had received a reply, which was this : Mr. Blaine lo Sir Julian Pauncefote. DhPARTMRNT Ol- SIATK, Washinfjlon, June ?, IHOO. My Dear Sin Julian : 1 have had a prolonged interview wilh the President on the matters upon wiiicli we are endeavoring to come to an ngreementtoucliing the fur-seal i[ueslion. Tlie President expresses llie opinion that an arbitra- tion can not be concluded in time for tiiis season. Arbitration is of little value unless conducted with tlie most careful deliberation. What the President most anxiously desires to know is whether Lord Salisbury, in order to pro- mote a friendly solution af the queslion, will make for a single season the regulation which in 1888 lie otfered to make permanent. The Priisident regards that as the step which will lead most certainly and most jiromptly to a friendly agreement between the two {Governments. I am, etc.. Tamf.s G. Blaine. The two Governments now appear to have come to a decided difference respecting the measures which they were prepared to assent to providing foi- an interim preservation of the seal. We have a communication here from Sir .lulian that Lord Salisbury thinks that the measure proposed in 1888, and provisionally accept- ed by him. was too extreme a measure. He is not prepared to OF MR. CARTER. 83 5 Sea re- lost daii- lian seal- Majosly's ' llie duty nination. le. I see any time t of these n. That until the id, or the eh as we indniade 5 may be [•eforence it is very rtion. I ground of tracts, of te before ?, moo. resident, on nt touching an iirbilra- lilllo value ! President Icr to pro- season the President romptly to iNii;. a decided epared to eal. We Salisbury ly accept- spared to assent to it, and suggests a further difliculty, namely, that, in the absence of legislation by Parliament, the (iovernment would not be enabled to enforce it upon British vessels. In answer to this suggestion of an inability to execute such a restrictive provision without an act of Parliament, I will say, without reading the correspondence, that Mr. Blaine suggested thai the United States Government would be satislied if, without an act of Parliament, the Government of Great Britain would issue Si pro- clamation forbidding pelagic sealing, or requesting vessels to abstain from it. That proposal was answered by Sir Julian on the 27th of June. I read from page 223 of the lirst volume of the Amer- ican Appendix : Sir Julian Pauncefole to Mr. Blaine. V/AsmsoTOS, June g7, t a 90. Sir : I did not fail to transmit to the Marquis of Salisbury a copy of your note of the Hlh instaut, in which, with reference to his lordship's statement that Rritish legishation would be necessary to enable tier Majesty's Govern- ment to exclude British vessels from any portion of the high seas " even for an hour ", you informed me, by desire of the President, that the United Stales Government would be satisfied " if Lord Salisbury would by public pro- clamation simply request that vessels sailing under the British Hag should abstain from entering the Behring Sea during the present season ". I have now the honor to inform you that I have been instructed by Lord Salishury to state to you in reply that the President's request presents con- stitutional (lifliculties which would preclude Her Majesty's Government from acceding to it, except as part of a general scheme for the settlement of the Behring Sea controversy, and on certain conditions which would justify the assumption by Her Majesty's Government of the grave responsibility involved in the proposal. .4 Those conditions are : I. That the two Governments agree forthwith lo refer to arbitration the question of the legality of the action of the United States Government in seiz- ing or otherwise interfering with Britisii vessels engaged in the Behring Sea, outside of territorial waters, during the years 188fi, 1887, and 1889. II. That, pending the award, all interference with Britisii sealing vessels shall absolutely cease. HI. That the United States Government, if the award should be adverse to them on the question of legal right, will compensate British subjects for the losses which they may sustain by reason of their compliance with the British proclamation. Such are the three conditions on which it is indispensable, in the view of Her Majesty's Government, that the issue of the proposed proclamation should be based. As regards the compensation claimed liy Her Majesty's Government for the losses and injuries sustained by British subjects by reason of the action of the United Stales Government against Brilish sealing vessels in the Behring Sea during the years 1886, 1887, and 1889, I have already informed Lord Salisbury of your assurance that the United States Government would not let that claim stand in the way of an amicable adjustment of the controversy, and I trust , i ""^i'«^*p»*'!r' 84 ORAL ARGUMENT that the reply which, by direction of Lord Salisbury, I iiave now the honor to return to the President's inquiry, may facilitate liie attainment of that object lor which '■.e have so long and so earnestly labored. I have, etc., : '= Julian Pauncefote. The President. If you have come to the end of a branch of this subject, 1 think it would be well to interrupt here. [The Tribunal there upon took a recess.] On reassembling The President said : Mr. Carter, will you resume your argument? Mr. Carter. I had just read Sir Julian Pauncefote's note to Mr. Blaine, in which he conveys the terms under which Lord Salisbury was prepared to accede to Mr. Blaine's request that the British Government would, by proclamation, request an abstention from pelagic scaling in Bering Sea during the then coming sea- son, or present season. The Arbitrators will observe that Lord Salisbury stated that there were grave constitutional difficulties in the way of taking the course suggested, and that the British Gov- ernment could not adopt such a course as that unless there were a very complete justification for it : that it created a responsibility which the Government was not prepared to assume unless there was very great occasion for it, but intimated that if three condi- tions were complied with, they would, notwithstanding, make that request. Those conditions were that the two (iovernmonts should forthwith agree to submit to arbitration the question of the lega- lity of the action of the I'nited States Government in making the seizures; that, pending the award, all interference with British ves- sels by the United States should cease; and third, that the United States Government, if the award should be adverse to it on the question of legal right, would compensate British subjects fortheir losses. The learned Arbitrators will observe — of course, they cannot fail to observe — throughout this correspondence the play of di- plomatic skill and ability on the part of each side in dealing with the other, and it is observable in these views of Lord Salisbury. He found that the Government of the United States were extrem- ly anxious to prevent pelagic sealing in Bering Sea during the coming season : that, unable to get anything better, they would content themselves with a request from the British Government by proclamation that such sealing should not be engaged in. Find- ing that they were so anxious upon that score, he thought that by acceding to their views in that particular he might gain certain advantages : first, absolute non-interference with British sealing vessels during the pendency of the negotiation, and second, a re- ference to arbitration, which should include not only a determina- ■■ OF MR. CAllTER. 8') tion upon the questions of right, but also a determination upon questions of alleged damages sustained by British vessels. The Arbitrators will here perceive the hrst direct suggestion of the scheme of an Arbitration upon the questions of right. That is the principal feature of this letter. It is true that an arbitration had been at an anterior period suggested by Sir Julian Pauncefotc ; but it was to be the arbitration of a friendly Government, in case the two Governments should not lind themselves able to agree upon the question of res not unless I will X to the The Arbitrators will remember that I read I.ord Salisbury's reply and briefly commented upon it, pointing out, what appeared upon the face of it. that it was rather an attempt to avoitl the ground taken by Mr. Ulaine than to really answer it; and to pass over the ground of Mr. Hlaine and again rely upon the attitude taken by the United Stales in 1822, protesting against the pretensions of Russia to an exceptional ^marine jurisdiction in IJering Sea. The dispo- sition of Lord Salisbnry, I remarked, seemed to me to be to draw away the discussion from the substantial ground taken by Mr. Blaine, that of inherent and essential right, and to engage him in a dis- cussion in reference to the validity of Russian pretensions in Behring Sea. If I were permitted, and if it were worth while to criticise the position of Mr. Blaine as a controversiondist, or a negotiator, I should say that he committed an unwise step in responding to the suggestion of Lord Salisbury and sulfering himself to be drawn away from the impregnablealtitudc on which he stood — impregn- able, as it seems to m<> — and which Lord Salisbury had under- taken, as I think, to avoid — and pass over to that region of con- troversy to which Lord Salisbury had invited him. That was an imprudent step, as it seems to me. The wiser course would have been to have said to Lord Salisbury : " I do not think you have answered the positions which I have taken ; and the positions which I have taken are the grounds, the main grounds, upon which the United States bases its contentions; and I shall expect a further and more satisfactory answer to them if it can be made". But he did accept the invitation of Lord Salisbury, and he took up this question of the Russian assumptions of authority in Behring Sea and wrote a long letter in relation to it. That letter, again, is too long to be read, and not of sufficient importance to be read. The only importance that it has in the aspect of the controversy which I am now presenting to the Tri- bunal is that it exhibits a stage in the discussion of this question of Russian pretensions in Behring Sea. It is the answer on the part of the United States Government, and the first answer that the United States (lovernment ever made, to the argument of Great Britain that Russia had originally made pretensions similar to this then made by the United States; that these pretensions when made by Russia in 182t were resisted by the United States Government upon the same grounds upon which Great Britain was now resist- ing the pretensions of the United States. That was the argument of Lord Salisbury, and Mr. Blaine makes an answer to it here. I must attempt to summarize that answer of Mr. Blaine, without reading the letter, which is very long, and which I assume, of course, the learned Arbitrators will themselves carefully read. .ik nfmm m OIIAL ARGUMENT I musi ondoavor lo picscnl a summary of it, and it is this: Mr. HIaiiio's arj^umenl is llial long prior to llio your 1821, liussia luul, by prior discovery and jjrior oconpalion, f,'ain('d an ahst Into title to all the territory surrounding Herinj; Sea; llial u|)on the Siberian coast she had no rival whatever, and had complete pos- session ollhe whole lerrilory IVom Herinj^ Straits down lo the i7th parallel of latitude, or in thai vicinity : that she had pushed her discoveries on the American coast of Berinj^ Sea also, ami had a recognized '.itle to all the territory I'rom Hering Straits down to the 8illi degree ol' lalilude, at leasl, and that she had discovered, and asserted her lille lo, Ihe whole chain of Ihe Aleutian Islands : that all thai was long prior lo the year 1821, indeed prior lo 1800 : that in Ihe year 1821 she issued her celebrated ukase, the principal point of which was Ihal she asserted an exclusive right to all Ihe products of this whole region, lo all Ihe trade ollhe whole region, and lor Ihe purpose of protecting Ihal product and thai trade, a right to exclude the vessels of all nations from a bell 100 miles from the shore along all Ihe islands and coasts of Ihe sea. That was her assump- tion by Ihe ukase. The governmenls of (Jreat Britain and the United Stales objected to those claims; but the principal ground of their objection was not to any assumption of authority over the sea, nor lo any assumption of authority over the shores of Boring Sea, as lo which the whole world admitted thai the title of Russia was exclusive, but lo the extension of lier assertions of exclusive dominion on the coasi from about the parallel of ol North latitude down lo Ihe parallel of .'id. The point of Mr. Blaine was that the objoclionable feature of the ukase in the eyes of both Great Britain and Ihe United States was Ihe assumption of exclusive territorial sovereignty over this coast, from the southern part of Alaska doMu overa longrange of coast which had been familiarly called in commerce and by merchants and navigators who were engaged in trade there the "Northwest Coast". It was the theatre of the riva! enterprises of several dilferent nations in commerce. Mer- chants in the I'nited States had a large trade up there. Great Britain had a large trade there, and Russia had a very considerable trade un Ibere. The President. And Spain [also. Mr. Carter. And Spain also had some, although I do not know how much it amounted to comercially. She had made pretensions, of course, as we all know, which were subsequently transferred to the United States. The President. On account of the possession of San Francisco, on that coast. Mr. Carter. Ah, lower down, of course, Spain had great pretensions; but San Francisco, I think, was rather below what iHi IB OF MM. CAHTKH. 80 was commonly Icrmod llic Nortliwcsl Coast. Spain claimed to paroilol (iO, I know; hut I am speaiiing of llic cxlciit of commerce wliicli slie actually had u|) liiere. i do not think it was very con- siderahle. llor claims extended up there, that we know. 1 am s|)eaking- of the fact that this Northwest (^oast, so called, was the theatre of a very extensive trade, principally carried on by three groat powers, (Ireat liritain, the United States and Russia. \\v. Blaine's argument was that I he principal point of contention between these (lovernmenls was the sovereignly assumed by Rus- sia over that coast, which, if successlully nminlained by her, would exclude both (Ireal Hritain and the United Stales from the benelit of that trade. According lo Mr. Hlaine — this was his argument — that con- tention was settled belween tiie United Slates and Hussia by the treaty of 182 1, and between (ireat Britain and Russia by the treaty of lS:2o, and that the ukas(^ of 1821 , except so far as it was modilied and displaced by tliis treaty, cqntinued to stand. That was his main proposition. To a certain extent the pretensions asserted by the ukase of 1821 were yielded and surrendered by those two trea- lies, and so far as they were not thus yielded and surrendered, they continued lo stand. Now, according to his argument, Ihe only particulars in which those preiensions were surrendered were these : a boundary line was established — a southern boundary lo the pretet /lions of Russia, and that was 5i",i0'. The territory in dispute, which was between GO" and ."it" was thus divided, you may say, in two. Iji",iO' was taken as the dividing line. Down to that dividing line, by this treaty, the sovereignly of Russia was recognized as complete and perfect; and south of that boundary, the sovereignty of Russia was excluded by her agreement not to make any more settlements south of it. In the course of this whole discussion, no pretension was over made by either Great Rritain, or the United States, to any trade in these Bering Sea regions, or to any interests in these re- gions at all. Great Britain and the United States made no assertions of any interest in those regions of Bering Sea at all. They had none at that time. Everything embraced by those regions was in the un- disputed possession of Russia. There was no desire to interfere with it, and, consequently — this was the conclusion of Mr. Blaine. — The President. You speak of the coasts only. Mr. Carter. Well, 1 speak of the sea as well. I am giving Mr. Blaine's argument now. Lord Hannen. It is not yours — you do not adopt it? Mr. Carter. I am not ??oi« adopting it. W'hotherl will adopt it or not, and how far I adopt it, will be the subject of debate. But ■M 1^ ,y ^ >^. W ORAI, AinJl'MKNT this is his argumoni, IIihI all llio |nvl(«iisions of Hussiu. vviiolhor upon llic s(>a, or upon llic laiul, North of Ihi' (10 Ih (logrcc, and including all Iho islands in Hcring Soa and peninsula of Alfiska which conslilulcd tho Soulliorn honndary of Bering Soa, wcro rccogni/ed as llio undispnlcd possessions of Hussia, and no con- lenlion was niado in rcfcrcnco to Ihoni. Sir Charles Russell. North of .'ii'.iO' you moan? Mr. Carter. No : north of (iO", I mean, at the time when the protests were made, and the negotiations were enteriMl into. Kverything North of 60" was undisputahly the properly of Hussia, and no contention was made on the part of either (iovernment in reference to it. The )egion of controversy was south of tliat, bo- Iweon that, and latitude ."J!''. The whole controversy was in refer- ence to that region, and the adjiislmant a(rectart ofupowei' like (ireat Hritain — and I can easily see lliat there arc very serious diflicnlti(^s attending such a settlement — another power linding that tiic (iovernnieni with which it is dealing is gov(M'ned in its own action hy the wislies, real or sup- j)osed, of one of its dependencies, will naturally conn^ In feel souKMincasiness : and that was the feeling in which iMr. IMaine had written his letter ; and he had again referred lo the period when Mr. IMielps communicated his original proposition to Lord Salis- bury, which was promptly accepted by Lord Salisbury under circumstances which led the (lovernnient of the I'nited States to suppose that the final determination of the controversy 'v>' •. at hand. lie hud referred to the fact that the negotiations werr st interrupted, then suspended for a long time, then linally reliied from in consequence of the action ol' the Canadian (iovernn^"nt. Lord Salisbury undertook to defend the Hritish Government > m those chai'ges. Thi^ ' ' ne reply of Mr. Blaine designed to show lluil tliat defence was not a suftieient one, anil that his origiupl Cu.n- plaints oi delays were well founded. On the second of August, 1892 (page 242 of the American Appendix), Lord Salisbury having succeeded in drawing Mr. Blaine into a controversy respecting these Russian pretensions and the effect of the Treaties of 1824 and 183S respecting them, and having received Mr. Blaine's argument upon that point, replies to it at great length. The reply commences on page 242 and extends with its notes to page 263. Of course it is wholly impracticable to read it here, and all I can do, and all it is necessary to do, is lo brielly summarize it. Lord Salisbury's argument is this : That the publication of the ukase of 1821 was the first notice which Great Britain had ever received, or other Governments had ever received, of any pretensions by Russia over the waters of Bering Sea and over the Northwest Coast. He states that the pretentions of Russia made by that ukase were to a sovereignty over the waters from Bering Straits down to latitude 51° on the American shore, and down to latitude 47° on the Asiatic shore, thus asserting a sovereignty, not only over Bering Sea, but over a large part of the ocean south of that sea : and he insists that the principal point of the objection of Great Britain to this pretention on the part of i; 111 'm„:> BB^^JAM^fAl^ n ORAL AIU'.UMENT Russia was, not the matter of sovereignty on the Northwest Coast which Mr. Hlaino coiicoivef' "tto he, hut the assertion of maritime dominion over the higli seas. He insists lliat that was the prin- cipal point comphiinedof hy (ireat Britain ; and he says that that was squarely aliandoned hy the treaty concluded hetween Russia and (ireat Rrilain in 182ri; that the principal assertion was one of complete dominion over the sea, and that that assertion was abau- doned hy the express terms of the treaty. I now read from the first article of the treaty between (Ireat Britain and Russia of 1825, which is found on page 39 of the first volume of the Appendix to the American Case, foi Ihe purpose of showing what the argument of I.ord Salisbury was. That first article is : I. If, is agreed that the respective subjects of the high Contracting Parties shall not be troubled or molested, in any part of the ocean, coninioniy called the Pacific Ocean, either in navigating the same, in fishing therein, or in land- ing at such parts of the coast as shall not have been already Occupied, in order to trade with the natives, under the restrictions and conditions snecified in the following articles. Mr. Blaine's argument had been that the words « Pacific Ocean » as used in that first article of the treaty did not include Bering Sea, but only the ocean south of that sea. I.ord Salisbury's argument now is that Pacific Ocean did include the whole of Bering Sea; and the controversy between those two diplomatists, now became substantially confined to that particular point, wheth- er Ihe term « Pacific Ocean », as used in the first arlicle of the treaty between Russia and (Ireat Britain, and the similar term of the first article of the treaty between Bussia and the United States, was really intended to embrace Bering Sea, or only the waters south of that sea. This debate upon the question of the preten- tions of Bussia came finally to concentrate itself very much upon that particular point, and Lord Salisbury's argument was a very full one, designed to show that Pacific Ocean was intended to include the whole of Bering Sea. The President. Mr. Carter, I must call your attention to this fact, that the original text is a French text and that what you read was the English version, which is not of an official character. There is a certain ditTerence which I remark in the French text and in the English text, or in the English version which you have read . Mr. Carter. When I come to the discussion of the ques- tion. — The President. You do not discuss that at present? Mr. Carter. No. When I come to discuss the merits of the question I will say something as to the text of the treaty which we must accept in our discussions. At this point, unless the learned / ' OF MR. CARTER. 93 President thinks there is something particularly material about it, I will not discuss it. The President. Your translation boars only on the ocean commonly called the Pacific Ocean. I think that would be quite material . Mr. Carter. Those considerations have relation to the merits of the controversy: and when I come to discuss the merits I will say something- upon that point; but 1 will not discuss it now. 1 wish now to speak of this letter of Mr. Blaine to Lord Salisbury on the 17th of December, 1890. This letter will be found at page 263. He re-iterated his positions there in a very long letter, a letter w^ritten, I venture to say it will be admitted, with very great ability, sustaining his contention that the term Pacific Ocean did not include the Bering Sea. At this time Mr. Blaine, gradually becoming more and more interested in this discussion, and giving, I suppose, more and more attention to it, became more and more convinced of the solidity of the ground upon which in^ MOod, and seemed to be almost ready to surrender every other ground in the case and put the issue of the controversy upon this, lie was not very cautious in that particular, and allowed an expression to fall from liim which the quickness of my learned friend Sir Charles Busseli seized upon the other day. It is dated the 17th of December, 1890, and in it he says this : — Sir Charles Russell. Are you going to read this at length? Mr. Carter. Xo, 1 am not. Sir Charles Russell. If so, it willbe necessary to read the others. Mr. Carter. Oh no : far from it. I am only going to read a few lines. This is the passage to which I designed to call the attention of the arbitrators : If Great Britain can maintain her position tiiat tiic Belirin^' Sea at llio lime of tho trealios with Russia of 1824 and 182o was included in the facific Ocean, the (Jovernment of tlie United States lias no well-^ioun'led complaint a^ninst her. If, on the other hand, this (iovernnient can prove beyond all doubt that the Behring Sea, at the date of the treaties, was understood by the three sig- natory Powers to be a separate body of water, and was not included in Ihe phrase " Pacific Ocean ", then the American Case against Great Britain is complete and undeniable. The extraordinary thing in Ihut observation and what I desire to call to the attention of tiie learned arbitrators is this: Mr. Blainein hisfir?t note toSir Julian "auncefole stating the position which the United States took in reference to tliis controversy and the grounds upon which it based its claims to prohibit pelagic sealing in Bering Sea, dismissed from consideration altogether this question of Bussian authority and Russian pretentions, or any right derived by the United States from Russian authority or Rus- - -KiKimmtmmBarm ■■■• «n fm 94 ORAL ARGUMENT sian pretensions. He then proccded to put the controversy upon grounds of essential right, setting forth the lawful and useful char- acter of the industry carried on by the I'nited Slates upon the Pribilof Islands — an industry useful to themselves and useful to mankind — setting forth the destructive nature of pelagic sealing as carried on by these Canadian sealers and its indefensibility upon moral grounds, that it was an indisputable wrong, and, being inju- rious to property interests of the United States, that the latter power was clothed with full authority to prevent the commission of that wrong. Those were his grounds. Here, somewhat incautiously, he has abandoned that view, and chooses to say now that if the Government of (ireat Britain can maintain her position in respect to the meaning of " Pacific Ocean ", then the United States has no well grounded complaint n gainst her. Senator Morgan. Mr. (barter, if you will allow me the inter- rupt you just there, I think Mr. Blaine deserves some vindication. Mr. Carter. I am going to vindicate him. Senator Morgan. I hope you will. On the 29th day of April i890, preceding by several months this letter from which you have been reading, written by Mr. Blaine, the British Government, through Sir Julian Pauncefote,sent to Mr. Blaineadraftconvention, from which I will read the preamble : The Govornment of Russia and of the United States having' represented to the Government of Great Britain the urf,'cncy of re^'ulatinj; by means of an international agreement the fur-seal (isliery in Rehring sea, tiie sea of Okholsk and the adjoining waters for the preservation of the fur-seal species in tlie North Pacific Ocean. Making a distinction there between Bering Sea and the Sea of Okholsk and North Pacilic Ocean. I will not read the whole preamble, but it seems to me that Mr. Blaine had at the time he wrote the letter upon which vou are commenting an acknowledg- ment from the British Government that there was a distinction between the Bering Sea and the Sea of Okhotsk and the North Pacific Ocean; but I think he was not quite out of the line of reason, fo say the least of it, in claiming that there was a distinc- tion whicli liad been maintained perhaps for many years. Mr. Carter. It may bo that the British Government had ac- knowledged the difference of the character in question ; but I hardly think the Government of Great Britain intended to acknowledge any such difference as that. 1 do not so interpret it. But, in the next place, whether they ucknowlogded it or not, 1 Ifiink it was— if I may be so bold as to offer a criticism— I ought, perhaps, not to — but neverfheless it seems to me it was — a piece of imprudence in Mr. Blaine to abandon the ground which he at first assumed, in con- sequence of the confidence Avhich he felt in the new position he was I m. '^WtTf=-i'»~»- •^^. ■- ■■■ OF Mil. CARTER. 98 taking upon this question of tho pretensions l.o Bering Sea. He might have argued the question of the rights of the United States as acquired from Russia. It would not have affected that argu- ment at all. There was no occasion whatever for an apparent abandonment of the ground which he had already taken in his first letter to Sir Julian Pauncefote. Singularly enough, however, in this very same letter, towards the end of it, he again re-asserts his original ground. Near the close of the letter, in the lastparagraph on page 286, Mr. Blaine thus writes : Tho repeated assertions tliat the novernmentof the United States demands that the nelirinp Sea be pronounced mare claitsiim, arc without foundation. The (iovernnienl lias never claimedt it and never desired it. It expressly disavows it. At the same time the Unitet 1 do not conceive it to be applicable to the present case. Hero is a valuable fishery, and a large and, if pro[ierly managed, permanent indus- try, the projierty of the nations on whoso shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the Joint remonstrance of all the cotui- trics interested, to destroy this business by llio indiscriminate slaughter and extermi- nation of the animals in fiuestion, in the oiien neighboring sea, during tho period of gestation, when the connuon dictates of humanity ought to ])i'otcct them, were there no interest at all involved. And it is suggested that wo arc prevented from defending ourselves against such dejiredalions because the sea at a certain distance from iho coast is free. The same line of argument would take under its protection jjiracy and the slave trade when i)rosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the ojien sea with impuiuty, and against which every sea is mare rlausum ; and the right of self-defense as to person and property ])revails there as fully as elsewhere. If the fish upon Canadian coasts eould be destroyed hy scattering poison in the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, !)<■ held defenseless in siu:h a case ? Yet liiat process would he no more destructive, inhuman, and wanton than this. If precedents are wanting for a ilefeuse so necessary and so proper, it is because precedents for such a courso of co.^.duet are likewise unknown. Tlie hesl interna- tional law has arisen from precedents that have been established when the just occasion for them arose, undeterred by tho disciission of abstract and inadequate rules. 1 have the honor to he, sir, with the highest consideration, your obedient gervant, jAMii:s G. Blaine. 90 OR A I, AHCUMEM The learned arbitrators will lliore perceive that he comes Lack to his original ground and puts the case upon the question of pro- perty, and of essential right, and of a right to defend properly inte- rests on the high seas against acts which are themselves contra t)onos 7nores. I am obliged to admit that these two altitudes taken by Mr. DIaine in this letter, one at the beginning and .the other at the end, are inconsistent and self-contradictory : butit is, neverthe- less, true that, inasmuch as the last attitude is taken at the end of his letter, the position of the United States as liereteforc assumed was not by this letter, as it never had been by any other, substan- tially, or in any respect indeed, changed. Lord Salisbury had the last word on this subject. He rejoined to Mr. Blaine in a letter dated February 21, 1891 . Sir Charles Russell. That is comparatively short. Mr. Carter. Comparatively short, but not short enough for me to read. Nor is it necessary for me to describe it, or to say anything of it, except that it was a reiteration of his original posi- tions and a respectful statement that the argument of Mr. Blaine on the other side was not satisfactory; closing, I believe, as is usual, with these polite gentlemen, with some conciliatory observations, and also containing some discussion of the points of the proposed ( arbitration; for the arbitrators will remember that while this dis- \ ^'^ssion upon the merits of the controversy was goin^on, anot her / discussion was also going on between the parties, pari passu, con- cernin g the features of the arbitration , towards which the corres- l)ondence and the negotiation were gradually tending. There was a good deal of correspondence after this, but it contains very little — nothing — which impoxts into tl." controversy any special new feature which it is important for me to bring to your attention at this time. The debate was exhausted; the disputants had stated their views, and they had nol approached an agreement at all upon any of the questions in controversy. The necessity for some mode of adjustment in order to prevent a very lamentable result became more and more apparent to each party, and approaches were gra- dually made to a final agreement for an arbitration. Much discus- sion took place in reference to the points which should be sub- mitted; but Ihere was not very great difficulty experienced in coming to an agreement. The remaining discussion, therefore, embraces the controversy concerning the shape which the arbi- tration should take, and all it is necessary tor me to say in refe- rence to it is this : As Hnally agreed upon it still presented its ori- ginal aspect of a scheme with two allernative features, one contemplating thai there should be a mixed commission of experts which should a;ke inquiries in relation to seal life and pelagic sealing, and as to what regulations were necessary to preserve the I. mm OF Ml\. CARTEH. 97 seals, and report upon that; that if the two Govornmenls upon receiving that report should find themselves ahle to agree upon a scheme of regulations, the arhitration would hccome unnecessary. That was not expressed, but it was an implied feature all along. It was borrowed from the original suggestion of Sir Julian Paunce- fote. But if there was a failure to agree, then, of course, it would be necessary that the arbitration should proceed, and when it did proceed, that it should embrace all the questions in relation to the original pretensions of Russia, and to the rights which the United States may have derived from Russia grounded upon those preten- sions; next the question of the property interest of the United States in the seals, and in the industry which was maintained in respect to that animal upon the Prihilof Islands ; and then, if the determination of the Tribunal upon those questions which are properly called by my learned friend Sir Charles " questions of right ", should leave the subject in a condition where the concur- rence of Great Rritain was necessary to the establishment of regu- lations for the preservation of the fur-soal, the arbitrators should consider what regulations were necessary. The President. In that contingency? Mr. Carter. In that '• contingency ", yes; and only in that contingency. The duty of the arbilrators is most plainly specified here as to what they are to do, and the times at which they are to do it. The question of what evidence they are to act upon, and when that is to be submilled, has already been argued; and I shall say nothing further about it. When the parties were brought to a substantial agreement upon these points, the agreement for the arbitration, and the agreement for the mixed commission of experts, were drawn up s(>paratcly and signed separately on the 18th of December, 1891 ; and, in accordance with the design of settling the matters by a con- vention upon the basis of a joint report the Commissioners were at once appointed on the part of (ireat Britain and proceeded to Bering Sea for the purpose of making their investigations long before the treaty was finally drawn up and signed; but in February, J 18!)2, these two agreements, thus far kept separate, were finally '- consolidated in the treaty, and the treaty was signed and ratified. That > "hides the second stage of the controversy. k;;;*- In a word or two, allow me to recapitulate Ihe principal features of this second stiige of the controversy. It opens with the acts of the administraliim of President Harrison; proclamations designed to prohibit pelagic sealing, instructions to cruisers to enforce the law; seizure of British vessels and consequent renewal of protests by Great Britain. Next the consideration by President Harrison and his Secretary of State, Mr. Blaine, of the grounds upon which 7 fe: 98 OHAL ARGUMENT ;l the United States defended Iheir action in making these seizures upon Boring Sea, and the setting forth of those grounds in their full extent. The next step in this stage was a renewal of the negotiation for a settlement between the two Goveniments, the proposal of Sir Julian of a draft convention, which contained the germ of a qualilied and limited arbitration; next the answer of Lord Salis- bury to the arguments upon which Mr. Blaine had defended the conduct of the United States, and an attempt by him, as I have styled it, — perhaps that will not be agreed to by my learned friends on the other side — but an attempt, as I think, to avoid a discussion of the grounds upon which Mr. Blaine had under- taken to defend the position of the United States. Next the introduction of this matter of Bussian pretensions in Boring Sea; the Ukase of 1821 ; the treaties of 1824 and 1823; and this ques- tion of what was meant by, and how much was included by, the phrase " Pacific Ocean ", as it is used in both those treaties. Next the carrying forward of the proposal for arbitration and the re- duction of the suggestion of a joint commission to distinct points, and, linally an agreement in reference to them; and at last a con- solidation of the agreements into the treaty, creating this arbitra- tion; the signing of that treaty, and its ratification by both powers. There is still another stage, but it is a very short one and briefly told. That is the third stage of the controversy, and has reference to the action of the two Governments unfler the treaty. The Commissioners were appointed upon both sides. They visit- ed Bering Sea. They examined the conditiim of the rookeries there. They made such investigations as they chose to make, and were able to make, concerning seal life. They, or some of them — the British Commissioners, at least — went over to the sealing islands of Bussia on the Asiatic shore, and they examined the business of pelagic sealing, its nature, its tendencies, etc. The two sots of Commissioners came together; they attempted to agree ; but they found themselves unable to agree, except in one or two limited conclusions. They were agreed in this, that the numbers of the herd of seals which made its home upon the Pribilof Islands were in the course of dimi- nution ; that such diminution was cumulative, that is, it was increasing, and that it was in consequence of the hand of man. There they stopped, and were unable to go any further. What the causes were which prevented them from being able to go any further in harmony are to my mind very plain, but this is not the moment at which I should state that. It is enough for the present purpose to say that upon all other matters they disagreed, and therefore the hopes of the two Governments of being able J Sfi^.. OF MR. CARTER. m to unite in a convonlion iu respect to regulations based upon an agreeing joint report of these commissioners, were disappointed, and it became necessary fliat Ihc arbitrators sliould be called together. This disappointment of hopes occurred a considerable period before the time when any step was requisite in reference to the arbitration by either party, liut this failure having occur- red the arbitrators were appointed. The parties proceeded to frame their Cases and their Counter Cases and to exchange them, and to prepare their arguments for submission to the Tribunal; and here we are. That, ge.'ilemen, is, as well as I can state it, a concise account, although it has been a rather h)ng one, of the various stages of this controversy, and I hope it will have tended in some degree to enable you to view the C(mtroversy in the lights in which, from time to time, the parties themselves have viewed it; and, therefore, to understand the precise questions which arise, the precise difficulties which are presented, belter than you otherwise would. 1 shall, therefore, proceed with the next step in the ar- gument of the Case. Senator Morgan. Mr. Carter, before you proceed, will you allow me to call your attention to some dates about which, pos- sibly, there is some misunderstanding. 1 understand that these commissioners were in fact appointed before any convention was signed. Mr. Carter. Yes. Senator Morgan. They entered upon their work and completed it so far as the investigation was concerned, before any convention was signed; and when they made their report a convention had been signed, but it had not been ratified by cither Government, and ratifications had not been exchanged. Mr. Carter. I am not able now to say what the fact was in that particular as to dates. Senator Morgan. I desire to present that, because it is in my judgement an important fact. 1 know it is a fact be- cause the record shows it. Mr. Foster. They adjourned on the 4th of March, and the convention was ratified by the Senate on the 29th of March. Senator Morgan. The Commissioners completed their la- bors making their joint report and a separate report to each Government before the Senate of the United Stales acted upon that convention, and before ratifications were exchanged. Mr. Carter. I believe that to be so, but 1 have not the dates. Senator Morgan. Therefore, there was no treaty at the time they made that report. Hi*. .-. .ffiSSK!!*)*;-; mm)$ ■- 4 100 ORAL ARfiUMENT The President. But thoie was an nrrangemont between the Governments — pn^cisoly the arrangement which was signed afterwards, on the ISth of December, 1891. There was an ar- rangement made in June, 4891, if I remember, which you read us a few days ago, an arrangement in seven articles, providing for the joint commission to be sent out. That was not signed but it was an arrangement between the Governments. It was not signed or ratified, since it had not been submitted to the American Senate. Senator Morgan. The President does not seem to appre- hend exactly that no arrangement made between the diplomatic functionaries of the United States and any other Government of the character mentioned here, has any elTect whatsoever upon the laws of the United Stales until it has been ratified by the Senate; and the ratification took place not only after the arran- gement was made, but after the report was made. The President. The 7 th of May, 1892. Mr. Justice Harlan. The separate report of the British Commissioners was made June 1st, 1892, and the exchange of ratification occurred May 7th, 1892. Senator Morgan. I refer to the joint report, after which, as I understand it, the Commission, as a Commission, was dis- solved. And each of the Commissioners went on, whether right- fully or wrongfully, I am not prepared to say, to make subse- quent thereto, their separate reports to their respective Govern ments. The President. That is perfectly correct. Mr. Carter. The statement by the learned Arbitrator is entirely correct. Senator Morgan. The Commission finally adjourned on the 4th of March. The ratification of the treaty was had on April 22d. Mr. Justice Harlan. The ratification? Senator Morgan. The ratification by the Senate. Mr. Foster. It was proclaimed May 9th. Mr. Garter (reading). " Concluded at Washington, Feb- ruary 29th, 1892; ratification advised by the Senate, March 29th 892; ratified by the President, April 22d, 1892; ratifications exchanged, May 7lh, 1892; proclaimed. May 9th, 1892 ". That is OQ the first page of volume 1 of the Appendix. Senator Morgan. It was proclaimed by the United States as an amended treaty, putting the treaty as originally ratified by the Senate and the modus vivendi which came in as a supplemen- tary treaty or an amendment of a former treaty together, and constituting one instrument to be construed m pari materia. ii^ I^CCifcaiM i ij iit'wwit - i M i w w ita n &ffw. w MjiTslion is as to tlie law which is to govern it in its deliberations. This is a Tribunal composed of the citizens of different nations, part bcb^nging to the nations between whom the controversy sub- sists, and part coming from other nations. They are silting under no municipal hivv whatever. The authority of the courts of (Jreat Britain, the authority of the courts of the United Slates, as aulhor- ity. are as nothing here. This is an international Tribunal. Then, loo, there is no international legislature which has adopted any law in relation to these or any other subjects which can be administered or applied. Therefore, in a certain sense, and in the sense in which we speak of law when we are engaged in a contro- versy before municipal tribunals, there is no law at all. Yet we cannot suppose that questions of this sort are to be discussed, debated, and determined by this Tribunal, without its being bound by some rule or some system of law. What then is the law which is to govern us? I suppose 1 might appeal with entire confidence to the conscience and the immediate conviction of each one of the members of this Tribunal, that the decision of the controversy is to be governed by some rule of right. What that particular rule may be, where it is to be sought, is another question; but the deci- sion is to be governed by some rule of right. 1 heard with infinite pleasure my learned friend, Sir Charles Russell, upon one occa- sion when he was addressing you, say that, the first five questions mentioned in the treaty were what he might properly enough call, he thought, questions of right, and that they were questions of right which must be decided by the members of this Tribunal as jurists. I concur in that view of those questions thus taken by him and anticipate, indeed, that it will never be receded from by him. How else could it be? This is called an arbitration; but very plainly it is not an arbitration of that character which very frequently takes place between man and man. Oftentimes in controversies between individuals it is of far higher importance that the particular controversy should be in some manner sett- led and the parties left at peace, than how it shall be settled; and therefore in such cases the decision is often reached by some reciprocal process of concession, giving a little on one side and conceding a little on the other, and so on, until finally an agree- ment is reached without a resort to any particular principle. That is not the way to deal with this controversy. It is of a totally different character. If it could have been disposed of by mutual OF MR, CAIITEH. 103 »i(lor. licli it )ns to lovern compromise and concession it would nevor have been brought before this Arbitration. The parties themselves could have set- tled it. They are quite competent to say how much they will be willing to yield, in order, by mutual compromise and concession, to linally reach a point upon which they are willing to agree. Hut the dil'liculty in this case is that the parlies were in dilTerence in respect to their r<^/rminalioii. It is a (jnestion of the gravest and most im|iortant character; npon which dilVerences of opinion may arise likely to end)roiI nations in hostilities and to hreakn|) the peace of the world. Then, a^ain, that other qnestion, tln^ circum- stances under which a nation may assert a right of property in animals that resort to the seas for a greater or less time during the year, and therefore an aninnd which at diU'erent times may place ; itself imder the power of citizens helonKUig.to different imtions of tlic earth; wliat (|uestion of greater importance can tliere lie than tlnit which invcdves the princi|»les u|)on which such conllicling claims may be resolved — the fundamental principles npon whicli the institution of property stands? These are (jnestions, the permanent im[)ortance of which far outweighs the particular interests of the contending parties to this controversy ; and I must therefore express the hope that they will be settled as my learned friend says they ought to be settled, by tliis Tribunal, looking to them as jurists, and feeling the responsi- bilities of jurists, The jndgment awaited from this Tribunal will be, or ought to be, a monument, or rather an oracle, to which pre- sent and future times nuiy appeal as furnishing indisputable evi- dence of the law of the world. Therefore, I think myself justified on this occasion in appealing to each member of this Tribunal — 1 think it is not unbecoming in me to make that appeal — to discharge and dismiss from his breast every seriiment of partiality, and even of patriotism, and to look npon this question as if he were a citizen, not of this coun- try, or of that country, but a citizen of the world, having in charge, and having only in charge, the general interests of mankind. The promptings of patriotism, everywhere else to be iieeded, should be silenced here, and nothing should be obeyed except the voice, the supreme voice, of justice and the law. But while it is to be a rule of right that is to govern the deter- mination of this Tribunal, what is that rule of right, and ii^here is it to be found? In saying that it is to be a rule of rigjit, it is assumed — it is indeed declared — that is must be a moral rule ; that is io say, it must be a rule adopted by the moral sense; for there are no rules of right except moral rules. Right and wrong have to do with morality and with morality alone. The law, whether it be • '. international law, or municipal law, is but a part of the general OK MM. CAHTKH. iO» (loniain of otiiics. It niiiy iiol iii(-lii llic wliolo of Hint doinnin, itut till' cciilrcs ol' cHcli system coiniMtlc, iilllioiigli tin' circiimtV- roiicf' ol" one iiiiiy cxlcud licyoiul llic cii-cumiViTiice ot" the otiior. Wlion I say Ihal this must Ik> a Moral rule*, that is to say, n rule (liclalcd l»y tlio moral scmiso, I do not moan, of coiirso, that il is the moral sciisi^ ol' any individual man, or of any individual ruilion, liccauso llicrc arc diircrfMiccs in Hie moral coiivictionH of dilfcrent men and of diiVcrcnl nations. It is a controversy between nations. We cannot a|>|)ly to it the moral standard, either of one,orof »;ie ollii-r, or of any parlicular nation. Where, then, (;an we lind it? I siihniit to you Ihat we must lind Ihe rule in Ihal general moral standard upon which all civilized nations and the people of all civi- lized nations are agreed. We eaniiol lake Ihe opinions of one; we cannot take Ihe opinions of iiiiotli(>r. We must lake Ihut stan- dard upctn which all civilized nations are agreed; and that Ihere is such a standard there can he no manner of douht. This whole proceeding would he out of |)lace if then; were not. 1 could nol with any propriety or relevancy slaiid up and address an argument to this Trihiinal unless there was some agreed standard between it and me to which I could appeal, and upon which I can hope to convince. There is, therefore, an agreed standard of mora- lity and of right, of justice and of law, agreed ujion among all civilized nations and among the people of all civilized nations. It is just as it is in mur .ipal law. There is a standard there. When controversies are brought before a municipal tribunal, it is most generally the case Ihat there is no particular statutory law which goven the decision; and it is very often, and perhaps gene- rally, the fni I that there is no particular prior decision, or prece- dent, which will serve as a rule of decision; and yet the courts make a decision. How do they reach it? It is because the judges of municipal tribunals are judicial experts; whose business it is to ascertain the general standard of justice of their own country and to apply it to the controversies wich are brought up before them. The ge- neral standard of justice in a municipal society is so much of the general rules of morality and ethics as that particular society chooses to enforce upon its members. So, also, in the larger so- ciety of nations, there is a similar rule. There is a general interna- tional standard which embraces sfrmuch of Ihe principles of mo- rality and ethics as the nations of the world agree shall be binding upon them. That is international law, founded upon morality, founded upon that sentiment of right and wrong implanted in the breasts of men wherever they are. It is this alone which enables them to engage in society with each other; il is this alone which enables them to live at peace with each other; and, therefore, the SiU, ■■*■ •A ItfBlimi^Hirximttu'* v^.^U^f-.'- .■'?«)>c-A»B»^:»dru)na<>; !ii i If 106 ORAL ARGUMENT OF MR. CARTER. rule wich this Tribunal is to adopt is the general standard of justice recognized by the nations of the world, which I conceive to be only another term for international law. The President. Mr. Carter, if you please, we will continue to-morrow. Before rising, I beg leave to state that the Tribunal intends taking a somewhat longer receso to-morrow. It will take its recess from one o' clock until two, which is an exception to our usual practice. [The Tribunal thereupon adjourned until to-morrow, April 14, 1893, at 11.30 o'clock a.m.] iiKmimmmm » ^ .1 ^' '■■■■i .f i w g 'n. f' ii-i iF tw w w i i of justice ive to be continue I intends take its )n to our April 14, NINTH DAY, APRIL 14", 1893. [The Tribunal met pursuant to adjournment.] The President. Mr. Carter, if you will continue your argu- ment we will be pleased to hear you Mr Carter Mr. President, at the close of the sitting yesici the co..« of ray argumenl upon a^»jt;sa*afaie ;'j . a «ii»:i' teM » ^.a 108 DUAL ARGUMENT that law or rule is, for the most part, what is commonly called the law of nature. This is, indeed, the foundation, not only of interna- tional law, but it is the foundation of all law, municipal as well. All municipal codes are hut attempts on the part of particular societies of men to draw precepts and rules from the law of nature, and re-enact them for the guidance of its individual members; and in those countries which are not governed wholly by codes or by statutory enactments; in those countries like England and Ame- rica, whore i!ie great body of jurisprudence is unwritten, still the decisions of the tribunals which constitute the sources and the evidence from which the law is ascertained, are derived in great part from the law of nature. I must fortify what I say in that particular by a reference to some of the highest authorities on this subject. I shall read a ([no- tation from the celebrated disquisition of Sir James Macintosh on the Law of Nature and Nations, lie says : The srioiico wliich teaches llie rights ;;nd duties of men and of stales has in modern limes heon slyhul " the law of nature and nations. " Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various relations of human life; as tiiey regulate hoth the obedience of citizens to the laws, and the autliorily of the magistrate in framing laws and adn)inistenng government; and as they modify flie intercourse of independent commonwealtiis in peace and prescribe limits to tiieir hostility in war. This important science com- prehends only that part of private ethics which is capable of bein^ reduced lo fixed and general rules. He thus points out the law of nature as the source of all human jurisprudence, whether municipal or international; and Lord Bacon had before expressed the same truth ; ho says : For there are in nature certain fountains of justice, \\I>ence all civil laws are derived but as streams, and like as waters do lake ti.ictures and tastes from the siuls through wiiicii they run, so do civil laws v:ry according lo the regions and governments whe:e they are planted, thougn they proceed from the same fountain. This law of nature, as it is styled, is sometimes designated by different terms. Sometimes as natural law; sometimes as natural justice; sometimes as the dictates of right reason; but by what- ever name it is described, the same thing is always intended; and it means, in short, those rules and principles of right and wrong, implanted in every human breast and which men recognize in their intercourse with each other, because they are men having a moral nature and are brought into conditions with each other which compel the application of moral rules. I may cite a refer- ence by one of the great authorities which all English lawyers OF MR. GARTKH. ««» are compelled to study at the very beginning of their instruction. That is Blackstonc. He says : This law of nature being coeval with mankind, and dictated by God him- self is' of course, superior in obligation to any othei. It is binding over the Kobe in a?l countries, and at all times; no human laws are of any val.d. ty .f contrary to this, and such of them as are valid der.ve all then; force and all their authority, mediately or immediately, from th.s ong.nal. (Comm. Book I, p. 41-) . And the dependency of all law upon the law of nature is very happily and clearly illustrated by those three great maxims which constitute the basis of the jurisprudence of the Homan law, some- times called the Ulpianic precepts. They amount simply to a re- duction to their original form of the dictates, of natural justice, or ot natural law,- and they are thus familiar to overy lawyer : « Juns prxccpta sunt hxc : honeste vivere, alterum non Icedere, suum ciiiqne tribucre. » , . ,. , , j- , ,u„ Some writers have been sometimes inclined to dispute the authority of this law of nature, on the ground that there is no supreme power capable of enforcing its precepts ; that nations are themselves supreme; and being supreme and sovereign there is no power over them; and no power, therefore, to enforce he dic- tates of this law, as there is a power to enforce the ru es ol muni- cipal law upon the individual members of a municipa state. ■ 13ut that notion, I think, is a mistake, and has generally been agreed to bo a mistake. It does not follow because thei-e is no supreme authority to enforce the dictates of this law that it is any the less binding. There are plenty of considerations which do entorce it. It is enforced, in the first instance, by the sense of right and wrong which dwells in the breasts of nations, as it does in the breasts ot individuals. The very sense of obligation is of itselt a means ot enforcing the law. It is enforced, in the next place, by the pub- lic opinion of mankind, which holds to a strict account every nation that undertakes to depart from, or violate, its dictates ; and it is en- forced, in the next place, by the disastrous consequences which nature herself has ordained and made certain to toUow from any disobedience of its precepts. This has been well expressed by a distinguished English writer upon international law. I rctcr to bir Robert Phillimore. He says : It is sometimes said that there can be no law between nations, because Ihev acknowledge no common superior authority, no international executive a?ableof en o7cing the precepts' of international law. This objection admits of various answers ? First, it is a matter of lact that states and nations reco- gnhe the existence and independence of each other, and out of a recognized ety of nations, as out of society of individuals, law "mst necessarib^ spring The common rules of -Ight approved by nations as regulating then I*;? -iii'iiSiir HO ORAL ARGUMENT intercourse are of themselves, as has been shown, such a law. Seccndly, the contrary position confounds two distinct things, namely, the physical sanction which law derives from beinp enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cognizance of human law. In like manner, internal ional justice would not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced. Hut irrespectively of any such means of enforcement the law must remain. God has willed the society of Stales as He has w illed the society of individuals. The dictates of the conscience of both may be violated on earth, but to the national as to the individual conscience, the language of a profound philoso- pher is applicable : " Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world ". Lastly, it may be observed on this head, that the history of the world, and especially of modern times, has been but incuriously and unprofltably read by him who has not percei.^^d the certain .Nemesis which overtakes the trans- gressors of international justice; for, to tnke but one instance, what an .< Iliad of woes » did the precedent of the first partition of Poland open to the king- doms who pat icipated in that grievous infraction of international law! The Homan law nol 'y expresses a great moral Iruai in the maxim, " Jurisjurandi contempta r -ligio satis Deum habet ultorem '. The commentary of a wise and learne I. French jurist upon these words is remarkable and may not inaptly close this first part of the work : '* Paroles (he says) qu'on pent appliquer egalement a toute infraction des lois naturelles. Lajustice do I'Auteur de ces lois n'est pas moins armee contre ceux qui les transgressent que contra les violateurs du serment, qui n'ajoute rien k I'obligation de les observer, ni a la force de nos engagements, et qui ne sert qu'a nous rappeler le souvenir de cette justice ine.xorable. » (Phillimore's International Law, third edition, London, 1879, vol. I, section L\.) IJi And let me cite another extract which 1 had noted from Sir James Macintosh, and from the same disquisition to which I have already referred : , . . The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of slates, are all parts of one consistent system of universal morality. He- t.ween the most abstract and elementary maxims of moral philosophy, and the most complicated controversies of civil and public law there subsists a con- nection. The principle of justice deeply rooted in the nature and interests of man pervades the whole system and is discoverable in every part of it, even to the minutest ramification in a legal formality or in the construction of an article in a treaty. — (Sir James Mac Inlosh, Discourse on the Law of Nature and Nations, sub fine.) And Mr. Justice Story says' in his book on the Conflict of Laws, Ch. 11, Sec. 35 : The true foundation on which the administration of international law must mm OF MR. CARTER. tit [flly, Ihe sanction le moral I error is 3ns into fugti the or less In like bellation rest is that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return. The same great authority when silting as a judge in the case of La Jeune Eugenie, in the second of Mason's Reports, p. 449, says : But I think it may be unequivocally affirmed that every doctrine that may be fairly deduced by correct reasoning from the rights and duties of na- tions and the nature of mcral obligations may tlieoretically be said to exist in the law of nations; and, unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and custom, it maybe enforced by a court of justice wherever it arises in judgment. The main foundation of international law is, therefore, the law of nature, and it is a system not evidenced by any written code, but is a body of moral rules. But it is a body of moral rules, at the same time, as to which all men are not absolutely agreed. There are differences in the moral convictions of different men, and there are dillerences in the moral convictions of the same people and the same nation at dilferenl periods of time. Law is a progressive system advancing step by step with human progress, and it is constantly aspiring, as it were, to reach a more complete harmony with theoretical moral rules. We cannot, therefore, in applying international law apply those moral rules which we our- selves may deduce from our study of moral precepts. Others may not agree with us; but still there is a great body of plain and simple moral rules to which all men, and all nations, may safely be presumed to agree, and to that extent wo may enforce Ihjm. It is, nevertheless, true that in human jurisprudence the actual doctrines which are enforced upon the individuals of a municipal slate, or which are yielded to and recognized by nations, do not come up to the elevated standard of the law of nature. That is a system of very high standards, not at all times actually recognized in the practice of men. Where these standards do thus stand above the actual practice of men, what we have to enforce, — as we can enforce only what is agreed upon, — is the rules so far as they are actually recognized. That truth has been rather strikingly illustrated in the case of the slave trade. Very few enlightened men could be found who would not say thai the slave trade was essentially and absolutely wrong. Very few could be found who would not say that it was absolutely contrary to the law of nature ; but is it against human law? Few of the nations of the world had, imtil recently, so far recognized the pure and true principles of natural law as to carry m OHAL AHliUMENT irE them out to the consequence oi" forbidding the slave trade. Tliat question has arisen judicially before several tribunals. It arose in the Supreme Court of the United Slates, and called for the consideration of Chief Justice >hirshall. The question was whether the Supreme Coui'l of Ihc United Slates could execute a muni- cipal law which declared the slave trade to be ;y a man I have a riglil Id dclend myscir, and I do so. II' a man intrudes upon my property I liavo a right hy my own arm, wi'houl appealing to any tribunal, to thrust him oir it, and I do so. Those are the same modes of enforcing jusliee and protecting rights which men would exercise if there were no governments at all. Mr. Locke then deals with the suggestion, which, he says, will he made, that this state of nature is a mere imagination which never has existed, and never is likely to exist, and that c(»nse(|uently it is idle to inquire what rights men would have in a state of nature, or what means they would have of enforcing Ihem. To which he makes the pertinent answer that all princes, kings, and sovereign states are now, and ever have heen, and always must he, living in a slate of nature, and have no other way of enforcing justice or determining rights than individuals would have if there were no govirnmont over them. These observations all tend to show, and J think, conclusively, show, that there is an unwritten law which is everywhere in opera- tion, and which is perfectly sovereign, to enable us to dotr rniine in any given case what the rights of nations are as between each other in respect to properly, or in respect to any ofhc relation which may be di-awn in question, a law which though nol written upon tables of stone, or promulgated amid the thunders of Sinai, is nevertheless binding upon the conduct and consciences of nations and of men'' When we look to the more particular sources from which are to derive knowledge of that law, I think they are these : First, the actual practice and usages of nations; and these are to be learned from history, in the modes in which the relations and intercourse of nations with one another are conducted, in the acts commonly done by Ihem without objection from other nations, in the 'Irealies which Ihey make with each other — although these should be con- sidered with some degree of caution, for they are sometimes exact- ed by a more powerful from a weaker nation, and do not always contain the elements of justice. And this practice and these usages are also to be found in the diplomatic correspondence be- tween nations ; which assert principles on one side which meet with acquiescence on the other. Another source from which we may ascertain the actual prac- tice and usages of nation is from the judgments of those courts which profess to administer the laws of nations, — such as prize tribunals, whii-h arc sometimes called international tribunals, although, strictly speaking, they are not such. When these sources fail to discover the rule by which we are to be bound, we OF Mil. CAHTKIt. 117 we must look to Ihe grcul source from wliicli ull law Hows; lluit is to soy, nulural law, I lie diclalcs of riglil reason, or what is best tenneil, |)orlia|)9,' llie law of nature. Let nui call alleuliori lo one most useful source to which we may look for ascertaining; what the law of nature is, and which is not so commonly pointed out, I think, by wi'iters. I mean to the munici|)al law. If we want lo know what Ihe law of nature is upon any given subject, the municipal law is a prime source of infor- mation; and it is so because municipal law is founded upon the hiw of natm-e, and has been cultivated in every civilized stale, as 1 have endeavored lo point oul, nu)sl assiduously for a thousand years by learned experts called judges. The clforts of such men exteniling over such a long period of time, in in(|uiring and deter- mining whal juslice is in multiludes of cases, are a nujde of culti- vating the systiMn of Ihe law of nature. We know what rules are prescribed by Ihe law of nature from the results of their inquiries; and, therefore, when any question of right arises similar to thos(? ([uestions of right which aris(> in municipal juris[)rudeuce, the municipal jurisprudence of Ihe sev(^ral states of the world, so far at least as it is concurring, seems to me to be a prime source of knowledge. And, llnally, in iill cases where we are to seek a knowledge of the dictates of the law of nature, the authority of the jurists, from (Irolius, the great master of the science, down thnuigh succeed- ing writers, lo those of the present day — a very numerous body of very illustrious men, given to ethical studies and to a consider- ation of the groat relations of independent states with each other — these constitute a source of information always respected by judicial tribunals. That, Mr. President, closes what I have to say in reference to the law which is to govern the determination of the Tribunal; and I am happy to believe that upon this branch of the controversy, at least, I am lo anticipate no substantial disagreement from my learned friends upon the other side. I think the subject hardly admits of a difference of opinion; and from what has already fallen from some of them, 1 anticipate a concurrence. Sir Charles Russell. My learned friend must not assume that. Mr. Garter. Then let that be considered as unsaid. I am apprised that there may be differences, and 1 shall listen with some degree of interest to a statement of what those differences are, and to the grounds upon which they may be based. I now approach the consideration of that question which, in the order adopted by the Treaty, seems properly to be the first to engage our attention. That has reference to the rights which may have riki 1! us ORAL ah(;i;mknt ■B been gained by Riissin over lh(^ regions in conneclion with which this controversy has arisen, and the rights which conse(|uenlly Iho United Slates may have (h'rived from the act of" cession ot'tlie Ahis- kun territory by Russia to the I'niled Stales. Wiien I was giving a historical sketch, of the origin of this controversy, I very hrielly alhidi>d lo liu! region of llering Sea and to the early discov(>ries and ac(|nisitions of Itnssia in that (|narter «)f the globe. 1 ought, |)erha|)S, to call attention to some of the details which it was not im|)ortanl for me then to give. Th(^ maritime enterprise and ambition of Ihissia, wilhholding its (ixercise from the more fruitful and agreeable quarters of the globe, were exerted in these high norlhern latitudes on the coasts of Asia and North America. The discoveries of llnssian naviga- tors in that (|uarler of the globe began at a very early period. As early as ltH8 a voyage was made from the Arctic Ocean, from the norlhern shores of Siberia, around through Bering Straits, and along the eastern coast of Siberia. That was as early as t64S ... at about the same time there was a discovery of the North Ameri- can continent near the moulh of the Yukon Itiver, on the other side of hering Sea. The President. Was not Siberia in possession of Russia? Mr. Carter. So far as it could be in tlu^ possession of any power, I think it can be said that as early as that period il was in the possession of Russia. In the year 1728 Bering made his voyage through the Straits lo which his name was afterwards given. He made a second voyage in 1741, and in that voyage he discover- ed the eastern shore of the Sea, and also a large number of the Aleutian Islands. He discovered also the Commander Isliinds, which are the breeding place of the Russian seals; and it was upon one of those islands that he was shipwrecked. This discovery of the Commander Islands by Russia gave them a knowdedge of the herd of fur-seals which visited that spot, and enabled them to turn that source of wealth to the be- nefit of man. During this period, and subsequent to the voyages which I have mentioned, there were other very numerous Russian voyages in Bering Sea and along the Aleutian chain, and in the course of them it was discovered that there were vast bodies of seals at certain periods of the year migrating north, and at certain periods migrating south. ']'[.:'}.■ migrations north were more noticeable, because it is in those migrations that they are more together; and from the knowledge the Russians had already acquired of the habits of seals on the Commander Islands, they had every reason to believe that there was, north of the Aleutian Islands, through the passes of which they saw them taking their course, some remote region which they made their 1 javo OF MH. CAiriKH. H9 breeding gi'oiitid. As 1 liiul occiision to stale, the discovery of thai iiiikiiowii region was one ofllie great purposes of Prihilof, an enter|)rising Itussian navigator, and he linally, after many alt(>nipt9, made llie discovery. The President. Yon mean (o say Pribilof's expedition was mainly designed on account of tlie seals, — that he. at that period, was looking out for the seals? Mr. Carter. lie was. After (hat discovery he had been looking out for th<> breeding place of those seals which he had ohserve(l nuiking these migrations to the northward. It was a distinct object with him, nnd he linally satislicd his ambition and made the discovery. At a later period, Russian navigators also explored the region south of the peninsula of Alaska, and down as far, certainly, as the I'iMh degree of latitude, and as the Kussiau authorities at the lime claimed, down as far as the 51st degree of latitude; along thiscoast (here indicating on the map), which I call the Northwest (loast. When I speak of the *' Northwest Coast ", without saying more, I mean that particular coast south of the OOth degree of north lati- tude, and extending down over the whole of the Russian posses- sions, and of Rrilish America. A few words as to the characteristics of those regions. In the first plac(!, they were one and all absolutely incapable of agricul- ture. No such pursuit was possible upon them. In the next place, they were at that time almost uninhabited. Scattered tribes of natives, Esquimaux, were to be found nearly as high up as the Rering Straits; and I suppose, also, at other places farther south. Some of the Aleutian Islands were inhabited by native races called Aleutians, and this more southern shore and islands were inhabited to a still greater extent by several different trib s of Indians. On the Siberian coast there were very few inhabitants, 1 mean in its more northern parts. As there were no agricultural products, we may ask what other products were there. They were rich in one thing, and in only one thing, and that was fur-bearing animals. There were sea otters, seals, and many other animals, valuable for their skins, and at this early period, that was substantially the only product of these whole regions which was of any value toman. Subsequently, of course, fisheries were developed; but at that early period there was no product of these regions valuable to man except animals, which were valuable on account of their skins. How could this sole product of that region be gathered and turned to human purposes? It was only by employing the instru- mentality of natives who were from time to time engaged in the pursuit of these animals, and visiting them upon frequent, or mki ri 120 ORAL ARGUMENT upon stated, occasions for the purpose of taking such store of the skins as they had previously gathered, and giving by way of exclumge and return such articles as the natives might be in need of. That was the only way in which the only product of tbese regions could be turned to human account ; and that involved the necessity of having trading establishments at various points along the coast, and the furnishing of a certain number of vessels suffi- cient to carry the subjects of the commerce backwards and for- wards. It required, also, the protecting arm of the Itussian Government to defend the trading establishments thus formed. Such eslablishuients were principally — and the largest of them — on the islands and shore of this Northwest Coast. There is where the most important of them were livst placed. There was at an early pei'iod at least one establishment as high to the northward as where the pointer rests now (indicating on map), and perhaps others along that coast ; but as I now remember, I think not at that very early period. The Pribilof Islands were not inhabited for a very considerable lime after Ihcirdiscovery. They were uninhabi- ted when found. The population liiially inhabiting them was carried thither from some of the Aleutian. Islands. Let i.ne, in the next place, remark that according to the ideas of tiiat age and of that time, prior discovery gave to a nation the right auyl title to the new regions which it had discovered. Ever since the discovery of Columbus had revealed l(t the Euro- pean nations the existence of a new world, the ambitions of the dillerent nations of the W(U"ld, or of many of Ihe different nations of the world, were greatly excited in turning these various disco- veries to account. There were likely to be, and there were, as we know from history very well, conllicting claims arising out of an asserted priority of right; and those conllicting claims were often the subject of discussion betwen dilferent Governments. It was necessary that some rule should be establishedby which priority of . right should be determined; and the rule eventually established ^ was the one which men wouhl necessarily recognise if there was no other thing to give priority, — and that was priority of disco- very. That came to be universally recognized as a just foundation for a right. If, indeed, the prior discovery were subsequently abandoned, it might go for nothing; but unless it was abandon- ed, if discovery had been made, if an assertion of title had accom- panied it, and an intention to appropriate the region — The President. And taking possession? '. Mr. Carter. And intention to take possession. It was not necessary to take actual possession, at first. Thai would not be possible in many cases; but if the intention existed to lake actual possession, and that intention were carried out within a reasonable '^ '•':■- I ■ )ro of the ' way of 3 in need ; of these olvod the nts along' sols suffi- and for- Hussian i formed, f thorn — is where 'as at an orthward 1 perhaps lot at that ted for a juinhahi- hcm was the ideas ation the rod. Ever ho Euro ns of the it nations )us disco - irc, as we out of an ,ere often . It Avas riority of itahlished Ihero was of (lisco- jnndalion sequently ahandon- id accom- was not Id not ho ke actual easonable OF MR. GARTEH. period, and not abandoned, the full and complete foundation right was laid. How far did such a right extend? A nation discovers some part of the Atlantic Coast of the United State;,. Can it claim the whole Atlantic Coast upon the basis of that mere discovery? How groat a strip (dthe coast does a discovery of one particular part of it entitle the nation which has made the discover) to claim ? Could she say : " I will coast with vessels along this shore for a thousand miles or two thousand miles, and claim the whole of it on the strength of that? " That was one of the (luestions. Tiien again : How far inland docs the riglit tiius founded upon prior discovery extend? That was another (|uesti(m. Could a nation tiiat had seen and observed a particular point on the coast of a continent extend its title indefinitely to the interior and perhaps to the ocean on the other side of it? Those questions were never fully settled; but there was an approach to a settlement, and I thiidi it was generally recognized that so much of a coast could be claimed by a discovering nation as it was in the power of that nati ihe extent of terri- tory which it C(»uld claim title to could not bo limited to the mere point which it had discovered. Croat Britain asserted that she had discovered the whole Atlantic Coast of the \orth, American C(mti- nent, from Nova Scotia at the north, down lo Florida at the south. I leave out of view now the controversy between Croat Britain and Holland which alfocted that portion of the coast in which New York is situated; Ihe title of Croat Britain ncing finally vindicated to that. But she claimed, you may say, the wlv.de AtJauiic Coast in virtue of the right of prior ('ucovery. Had she many establish- ments upon Ihat coast al an early period? N(»: not half a dozon of them. Tbatwludo space, an >-ytont of 3,000 miles or more, v;»'; assorted by Croat Britain to bo hers in virtue of no other title thai a right of first discovery, and an occupation in half a dozen ditforeni . placc'i along the coast. Russia, in making her discoveries of both siioros of the Bering Sea, o -he islands of the Boring Sea, and of the Northwest Coast dow- ■ . the Sith or oOth degree of north latitude, claimed and asserted a sovereign right and dominion lo the whole of the terri- tories thus discovered, founded upon prior discovery. She foUow- I' p- 122 OHAL AUGUMENT 4 I ed up thai assertion by ihc ostablishmenl of llicsc li-adii.g posts, one or more of them, on the Alaskan shore of Bering Sea, several of them on the Northwest Coast, south of the peninsula of Alaska, and more or less of them — I do not know how many — upon the Siberian coast. Ilcr title, therefore, was based upon an undis- puted prior discovery, and upon an undisputed occupation, so far as those few establishments could give an occupation of the whole region. Did they give a fair occupation of that whole region? That is a question which it is proper to consider here. Was this a reasonable assertion by her of dominion over that vast region ? Could she fairly claim to exclude other njitions of the globe from a participation in the benefits of that disco- very on the ground of her prior discovery, and the limited occu- pation which she had thus made ? Was that a fair and reasonable claim? Possession of everything must, of course, correspond to the nature of the thing. If a nation had discovered some very fruitful part of the globe, — the West Indies, for instance, the more southern parts of the United States, — and had attempted to lay a claim to a thousand miles of the coast, upon the mere basis of an occupation at one point, it might be deemed very unreasonable. Other nations might come in, and say : "You are not fairly improv- ing the discovery you have made. Here is a coast capable of cultivation, capable of extensive sottlem^nts, capable of supporting a numerous population, capable of enormous production. You are not putting it to the uses and purposes for which nature intended it; you are leaving it in a wild and desolate condition; you are improving only a small portion of it ; and yet you assume to shut out the rest of mankind from the benefits of it on the basis of that very small and limited occupation. That is not just or right, and you shall not be permitted to do it." Assertions of that character were made at this time, and the justice of them was quite apparent. How was it with this northern region ? Ithad,as I have already said, but one ))roducl, and that was these fur-hearing animals. That one product was extremely limited, exhaustible in its character, and could be fully reaped and gathered by one nation. All that it was necessary to do to gather the product of this enormous region was to establish a few tradingposts, which should be the centres of commercial estab- lishments, and out from which vessels could go along the coast, from time to lime, to gather from the natives the stores of skins they had collected. In that way the entire product of this whole region could be reaped easily by one power, and there was not enough for more than one. The President. If you please, we will rise here, and resume the hearing at 2 o'clock. ^!t OF MR. CARTER. m [Tho Tribunal thereupon took a recess for an hour.] Mr. Carter. 1 was speaking, Mr President, at the time the Tribunal rose in reference to the point of the nature of the occu- pation which it was necessary that a nation should take in order to make good the title founded'upon first discovery of a new region. And I had said that the nature of that occupation must depend upon the nature of the thing to be occupied, and that while acts of occupation in one quarter of the globe might be suflicieiit to make good a title to but a very limited portion, in other portions cf the globe they might be sufficient to make a title to a very considerable region of the earth. Now I wish to apply those views to this Ber- ing Sea region, which was the great theatre of Russian enterprise, and to show, upon all the principles recognized in that age, that her exclusive title to all. or nearly all, of this region is very fully made out. x\nd, in the lirst place, let me again bring to your attention here that the sole product of this region was substantially Inr-bearing animals and other animals useful for their skins, and hat the gathering of that product was the sole benefit that man- ,id could derive from that portion of the globe at the time. And, next, there was only enough for one power, and that one power was abundantly competent to reap the entire harvest. Thv^re was not enough for two. Several nations might, indeed, contend for the benefits of this trade in fur-bearing animals, but if they did. there would not be enough for all of them, whilst the Russian trade would be impoverished; and that would be of no advantage to the other nations of the earth : they would make investments in it which would not be remunerated. It would be best, therefore, for the countries immediately concerned that the reaping of th« entire harvest should be left' to one. Rut, in the next place, it would be better for the interests of mankind ; and that is the impor- tant con ■•deration here. Ry leaving the monopoly of the fur trade and of ihfc other animals to'Russia alone the trade would be regu- lav lue Avc^ld would be regularly furnished by the product of this re; 'o. . .1 >.vould be furnished at the smallest expenditure in money am; lai m. da(\ it would be furnishod, therefore, at the lowest price. And, Cos ?qu.'r.tly, all interests — those of rival nations and of the whole woi 1 Uself — would be best served by confining the trade to the one ^ower. The bounty was easily exhaustible, and wherever a prof^dct of Nature is exhaustible, it is better to leave the whole \o be exploited by one. Now, acting upon these views, Russia made a perfectly good title according to the ideas of that age and according to a principle entirely defensible : she established tra- ding stations on the coast of Siberia, on the coast of Alaska and (-.r« Dcring Sea, and still others along this north-west coast. It is iT =; M -it along the north-west coast she met with the rivalry of It 11 124 ORAL AHGUMKM" other nations, and th(7 made similar establishments along that coast, although nol to such an extent as Kussia did. Hut all north of the 6Uth degree of latitude was left exclusively to her. The President. Did you say 60lh or G2nd ? Mr. Carter, i say Ihe GOlh. It is sometimes called the 61st. The liue which separated the unquestioned part of Russian posses- sions from those which were questioned was sometimes sly led the 60th or (list degree of north latitude. Now that was a title which Russia had asserted upon the ground ot prior discovery, earlier than Ihe year 1800; that occupation she had made earlier than 1800. She had, in her own view— and I think justly — done every act necessary to secure to lier a complete and exclusive title upon all the shores and all tiie islands of that sea, and to the Aleutian Islands, which bounded it on the southern side. In 171)9, acting upon the assumption thai rdie had thus acquired an exclusive title, she made a grant of the ' i-- e privilege of that trade to a cor- poration existing under ht s and that was by what is called the I'kase of 171)1), or, perhui more correctly, the charter of the American Company. It is found on page I i- of the lirst volume of the Appendix to the American Case. I Mr. Carter here read the tirst four sections of the Ukase. | These extracts from that I'kase will be sufficient to convey an idea of the nature and extent of this grant by the Russian Covern- menl. It was not a public tad notilied to all the other nations of ihe world ; and the criticism is on this ground made by the learned Counsel for (Jreat Rritain in their (^ase that it was a concession only in favor of certain Russian subjects, and was not leveled against other nations, and therefore no evidence of an exclusive right against other nations. Rut that seems not to be a correct view. It was on the face of it an assumption of properly and com- plete dominion by Russia over the whole region. The act would have had no signilicance unless Russia had entertained the view that she was the sole proprietor, against all other nations, of that region and of those products. And, except upon that view, it would have operated, not in favor of Russian citizens, as it was designed to operate, but against them. If it were allowed that it was in favor of certain Russian subjects and nol in favor of others, its eti'ect would have been to extend the privilege to all nations and relieve them very largely of Russian cf.mpetition. Of course, such coulu not have been its intention. The design was, not to prompt other nations to interfere with that trade, but to secure the whole of it for the benelit of Russia alone. That, I think, is very clearly Ihe proper interpretation of llial Act. And it is to be observed, in the next place, that part of its design proceeded upon the notion that the products of this region were few, limited, and OF MR. CAUTER. m exhaustible, and that therefore it was not wise that there should continue to be, even among Uussian subjects, a disastrous compe- tition for the purpose of reaping the benetits of that region. A trade of this nature, if engaged in by many lUissian subjects, would be a source of loss, and it was belter to confine it to one proprietor. These were the motives upon which the Charter of 1799 was based. In order to show the view enlerlained by Russia at this time, I may read a quotation which appears on page 18 of our Counter- Case, from a letter from the Hussian-American Company to the Russian Minister of Finance (quoting) : The nxclusive right granted to the Company in Ihe year rm imposed the nrohihition to trade it. those regions, not only npon foreigners hnt also upon Russian subjects not belonging to Ihe company. This proiiibition was agam aflirnied and more clearly defined in the new privileges granted m the year 1821, and in the regulations concerning the limits of navigation. Now the next public act of Russia in relation to this region was the celebrated Ukase of 1821, which cuts such a figure in this controversy. This Ukase was of a different character in one par- ticular : it purported to be levelled against other nations and to prohibit their interference with this trade. It will be found on page 16 of the first volume of the Appendix to the American Case. The substance of it consists of rules relating to the navigation and trade of these northern regions and the first three sections of those ruk's are the ones whicli more nearly concern us. They are as follows : Sec 1. —The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs, including the wliole of Ihe nnrtlnvest coast of America, beginning from Hehr'.ng's Straits to the ol" of northern lalitude also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Hehring's Straits to the Soutii Cape of the Island of Urup, viz., to the 40° .id' northern latitude, is exclusively granted to Russian subjects. , . , , Sec. 2. — It is therefore prohibited lo all foreign vessels not only to land on tlie coasts and islands belonging to Russia as slated above, but also to approach them within less Ihan a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. Skc. 3.— An exception to this rule is to be made in favor of vessels carried thither by heavv gales or real want of provisions, and unable to make any othershorebut such as belongs to Russia. In these cases they are obliged to produce convincing proofs of actual reason for such an exception. Ships of fiieiidly governments merely on discoveries are likewise exempt from the foregoing rule (Sec. 2). ,.,,., In this case, however, they must previously be provided with passports from the Russian Minister of the Navy. Then follows an elaborate series of rules designed to operate upon foreign vessels, and to apply to cases where there are any infractions of these prohibitions, and, where seizures and confisca- waK P^ ORAL ARGUMENT lions shall follow, providing? how tho confiscations shall be made. [Quoting again at tin- request of Sir Charles Russell | : Spc. 14. — 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 Ame- rica, in the whole extent iiereahove mentioned. A ship convicted of this trade shall he confiscated. Now here was an assertion of sovereignty over the whole shore on the Asiatic Coast, from Bering Straits down to the Island of Urup, which is about where the pointer now is [indicating the posi- tion on the map], and near the 47 Ih degree of north latitude, and it extended on the American Coast of Bering Straits down to the Jilst degree of north latitude, Ihus carrying the Russians further south on the American Coast than they were carried by the Charter of 4799, which limited them to 55". The character, therefore, of that public Act of Russia, so far as the shores were concerned, was unmistakable. It assumed absolute and entire sovereignty over them, and, as I have already pointed out, it was perfectly well sup- ported by her title, which had been acquired and established over those regions, a title just in itself and entirely acceded to in that age of discovery. \Vhat was the character of that assertion in respect to the sea, for that is the important question before us? Was it an assumption of dominion on the part of Russia over the whole of Bering Sea, and to that pari of the Pacific Ocean embrac- ed w^ithin those boundaries? Did it assume, did it purport, to be an assumption of dominion on the part of Russia over the whole of Bering Sea and of the north of the Pacific Ocean along these lines? 1 do not think that there is any evidence whatever that that was the nature or intention of the Ukase — none at all. An assumption of that kind would have been tantamount to saying that that vast extent of sea was Russia's puperty aii.I included within her terri- torv, and thcrefoi'c subjecf to her dominion and laws as such. But there is nothing in this Ukase of 1821 importing that the intention of Russia was to make any such pretension as that in the way of authority over the soa. She said this : SEf:. 1. — The pursuits of commerce, whalinn, and tishery, and of all other industry on all islands, ports, and Rulf's, including! the whole of the northwest coast of America, heginniuf,' from BerinK'sStrailstotheiii°of northern latitude, also from the Aleutian Islands lo the eastern coast of Siberia, as well as along the Kurile Islands from Bering's Straits to the South Cape of the Island of I'rup, viz, to the i',}" iiO' northern latitude, is exclusively granted to Russian subjects. Thai was a grant of colonial trade, and of colonial trade alone; that is all. And that is what Russia, according to the doctrines of that age, had a perfect right to do. Nothing was more clearly admitted at that time, than that every nation had a right to arro- *;';^^::v^-^**^-^' wm OF MR. C\IITER. 127 IS bo made. any trafflc st of Anie- )f this trade lole shore Island of the posi- de, and it 11 to the further e Cliarter refore, of rned, was :;nty over well sup- shed over to in that sorlion in icfore us? I over the 1 cinbrac- ort, to he I whole of Bse lines? that was isuniption that vast her terri- as such, that the is that in of all other i nortliwesL vn latitude, ill as alonf,' id oil rup, n subjects. de alone; ctrines of e clearly t to arro- gate to itself the exclusive benefits of trade with its colonies, and to prohibit every other nation from engaging in such trade, and to take such measures as might be necessary to enforce the exclusion of other nations. What did Russia next do ? Was there anything of the nature of sovereign dominion? Nothing of the kind. Sec. 2. — It is therefore prohibited to all foreifjfn ves.sel9 not only lo 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 conflscation along with the whole cargo. Mr, Justice Harlan. That is not an absolute doctrine now. Mr. Carter. It is an admitted doctrine now. Every na- tion has a right to claim for itself the benefits of its colonial trade. Now all that Russia undertook to do was lo adopt a meas''"c designed to protect an exclusive grant of its colonial trade, and it adopted the measure — a familiar one in Ihat age, — to interdict the approach of a foreign vessel within a cer- tain line of the coast. Now what was the reason of that? The general rule of international law which limited the sovereignty of a nation to a strip of the sea three miles in width and along its coast, was not as well known and acknowledged in that age as it is now, but it was nearly so. It was perfectly familiar at that time to the statesmen, jurists, and legislators of the world ; not perhaps so perfectly established as now — for the freedom of the seas was subject to more limitations then than now — but still it was a recognized doctrine at that time. But of course the territorial limit of a nation could not be the limit beyond which it could not exercise any power at all for the purpose of protecting an interest attached to the shore ; it would be permis- sible for a nation to preserve the right to its colonial trade by interdicting the approach of foreign vessels within a much great- er width than three miles. If a foreign vessel could come to within a short distance though more than three miles at a favorable moment for its purposes, the all benefits of the colonial trade of a nation could not be secured to that nation. A nation must be permitted to prevent vessels from hovering on the coast. The President. Do you mean in reference to offences invol- ving confiscation? Mr. Carter. What I moan to saj is that the offences which involve confiscation could be committed by coming within one hundred miles. The President. But could that be if committed outside the three mile limit? Mr. Carter. I say not only beyond the three mile limit, but R iii F5I -II 128 OIIAK ARGTMENT even beyond the hundred mile limit. Tlie treaty is silent upon that point, but that is one of the sections of the prohibition. Now, in order to show what measures were usually resorted to for the purpose of protecting colonial trade, and what measures were sanctioned, F may refer the learned Arbitrators to a decision of Chief Justice .Marshall (»f the Supreme Court of the United States in the case of Church against llubbart, which is reported in the second of Cranch's Reports, page 187. Mr. Chief Justice Marshall in that case says : Tlial the law of nations prohibits the exercise of any act of authority over a vessel in the situation of the Artroru, and that this seizure is, on that account, a mere maritime trespass not wilhin the exception, cannot be ad- mitted. To reason from the extent of the protection a nation will afford to foreigners, to the extent of the moans it may use lor its own security, does not seem to be perfectly (torrect. It is opposed by principles which are uni- versally acknowledged. The authority of a nation witliin its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyonil the limits of its territory. Upon this principle, the right of a belligerent to searcli a neutral vessel on the high seas for contraband of war is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assis- tance intended for his enemy. So too, a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all limes and in all situations. If they are such as unnecessarily to vex and harass foreign lawful connnerce, foreign nations will resist their exercise. 11' they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. In differenl i^as and on dilferent coasts a wider or more contracted range in which .o exercise the vigilance of the (iovornment will be assented to. Thus in the Channel, where a very great part of the commerce to and from all the north of Europe passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade must necessarily he re- stricted to very narrow limits; but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of t'le Government may be extended somewhat finther,and foreign nations submit to such I'egulations as are reasonable in themselves and are really necessary to secure that monopoly of colonial commerce, which is claimed by all na- tions holding distant possessions. If this riglit be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests which have sometimes ended in open war. The English, it will be well recollected, complained of the right claim- ed by Spain to search their vessels on the high seas, which was carried so far that the fiuarda Costas of that nation seized vessels not in the neigh- borhood of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was / ' OF MR. CARTER. approlmli()n. Now llicn, what was the chaiaclcr of this asscrlioii ol" aiilliorily hy Russia? Was it an asHcrlion ttl' ^('iicnil (loininioii over llic seas, ol' an extension of her territory over all llie Herin^; Sea and pari of llie Paeilic Ot.,.,ii, _ of"), lijrhl It) Icfiislate against foreign nations in respect to these seas — of a right to exclude other nations from them — was that the iiatnreof the |»retension set up? Not at all. There wt's a grant to a private company of the exclusive privilege of colonial trade to which llussia had a perh'cl title; and it was designed to prohihit any interference with that trade l»y other nations. It is ap|»arenl on the face of it. It says : " \Ve l/iere/orr interdict, hecanse we have made this grant, and for tlie purpose of protecting that grant. " Now, that interdiction may have heen reasonahle or unreasonahle; hut the doctrine upon which it was founded is jus- tilied. not only hy the practice of nations, hut hy every rule of in- ternational law, and it stands as good to-day as in that lime. I have said it may have heen reasonahle or unreasonahle. I may say that it was in the highest ilegree reasonahle. You will re- memher the (h^cision of Chief .lustice Marshall, just read, that suchan exclusion of the vessels of a nation on a frequented coast, the general pathway of commerce, would he unreasonahle, and would rot he suhmilted to hy other nations. It would interfere wilii their commerce too much. But in a distant and remote sea, a larger exclusion might he justitiahlc. For, what pur|)osc could a vessel other than Russian entering Bering Sea in 1821 have? Whaling was at that time very little if at all practised. The pro- hahilities arc that if any vessel were found in those seas it was for the purpose of engaging in trade connected with the shores, and therefore the probahility was that she was engaged in an illicit trade. The very circumstance that she was in that Russian Sea was a suspicious circumstance, and justilicd her being treated as being engaged in suspicious business. The President. You mean if the ship had been engaged in whaling? Mr. Carter. It would have applied undoubtedly to a ves- sel if her object had been whaling. It was not the intention of Russia to assume general dominion over those seas. A vessel might be whaling and be within one hundred miles of the shore without exposing herself to any suspicion of unjusti- fiable trade; but whaling was substantially unknown ai that time. The President. Whaling is the first item mentioned. Mr. Carter. Yes. The President. You establish a difference between whaling and fishing? * wm OF MH. CARTEn. Ml Mr. Garter. I think llio fair iiiUM'protalion of llitil grunt docs not inoliulo whaling. The President. Itul lishing in the upon hcu would not be interdicted? Mr. Carter. I think the inlonlict is oonfinod to what is dono on the coasts (quoting again) : Ski;. 1. — Tlin pursuits of comnierr.e, whaling', and fishery, anti of nil other iiulustry on all islands, puils, and fault's including the whole of the northwest coast of America, hef{inninfi tioni Hi'lirin^'s Straits to the iii' of northern latitude, also from the Aleutian Islands to the eaHtcrn coast of Sihe- ria, as well as alon^ the Kurile Islands from Hehrin^'s Straits to the South Capo of the Island of Urup, viz, to th(! V.ioSO' northern latitude, is exclusively ^'runted to Hussiuu suhjecls. That is a grant to the exclusive pursuit of commerce, whal- ing, fishery, and all other industries on all islands, ports, and f/ulfs. The President. The hundred-mile limit is for the hovering? Mr. Garter. The hundred-mile limit is for the purpose of preventing infractions. The President. But they must come to the coasts? Mr. Carter. The mere coming within one hundred miles would be an infraction. But you must separate the grant from the measure of protection which was contrived for the purpose of secur- ing the grant. The grant is one thing, the measure is another. Her mere presence there is a violation. Now, 1 have said that upon the face of this Ukase it does not purport to assume dominion over any part of the sea; it purports only to (establish a defensive and self-protecting regulation which is to operate over one hun- dred miles of the sea. And let me say right here, as it appears to be interesting the Arbitrators, that such things were extremely common and are found at the present day. For instance, every nation has its custom laws, and of course there are universally carried on operations to evade those laws ; and one manner of doing this is for a vessel having a cargo of goods on board to come and hover on the coast of a nation until another vessel comes out and transships her cargo. Now, a nation must have the privilege of preventing this in some way ; and if a nation were not permit- ted to exclude the smuggler for more than three miles from the coast, she would be almost defenceless against it. And therefore nations must have some manner of preventing vessels from com- ing within sight of the shore. Justice Harlan. Is your argument to the first and third points of the Articles of the Treaty? Mr. Carter. My point is confined to an explanation of the ^^.^i^tiki.. tn OHAI, AliCUMKNT m.l nature of this prohiliitiou fonlained in Iho Hussian Ukase of Justice Harlan. I am spoakinf? of the first point of Article VI of the Treaty; il does n(.i require attention from Hie Arbitrators, because it relates (o Itussia. Mr. Carter. W<'li, it is a part of my arf,Miment not only to show thai Uussiadid assert the exercise of a self-defensive power, but also the rightfulness of the assertion. It is not important to urge it, but it is a fair part of the discussion. It may he well contended lluit not only did Hussia nnike this assertitm, hut that it was a rightful one. For the jjurpose of showing that, let mo speak of the hovering acts. The laws and statutes of (Ircat llrilain — Mr. Phelps. And France. Mr. Carter. Aiid France as well, for the prevention of smug- gling, forbid a vessel from hovering on the coast. They prohibited any vessel, foreign or other, from hovering there; and the penalty for hovering within four miles is capture and conliscaiion. Sir Charles Ruosel. Four leagues. Mr. Carter. Four leagues — the penalty is capture and confis- cation. It is the universal penalty. So, also, there are quaran- tine laws, which under certain circumstances require vessels at certain times to come to at a distance from the shore much fur- ther out than throe miles, and await a boarding vessel there; and the penalty for a violation of such enactments is always capture and confiscation. So that this instance of an exercise of authority by Russia operative over a belt of the sea beyond the limits of three miles is not an exceptional exercise of authority, but one commonly resonod to, and always resorted to when there was the necessity for a dek nsive and protective measure of that character. I will not go any further into that discussion at this time. What I h ive thus far said goes to show that that is the nature of this reg,ulation on the face ot it. I have now to point out to the learned Arbitrators that that was the view taken of it by Russia at the time; for when it was pro- tested against by Mr. John Quincy Adams, then Secretary of State of the United States, this was the explanation, or part of the expla- nation, given by the Russian Government. I read from the note of Monsieur de Poletica to Mr. Adams, on page 133, Volume first of the American Appendix : I shall be more succint, sir, in the exposition of the motives which deter- mined the Imperial Government to prohibit foreign vessels from approachinR the northwest coast of America belonging to Russia within the distance of at OF MH. CARTKn. <33 ase of least (00 Italian miles. Thi)) moiisiire, however severe it may at fliHt appear, is, after all, but a measure of prevention. II is exclusively directed aKainst the culpable eul'Mfirises of foreign adventurers, who, not content with exer- cisiuK upon the coasts above mentioned an illicit trade very pre,u*licial to the rights reserved entirely to the Kussian American Cotnpany, take upon them liesides to furnisli arms and ammunition to the natives in the Kussiaii possessions in America, exciting Iheni likewise in every manner to resist and revolt against the authorities there established. The American Government doubtless recollects that the irregular c(uulucl of these adventurers, the majority of wiiom was comi)osed of .\merican cuizeus, has been the object of I ho most pressing,' remonstrances on the part of Russia to the Federal (iovernment from the time that diplomatic missiuus were orpani/.ed between the coimtries. These remonstrances, repeated ut different times, remain constantly wjlhoul eiftHt, and the inconvi-niences to which they ouf;bt to bring u remedy continue to increase Pacific means not having brought any allevialiDU to the just grievances of the Russian Amer- ican Company against foreign navigatois in the waters which environ their establisinuents on the northwest coasts of America, the Imperial (Jovernnuint .saw itself under the necessity of having recourse to the means of coercion, and of measuring the rigor according to the inveterate character of the evil to which it wished to put a stop I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend, on the northwest coast of America, from Behring's Strait to tlia fifty-flrst degree of north latitude, and on llui opposite side of Asia and the islands adjacent, from the same strait to the forty-nil h degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut sean (mers fermees), and the Russian (iovernment might consequently Judge itself authorized to exercise upon this sea the right of sovereignty, and espe- cially that of entirely interdicting the entrance of foreigners. Hut it prefer- red only asserting its essential rights, without taking any adwiutage of loca- lities. expla- e note le first I deter- )aching :e of at Wchave not only the fair interpretation of the Ukase itself, but \ the express declaration of the Russian (Jovcrnment, that this oro- hibition of the entry of foreign vessels withi'i 100 miles along the shores of this whole coast was not designed as an assertion of sovereign dominion at all, but only to defend the colonial trade of Russia against illicit invasions of it by foreigners. Mr. Middleton,the American Minister at St. Petersburg at that time, addresses a note to Mr. Adams in which he says that this is the purpose which the Russian Government had in view in making the declaration of this Ukase. I read an extract from a letter of Mr. Middleton to Mr. Adams, found on page 13i) of the first volume of our Appendix : To Mr. Speransky, flovernor General of Siberia, who had been one of the committee originating this measure, I stated my objections at length. He informed me that the llrst intention had been (as Mr. Poletica afterwards wrote you) to declare the northern portion of the Pacific Ocean mare clausum, but that idea being abandoned, probably on account of its extravagance, they determined to adopt the more moderate measure of establishing limits to the <^ ♦ ' ! wl 1 i \ h- ill-: ORAL ARGUMENT. niuritime jurisdiction on their coasts, such as should secure to the B'::asian American Fur Company 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 iOO Italian miles, suflicient for all purposes. The President. Is there any evidence iliat you know of that the Russians at any time previously to t-liat correspondence, had asserted the right o^ inarr clausmn, the right of sovereignty to the Bering Sea? Mr. Carter. None whatever, neither before nor since, in my view, unless this Ukase constitutes an assertion of authority; whicii I do not think it does. The President. It was a position which they might have assumed, but it b^ems they stale that they do not assert it. Mr. Carter Yes, they suggested that they had the right to assert it. But they protest that they have not asserted it in fact. Having described this Ukase of 18:21, and the nature of it such as it appears to be from a fair interpretation of the face of it, and from the declarations made by the Russian (iovernmcnt in reference to it, I next proceed to call the attention of the Arbitrators to the notice which was taken of it by the An.srican and the British Governments. The particular subject of the protests I shall post- pone for a fcAv moments for the purpose of dealing more particu- larly with the question of the rights of Russia in or over Bering Sea and its shores, what they were, and the place which they fill in argument I. ere, and in the questions submitted to the Tribunal. We see what the claim of Russia was by this Ukase of 1821; that it was an assertion, not of the right of sovereignty, but of the right to establish a protective regulation, oper!'tive indeed at a greater distance than three miles from the shore. I have, in the course of pointing that out, somewhat briefly alluded to the dis- tinction between the exercise of full and sovereign domii ion of a nation over the sea, or over land, as far as tliat goes, aim the exercise of a self-protecting power, such as a defensive regulation of this sort is. 1 wish to follow up those observations a little further, for the purpose of lixing in the minds of the Arbitrators the real nature of these two ditferent things and of their essentia! differences. What is full dominion or sovereignty such as is exercised by a nation? What is it? A full right of sovereignty includes, of course, a full right of property over all the territory to which that sovereignty extends. When I say a full right of property, 1 mean of absolute property in the territory over which it extends. That is included in the idea of sovereignty; and it includes in the next place — (lio B'^asian fflc they carry he distance of lated at about now of that ndencc, had Mgnty to the ince, in my authority; might have nl it. the right to it in fact, ire of it such ce of it, and in reference 'atoi's to the the British I shall post- lore particu- !r Bering Sea h they fill in ! Tribunal. Lase of 1821; y, but of the indeed at a have, in the 1 to the dis- )mii ion of a )es, ami the e regulation ions a little ■bit ra tors the jir essentia! is exercised ity includes, )ry to which of property, r which it rity; and it OF MR. The President. You do not mean property in the civil Mr. Garter. I do mean property in the civil sense; but I ought perhaps to explain that. Take the private properly in the land of any particular country. Writers on the law of property separate property interests into two parts. One of the.i. thoy call the dominium utih', and the other the dominmm eminens. The dominium utile, is the right to use and enjoy; and it is that, and that only, which is vested in private individuals. The domi- nium eminens means the absolute property, by an exercise of which a nation can at any time displace the individual right. That dominium eminens is vested in the sovereign power alone,, in the Government; and it is that sovereign right of property wlu'jh I mean when I say that sovereignty embraces the full property right in the territory over which it extends. In the next place, it embraces the right of legislation >^.cr the whole territory, the right of legislation in respect to persons and things, and consequently the power of excluding any foreign nation or its citizens from any part of the domain which it covers. It embraces the full right of (io/ernment; and that is necessa- rily exclusive of every other Government. No other Government can make a s ngle regulation which has any binding force upon the territory of a foreign power. This riglit of sovereignty, embracing both properly and the right of legislation, is necessarily limited by a rigid boundary line. Tiiat is one characteristic of sovereignty; it must be li- mited by a rigid boundary line. Property cannot exist unless it is specified and described; and, of course, the limits of the laws of a Government must be absolutely and precisely known ; they cannot shift and vary according to circumstances. It is, therefore, the characteristic of this full sovereignty which a nation possesses over its territory that it is limited rigidly by a boundary line, and that right of sovereignty is possessed by the nation as a Goyernment, as an orgaiii/ed community en- gaged in the business of administering the laws and welfare of the territory over which it extends. There is another class of rights which a nation may enjoy and does onjoy, not thus rigidly limited by a boundary line, but which it may exercise wherever it goes in its capacity a an individual. First let me mention the great right of self-defec that accompa- nies a nation wherever it goes and may be exej oi- 3d by a nation, not because it is a Government, but because it is an individual. It exercises this right of self-defence much as an individual exercises it. All of us have the same right of self-defence, not because we have any Governmental power, but because we are persons who , rr 136 OHAL aiu;lment have rights, and that is one of them. Just so it is with nations; wherever they have a right to he, lliere they can exercise those powers which are necessary to protect them as persons. In addition to protecting themselves as persons lliey may pro- tect their properly. Nations iwing corporate persons, not natural persons, can scarcely he touched outside the limits of their ter- ritory except in llie way of touching their property. I say those rights of self-protection may be exercised by a nation wherever the nation lias a right to be; and a nation has a right to be any- where upod the high seas. A nation goes wherever its property goes, from one end of tlie world to the other, and it exists as a nation until it reaches the boundaries of some other nation. It cannot pass those. But on the high seas all the nations of the world exist together. They are citizens together upon ttiose seas. Their commerce goes upon those seas, and wherever their citizens and their commerce go, there the nation goes, there its power goes, as an individual. There, if its properly is attacked or its citizens are attacked, it lias a right to defend them. It has the great right of self-defence, and it has a right to use just such means and meth- ods and weapons as are necessary fully and perfectly to protect itself. That is not because it is a government, but because it is an individual. It has a right to be on the gr^at highway of nations, to go there with its interests, and if it could not protect its inte- rests, how could they be protected at all? Take the case of a lleet of American merchantmen which might be convoyed by an Ameri- can man-of-war. Suppose it should be attacked somewhere on the high seas. Can it not be defended? What is the man-of-war convoying them for, except for the |)urposes of defence? Wher- ever upon the seas a nation's property is, if that property is in any manner assailed, it must protect it. Commerce could not exist; the intercourse of nations could not subsist, except upon these principles. Let it he supposed that the citizens of some foreign nation should commit a trespass upon the property of citizens of the United States somewhere upon the high seas, and the owners of that properly should make complaint to their own Covernment, and that Covernment should go fo the nation to which the Ires- passers belonged, and complain and say : " The citizens of your nation have been injuring the property of our citizens on the high seas; we ask you to make redress ". The answer would be : " Can you not protect your own citizens. Have you not just as much power to protect your citizens on the high seas as we have? If a trespass was attempted against them, why did they not resist and beat olf the trespassers, and if they were not able to do that they may resort to the courts of any nation in the world to obtain their redress ". OF MR. CARTER. 137 But these principles do not rest upon any theoretic statement. They have been universally admitted in the practice of nations; and it is absolutely true — there is no sort of qualification to the proposition — that wherever a nation has found it necessary to exert acts of force upon the high seas in order to protect its own riglils or the rights of its citizens, it has the right to exert such acts of force. There are many illustrations of it. Many of them arise — because that is where the occasion most frequently arises — under belligerent conditions. Suppose there is a war between the United States and Great Britain, and a port of the United States is blockaded and a British vessel IJnds a vessel belonging to France attempting to enter that blockaded port. What does she (lo? She captures her and carries her in for condemnation. Why? Here is a French vessel, friendly to both powers, not designing to injure either one of them, engaged in peaceful commerce, not directly aiding or assisting the belligerents; and yet when she attempts to enter the port of one of them with whom she is a friend, the other who is also a friend, takes her and captures her. How is that to be defended? It is defended on the ground of necessity. Great Britain says : " I am carrying on a war with the United States; I am endeavoring lo subdue the United States, and to compel her to come to peace with me. 1 have a right to reduce her to extremity; and here you are carrying in provisions, or what not, and thus helping to prolong the war and prevent me from subduing my enemy, — which 1 have right to do — and, therefore, I take you and capture you on the iiigh seas. " The case of contra- band goods is the same. A v<'ssel is found on the high seas, not attempting to enter any blockaded port, but bound to one of the belligerant ports and having on board contraband of war. W^hat is done? She is taken and captured becau-c it is necessary. She is attempting to assist an enemy. That is, she is doing iicts which would amount to an assistance and which render the oper- ations of one of the belligerent parties less ellective. It is admitted in international law that when two nations arc at war their rights in certain particulars are supreme over other nations, and they have a right to do these acts upon the high seas because they are necessary for self-defence and self protection. I speak here of belligerent conditions; let me pass to other condi- tions — peaceful conditions — some of those to which 1 have already alluded, a defence of co'onial trade. The territory of a nation does not extend more than three miles beyond its coast. We know that. A nation cannot extend its system of law beyond that three miles. We know that; but nevertheless it has a right, as a person, to exert any power of self-defence against threatened invasion of its inter-ests by other w~^ 138 ORAL AR^.UMENT persons, and it has a right to do all acts which are necessary for that purpose. The line up to which it may exercise its authority is not a boundary line upon the earth's surface, but it is a line limited by necessity, and by necessity alone. The right is created by necessity, and of course has no other limit than the necessity which creates it. The same 's the case with all those municipal laws of various nations designed to prevent smuggling. They are enforced the world over, have been enforced for centuries, and are to-day. They purport to be municipal regulations, municipal laws. They are municipal laws in every sense of the word. The hovering statutes of Great Britain, forbidding a vessel to hover within four leagues of her coast, are binding upon her own citizens because they are laws. Are they binding upon other nations because they are laws? No, they are binding upon other nations because lliey are defensive acts of force which she has a right to exert. She would be quite right to exert them even if the laws had not been passed. If Great Britain had no hover- ing law upon her statute book, she would have a right to give instructions to her cruisers to prevent vessels hovering upon her coast under circumstances calculated to excite suspicion that they were engaged in smuggling; and if other powers should complain of that, the only question wouldbe whether it was reasonable ornot. Great Britain, being a constitutional Government, of course cannot very well capture vessels upon the high seas, carry them in and libel them in her courts for condemnation, without a system of municipal law providing for it. Neither can the United States. In such countries, not under an absolute Government, it is neces- sary to have enactments of municipal law for the purpose of governing seizures in the case of condemnation. These methods are all prescribed by municipal laws. These municipal laws are perfectey valid and binding — valid and binding as laws upon the citizens of the nation enacting the, valid and binding upon citizens of other states, not as laws, but because they are reasonable for the exercise of a self-defensive power. The circumstance that they are enacted into laws does not, of course, take away from them their validity. It only serves to render them more reasonable, because it subjects foreign citizens only to the same rule to which the citizens of the country them- selves are subjected. Quarantine regulations are of the same character. A nation must have the right to protect itself against the entrance of contagious disease. No people in the world, on the ground that the seas are free, have a right to bring disease into dangerous proximity to the coasts of another nation; and if for the purpose of keeping infection clear of coasts, it were necessary \ OF MR. CARTER. 139 essary for authority is a line is created necessity of various orced the re to-day. pal laws, le word, vessel to upon her ing- upon ding' upon ivhich she hem even no hover- it to give upon her that they complain ble or not. cse cannot sm in and system of ed States. t is neces- •urpose of e methods laws are 3 upon the )n citizens onable for does not, ' serves to ^n citizens itry them- the same jlf against world, on iseascinto and if for necessary to keep vessels 100 miles off the coast, the right to do it would exist. There is no such thing as universal rules in international law, or in respect to the freedom of the seas, as there are no universal rules in respect lo anything. Everything in the world depends upon circumstances. Whatever right, whatever acts of power, it is necessary for a nation to assert upon the high seas in order to protect its own essential interests, if Ihey are fair, if they are moderate, if they are reasonable, if they are suited to the exigencies of the case, if they do not transcend the necessity which creates them, they are valid, and all other nations in the world are bound to respect them. The President. If I understand you aright, your contention would be that the action of nations on the high seas is founded on the same principles in time of war as in time of peace? Mr. Carter. Precisely. My position cannot be better stated than that. What gives these extraordinary rights to nations in times of war, is necessity — the necessity of self-defence. The same necessity can arise in times of peace just as well, and when- ever it does arise, it demands the same remedies, and the same remedies are applied. The President. Would you like to rest awhile, Mr. Carter? Mr. Carter. No, I am not at all tired. The President. The manner in which you express your views interests us very highly. Mr. Carter. I thank you. This right of self-defence, which I assert and which is so enti- rely different from the right of sovereign jurisdiction, does not militate at all against the freedom of the seas. It asserts the freedom of the seas. It is exceptional in its character. It asserts the general rule of the freedom of the seas, but says, notwithstanding that freedom, there are instances in which all nations are sub- jected to certain necessities, and those necessities beget and create the authority to use reasonable measures of defense and protec- tion. All reasonable nations will accede to them and do accede lo them, and, consequently, they have had their place in all time on the statute books of nations, and have never yet led to contention except in cases where they were really unreasonable, or supposed to be so. Senator Morgan. Mr. Carter, I believe that you have not as yet read that part of the correspon^'ence between the two Govern- ments relating to the question of an assumption of damages in this treaty for trespasses alleged to have been committed against the Government of the United States. Mr. Carter. No ; I have not. Senator Morgan. I wanted to ask you if, in the corrcspon- .---;V!^yTiT:s m ORAL ARGUMENT Iff }.n dence that led up to this troaiy, Great Britain did not refuse to admit her liahility for any trespasses by her uatiouals upon the property of the United States? Mr. Carter. Well, perhaps she did. Sir Charles Russell. Certainly she did. Senator Morgan. She did refuse? Sir Charles Russell. Certainly. Senator Morgan. And that was the reason why a claim for da- mages on thcpartof the UnitedStates was excluded from thistreaty. Mr. Carter. At a later stage in my argument I shall deal with that matter; but it does not seem to me to be especially rele- vant here. Senator Morgan. It seems to my mind to be exactly in point, if you will allow mo. Therefore, I ask the question; if Great Britain refuses such responsability for trepasses by her nationals on the high seas must it not follow if the United States were the owners of this property, and if (Jreat Britain has refused to become responsible for the trespass by her subjects or nationals, the United States may prevent the trespass and the consequent damage which they would otherwise suffer. Mr. Carter. In my judgment the United States has the power to prevent the trespass and the consequent damage, whether Great Britain is willing to answer for the damages or not. : Senator Morgan. In this case I am trying to get at the his- tory of it. That matter had been under discussion, and Great Britain had refused to become responsible for the trespasses of her nationals. Sir Charles Russell. She denied that there was any trespass upon the property of the United States. Senator Morgan. 1 understand that. My question is predica- ted upon the supposition that there was a trespass. It was the property of the UnitedStates, and if there was a trespass, has not Great Britain in this very negotiation refused to become respon- sible, and excluded it from this treaty on that account? That is the point I wanted to get at. Mr. Carter. I believe that to have been the case. Senator Morgan. I think that is pertinent. Mr. Carter. In my view it is not among those things which in my mind are pertinent to the present discussion ; and, of course, I cannot very well argue myself, except by employing those grounds and reasons which in my mind seem to be material. Senator Morgan. I was only claiming the right to have the difficulty in my mind cleared up. The President. Perhaps the counsel on either side will clear the matter up later on. OF MR. CAUTER. 141 refuse to upon the im forda- his treaty, shall deal ially rele- jxactly in a ; if Great nationals were the to become )nals, the it damage the power ther Groat t the his- md Great spasses of y trespass s predica- t was the s, has not e respon- ' That is which in of course, le grounds have the will clear Senator Morgan. I trust I am not too early with the sugges- tion, because it is an important matter in the case, and 1 shall expect to hear argument upon it on both sides. Mr. Carter. I willgiveto thatquestion theattention which, from the interrogatory of 'he learned Arbitrator, it seems to deserve. I have said that this position, which I am seeking to maintain, of the right to self-protection as distinguisched from any assertion of sovereignty, is not in conflict with the ordinary doctrine of the freedom of the seas in any particular. It admits that doctrine, stands upon it, asserts it only as exceptional, justifiable in cases of necessity, and then justifiable only up to the extent of that necessi- ty ; but, in respect to the freedom of the seas, the position which we maintain does assert one thing, with positiveness. That is, that however free the seas may be in the just sense of the word, they are not free anywhere, in any quarter of the globe, at any dis- tance from the shore — three miles or three hundred miles — for the commission of wrong, and whether a thing is wrong or not when commited on the high seas is just as easily determinable as it would be if the dominion of some municipal power extended over it. In other words, our position is that there is no part of the globe, on the sea or on the land, that is not under the dominion of law, and under the dominion of a law which the courts of every nation will take notict of, even the municipal tribunals, and under the dominion of a law which this Tribunal, as an inter- national one, will particularly take notice of. I have been thus explicit upon this subject, and have devoted to it the attention I have, for the reason that I think there has been considerable confusion about it. There is a confusion in relation to it in the opinions of writers upon international law. They have not, as a general rule, pointed out these two distinct and different species of authority which a nation may exercise. They have not clearly defined them. They have not placed upon them the limitations which clearly attach to them. There is a confusion about them in the discussions of diploma- tists. There is a good deal of confusion on those two subjects in the diplomatic communications between Great Britain and America in respect to the subjects of this controversy. That confusion has found its way into the terms of the Treaty itself, and will be found in the phraseology of the questions which are submitted to this Tribunal. That confusion has arisen to a very considerable extent from the use of an ambiguous word — " jurisdiction " — to cha- racterize and define botV. things. Both thei^e species of authority are spoken of by jurists, by lawyers, in text h ;oks and elsewhere, under the general name of jurisdiction, ^d thus that word has become one of ambiguous import. mm/mm OR\L ARGUMENT The word " jurisdiction " has sometimes been used, when we speak, of the jurisdiction of a nation, in a certain narrow and rigid sense as describing the sovereign right of legislation; that is to say, as describing that authority the exercise of which is necessarily limited by a boundary line. It has been used sometimes in that narrow sense, aiM at other limes it has been used to describe any act of authority which a nation might perform, whether within that line or outside of it. A similar ambiguity is found in the use of the word "jurisdiction" in relation to matters of municipal law. We sometimes speak of a court having jurisdiction in a particular controversy. Tliat means that it has just authority to inquire into the merits of the controversy and to dispose of those merits by a defmitive judgment. It means that generally ; but we some- times say, also, that a court has jurisdiction to do a certain thing, meaning by it that it has the power to do a certain thing. We sometimes speak of the jurisdiction of a municipal officer merely to describe the power of the officer. We say that a taxing officer has the jurisdiction to assess persons for taxation. We mean by it that he has the power to do it, and that is all we mean. " Juris- diction " has no proper application to such an authority as that; and it is from this ambiguous use of this word that much of the doubt and difficulty respecting the subject have arisen. What has been the claim of the United States in the course of this controversy in respect to the nature of the authority acquired by Russia in Boring Sea, and of the rights which Russia had gained in that sea, and the rights the United States has, consequently, gained by the acquisition of Alaska from her? lias the United States ever maintained at any time in the course of this contro- versy that Russia had acquired a dominion over Bering Sea, as if that sea were a part of her territory and that the United States had, in consequence, as the successor of Russia, acquired such right as that? Has the United States ever made any such claim as that? Never. At no time in the course of this controversy has it ever made any claim of that sort, or hinted a claim of that sort. It has always put its case upon other and very different grounds; namely, that Russia had property interests— interests in the nature of colo- nial trade and other industries— carried on on the shore of Bering Sea, which gave her a right to adopt protective measures which might be operative, indeed, over a reasonable extent of the sea as defensive measures ; and that such a right as that the United States has also, not because it acquired it from Russia— because it would have it without any such acquisition; the only aid that it has asserted as having been derived from Russia was the fact that Russia had established these protective regulations in Bering Sea, and that other nations of the world, including Great Britain, had OF MR. CARTER. 148 when wp and rigid Ihat is to ecessarily es in that scribe any ler within in the use icipal law. particular inquire ose merits we some- ain thing, ling. We icr merely ing officer e mean by " Juris- ,y as ihat; uch of the ; course of y acquired lad gained sequently, he United lis contro- Sea, as if States had, ch right as tn as that ? has it ever rt. It has s; namely, ire of colo- e of Bering ires which f the sea as the United -because it aid that it lie fact that iering Sea, ritain. had acquiesced in them ; and that Great Britain was not now in a con- dition to complain of them. It has been, however, the effort — I say the effort; I suppose it has been llie belief — of the learned counsel who have had the interests of (Ircat Britain in charge, to impute; to the United States the position of asserting that they had derived from Hussia a dominion in Bering Sea — a sovereign dominion over that sea. That position has been imputed to the United States in the Case of Great Britain, and industriously imputed to it. I do not think there has ever been any good foundation for that. In the Case of Great Bri/iin, page 134, there is a quite formal statement of the several positions which, according to fliat Case, the United States have taken in reference to this controversy. I read from that : The facts slated in this chapter show that the original ground upon which the vessels seized in 1880 and 1887 were condemned, was that Itehriiig Sea was a mare clausum, an inland sea, and as sucli had been conveyed in part by Russia to the United States : thai this ground was subsequently entirely abandoned, but a claim was then made to exclusive Jurisdiction over one hundred miles from the coast line of the United States territory : that, sub- sequently, a further claim has been set up, to the effect that the United States have property in and a right of protection over, fur-seals in non- territorial waters. That is the description in the Case of Great Britain of the positions which have been from time to time taken by the United States in reference to this controversy. It is a total error. As to the first part of it, there is to a certain extent, a foundation for the statement. The first part is " that the original ground upon which the vessels seized in 1886 and 1887 were condemned was that Behring Sea was a mare clausum, an inland sea, and as such had been conveyed in part by Russia to the United States. " That does not say that the United States ever took that posi- tion. It only says that that was the ground upon which the vessels had been condemned. But I think the intent \^p.s to convey the notion that that was the attitude taken by the U lited States. The paragraph would be meaningless had it not that intent. It is literally true that libels were filed, in the cases of the first seizures, against the British vessels in the United Stales District Court of Alaska, and that they were condemned ; and the judge in his charge to the jury, or in his opinion giving judgment, went into the case and stated that Russia by this Ukase had acquired a territorial dominion in Bering Sea. He stated that in his opinion — but has a judge in the United State? District Court of Alaska an authority to speak in an international liif iAi«tJM>MVIi#ni 14i ORAL ARGUMENT controversy on behalf of llio United Stoles? Certainly none whatever. The position of the I'nited States cannot be gathered from what a judge of a United States court happens to say in a charge to the jury. If ii can, the United Stales would be responsibh; for the utterances of every twopenny justice of the peace throughout the land; which she would be very sorry to be. Whern is the p(»sition of the United States in reference to this controversy to besought and found? In the utterances, the respon- sible utterances, of that (lovernment made to Great Britain in di- plomatic form. There is the place, and the only place, where they can properly be sought. The President. !><» you not think a Government is respon- sible to other nations for its judges? Mr. Carter. To a certain extent, it is ; and to a certain extent, it it not. The President. You must take the nation as a whole. Mr. Justice Harlan, .ludges in the United States arc indepen- dent of the Government. The President. Not as a nation? Mr. Justice Harlan. Yes ; they are independent of the nation. Mr. Carter. If a French citizen should Jiave the misfortune to be involved in litigation in the United Stales, and a judgment should be pronovmced against him which he did not like, and he should appeal to his own Government, and say he did not like it, and the Government should appeal to the United Slates, he would be told that he had no remedy ; that the Government of the United States was not responsible for the conclusions lo which the judges came. They might be law; they might not be law. He had had a fair trial; he had had the same opportunity which citizens of the United States have, and that is all the United Slates could give him ; and I apprehend a similar answer would be made by the Government of France in a similar case. The President. I am not quite sure as to that. Mr. Carter. I do not know about France, but I am very sure that is the answer which would be given by Great Britain in a similar case. The President. It is a rather difficult, and often-discussed point of international law, as to what is the responsibility of a nation. Mr. Carter. Every Government is, of course, responsible in a certain sense to foreign nations, that the citizens of foreign nations, when they happen to fall within the reach of justice, shall obtain justice. That is, that they shall obtain the same sort of justice which is administered to the citizens of the country. That is the extent of the foreign obligation. / ' OK Mil. CAHTEH. lij linly none c gathered to say in would be lice of the )rry to be. nee to this he respon- itain in di- ice, where de. re indepen- Ihe nation, sfortune to judgment iivc, and he not like it, s, he would ' the United the judges e had had a izens of the could give lade by the n very sure Britain in a n-discussed libility of a sponsible in 3 of foreign ustice, shall ame sort of ntry. That Sir Charles Russell. You hiive got a Itrilisli ship on the ground of that judgment. Mr. Carter. It is no more than a suit against a Urilish citizen. Tiuit is all it amounts to. I'-'opcrty of IJritisli citizens its ulla- ched. That is all the suit amounts to, and all that the United Stales is bound to do is to see that justice is done. The course of procedure in the United States must be followed. If the judgment of the United States District Court of Alaska was complained of, there was an opportunity lo appeal to and obtain the judgment of the highest court in the land. No complaint could be made until that procedure had been followed and run out to its conclu- sion. It was not done. So no complaint could be made of that judgment, nor could the grounds upon which that judgment was rendered be in any manner imputed to the United Stales. The President. 1 think we had better consider that as a par- ticular question, which we will argue when it comes up later in the case. Mr. Carter. Very well. Where are we to look for the true grounds upon which the United Stales based its position in these controversies? Why, obviously, to the diplomatic communica- tions. The British (Government did protest to the United States that this course was pursued, and that it was pursued by Ihe au- thority of the United States in giving instructions to her cruisers; and they ask now " Tell us the authority upon which you pro- ceed. " That was the demand of the British Govrrnmenl — very properly made — " We want to know from you, not from a District judge up in Alaska, but from you, who have the authority to state, what your grounds are. It is from you that we wish to know the grounds upon which you presume to seize British vessels. " That demand was made; and what was the answer to it? for there is where you are to look to ascertain what the position is which the United States Government takes. Therefore, I must again call the attention of the arbitrators to the response which was first made to these demands. The President. Do you mean to enter on a new subject? Mr. Carter. I perceive that the hour of adjournment has about arrived; and the citations, I might perhaps as well leave I am going to read for the next session. The President. We will meet on next Tuesday mornig, at half pastil o'clock. [The Tribunal accordingly adjourned.] 10 '""^WaSSPHRi"-' I I TENTH r)A\, APRIL 18^". 189.'!. ! I ! I The Tribunal mot pursuant to adjournment. The President. Heforc Mr. Cartor proceeds, I would bog to offer an observation. In the conrse of the last sitting we had, I might almost say, some conversation about a delicate matter, a matter, which is the subject of much controversy in international law — that of the responsibility of nations for llieir justice, or for the jus- tice that is administered by them. I beg to remark that my inten- tion was not at all to e.xpress any opinion. I merely wanted to know the extent and purport of the contention of the party concerned. I believe that whenever one of us addressees one of the learned coun- sel on either side it is always with the intention of ascertaining how far the intention and the contention of both parties, or of either parly, go, and not at all to express a personal opinion, which of course on our bench we are not called upon to do; and since in this particular case if the words which have been pronounced were misconstrued, it is much less our intention to express any opi- nion which would be considered as binding upon the respective countries or governments to which either of us may happen to belong. It is in reference to the words which I spoke of in our last sitting that 1 think it necessary to make this remark. Mr. Carter. I so understood the learned President. The President. Mr. Carter, if you please to proceed, we will be glad to hear you. Mr. Carter. Mr. President , my attention has been called to a copy uf the London Times of Monday which contains some reference to my argument of Friday, and in certain respects misrepresented me to such an extent that I feel hardly at liberty to pass it without notice. I cannot, of course, think myself called upon to correct all misrepresentations of what I may say which may be found in the journals of the day; and I should not say a word in reference to this except that it represented me as maliing some very disparaging allusions to a distinguished and very worthy judge of a high court of the United States — I mean the District Judge of the United States for the district of Alaska. I made no observation whatever disparaging to him. I did indeed say that OHAL AIir.I'MKM' OF MU. CAHTKR. 147 i«g to olTor I, I might a mailer, tal law — 1)1' Iho jus- my intcn- ?d lo know onccrned. [•ncd coun- linlng how r of either , which of id since in meed were 5 any opi- respcctive happen to e of in our lark. it. ed, we will been culled itains some in respects y at liberty lysclf called r say which d not say a e as making very worthy the District I made no eed say that Iho (lovernmenl of Ihe I'nilcd Shilcs could not he held responsible for the grounds and reasons which judges assign in the decisions which Ihcy mighl give ; lliul, if that wen? Ihe case, the (ioverinnenl niiglit be held responsible for Ihe tillerances as I said — and Ihe observation mighl in good lasle luiv(^ been heller wilhheld — of any Iwo-penny justice of the peace. IJut, i of course, did not a|)ply Ihal observation lo .Indge Dawson, or intend in amy manner to nuike any disparaging reference lo him. I did not even say that his judgment was incorrect. On the contrary, his judgment, so far as related lo Ihe condemnation of the vessel, was a sound and cori-ect judgment, which in tiie due course of my argument, I sluill endeavor lo defend; and I have no doobt it would have been affirmed to that extend i)y Ihe Supreme Court of the United Slates. Noi' (lid i, in saying that Ihe (lovernmenl of Ihe United States was not responsible for the grounds slated by judges in their o[)inions as the basis of liioir decision, intend lo intimate that Ihe (lovern- menl was not to a certain extent responsible lo other nations for the correctness of the judgments themselves. The (lovern- menl of the United States is, I suppose, responsible lo oilier nations that the citizens of other nations shall have justice done tlu'in in the courts; but it is the correctness of the judgments for which they are responsible, not the soundness of the opinions which are given as the basis for tiiom. My argument on Friday was directed in the main to the ques- tion of the rights which had been acquired by Russia in the Bering Sea and transmitted by her to the United Slates by means of Ihe cession of 1867. I had made a brief historical sketch of wliil may be called the Russian pretentions, closing that sketch with a statement of the Ukase of 1821 and of its real nature. I then came to consider the view which the United States take in ' relation to the Ukase of 1821 and the rights which might have been acquired under it; and I slated that, according to the views' of the United States, that Ukase never asserted a right of sover- eign dominion over any part of Bering Sea, but that its sole purpose, intention and effect were to asser-t a right to protect industries connected with the shore by protective regulations operative over a certain portion of the sea — a thing quite dif- ferent from any assertion of sovereign dominion. I said that that was the view taken by the United States and which always had been taken by .he United Slates; and it was in that connection that I observed that although a somewhat different view had been taken by the learned District Judge of Alaska the United States had never adopted that view in its diplomatic eommunications with Great Britain. 1 further said that there was an endeavor in the British Case to • '1 in' m I t num /fn^r ^wi M— ^ ■--' U8 ORAL ARGUMENT m impute to the United Stales the view that Russia had acquired a sovereign dominion over that sea, intimating that the United States had originally based its position upon that view and had afterwards shifted its ground. That assertion I denied, and it was at that point that the Tribunal rose. It is my purpose now to support that denial, and to say that, from the first, the United States took but one position in reference to this matter and have retained it at all times during the controversy. In order to show this I call the attention of the Tribunal to Lord Salisbury's complaint, which will be found at page 162 of the first volume of the American Ap- pendix. I have already referred to this letter, but it is important that I should now refer to it again. It was not the first time that the British Government protested against these seizures ; but it was the first time that that Government stated the grounds of its com- plaint. Lord Salisbury had, prior to the writi/,g of this letter, received from the American Government copies of the records of the United States District Court of Alaska, by which it appeared that the condemnations in that court were founded upon libels filed for the purpose of enforcing the American municipal law which forbade the taking of seals and by which it appeared also that the seizures had been effected at a greater distance than three miles from the shore. It is on this ground that Lord Salisbury conceives that the seizures were not justfiied. He explains that ground quite fully and closes his letter with these observations : Her Majesty's Governmei.t feel sure that, in view of the considerations which 1 have set forth in this dispatch, which you will communicate to Mr. Bayard, the Government of the United States will admit that the seizure and condemnaiion of these British vessels and the imprisonment of their masters and crews were not warranted by the circumstances, and that they will be ready to aiford reasonable compensation to those who have suffered in conseqi."uce, and issue immediate instruciions to their naval officers which will prevent a recurrence of these regrettable incidents. Mr. Bayard's first communication in relation to these seizures will be found at page 168. He then had before him the letter which I have just ret^d of Lord Salisbury. He had before him the grounds upon which Lord Salisbury based his objection to these seizures; and he was invited therefore to a discussion of these grounds and reasons. As I have already remarived, Mr. Bayard thought proper to waive, or avoid, that discussion for the tl^en present at least, and to icly upon conciliatory measures. The terms in which he did this will be found in the letter to which 1 now call your attention. As it is very short I will read it, although I have read it once before. These are instructions from him to the American Ministers abroad, the same letter being sent to the Ministers of several powers, Great Britain included. .? t' . .. ■■-j^.iJfa^'limaamHiMMiBKSHJMfiBP* •- OF MR. GARTER. 149 id acquired a United States ad afterwards t was at that iw to support id States took ro: retained it ow this 1 call plaint, which Lmerican Ap- ; is important irst lime that es ; but it was Is of its com- of this letter, he records of h it appeared 1 upon libels lunicipal law appeared also ce than three )rd Salisbury explains that observations : I considerations omniunicate to that the seizure onment of their s, and that they have suffered in il officers which ;hese seizures lim the letter efore him the :tion to these ision of these , Mr. Bayard for the then ^asures. The jltt.r to which will read it, ructions from ler being sent luded. Sir Charles Russell. My friend has not observed the dates ; that is a month earlier than the date of the communication to Lord Sa- lisbury. Lord Salisbury's letter is in August, and that is in Sep- tember. Mr. Carter, i am much obliged to my learned friend ; he is entirely right. Let me withdraw the observation 1 have made that when Mr. Bayard wrote that letter he had before him the letter of Lord Salisbury which I have just read. lie did not have it be- fore him. He did have, however, before him the protests against the sei7,ares which had been made to him by the British Minister in Washington. He did have those before him. There were several letters from the British Minister and one of them, perhaps the iirst, was on the 27th of September, 1886. The next one is of the same char- acter. The next is a communication from the Earl of Iddesleigh to Sir Lionel Sackville West; but it was also communicated to Mr. Bayard. That is on the 30th of October, 1886. As I have said, there was considerable delay on the part of Mr. Bayard in answe- ring these documents of the British Government — delay arising from the circumstance that the place from which information was sought was so remote. Those observations will be suflicient to enable the learned Arbitrators to understand the view first taken in reference to the matter by Mr. Bayard, which is contained in the letter of August 19th, 1887 ': CORRESPONDENCE RE(,ATIV3 TO PROPOSED INTERNATIONAL MEASURES FOR THE PROTECTION OF FUR-SEALS. FRANCE. Mr. Bayard to Mr. Vignaud No. 236.] Departement of State. Washinrjton, Augiisl 19, t8S7. Sin : Recent occurences have drawn the attention of this Department to the necessity of taking steps for the better protection of tlie fur-seal fisheries in Behring Sea. Without raising any question as to the exceptional measures which tlie peculiar character of the property in question migiit justify this Government in taking, and without reference to any exceptional marin<^ jurisdiction that might properly by claimed for that end, it is deemed advisable — and I am instructed by the President so to inform you— to attain the desired ends by international cooperation. It is well known that the unregulated and indiscriminate killing of seals in many parts of tiie world has driven them from place to place, and, by breaking up their habitual resorts, has greatly reduced their number. Under these circumstance, and in view of the common interest of all na- t. Identic instructions were sent to the United States mini.sters to Germany, Great Britain, Japan, Russia, and Sweden and Norway. '^ r mmimmmmiKSt m ORAL ARGUMENT ii. lions in preventing the indiscriminate destruction and consequent extermi- nation of an animal wiiicli conlributes so importantly to the commercial wealth and general use of mankind, you are hereby instructed to draw the attention of the tiovernment to which you are accredited to the subject, and to invite it to enter into sucli an arrangement witii the Ciovernment of the United Slates as will prevent the; citizens of either country from killing seal in Behring Sea at such times and places, and by such methods as at present are pursued, and which threaten tiie speedy extermination of those animals and consequent serious loss to mankind. The ministers of the United Slates to Germany, Sweden and Norway, Russia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction. 1 am, etc. T. F. Bayard. That was the first attitude taken by the Government of the United States towards the Government of Great Britain in refer- ence to this question and to the questions wiiich might be involv- ed in it. Distinct discussion is avoided. All extreme assertions are waived in view of the conciliatory purposes for which it was written. Nevertheless the grounds upon which Ihe Government would put its case are not indistinctly foreshadowed. They are that the property in question, of the seals, was of a peculiar na- ture, and that the proper protection of it might justify the exorcise by the United States of an exceptional marine juridiction. No assumption of exclusive dominion over Bering Sea, or anything of the kind, is asserted. That was the attitude which was taken by the United States during the administration of Mr. Cleveland and during what 1 have ventured to call, in giving an account of the whole controversy, the first stage of the controversy. The next stage of it is occupied with llio dealings with the subject during the administration of President Harrison ; and the first statement under that adminis- tration of the grounds upon w^hich the United States based the assertion of iis rights connected with the sealing industry was, as the learned Arbitrators will remember, set forth by Mr. Blaine iri his note of January 22, 1890, which is found on page 200. That letter I have once read. It is quite long and 1 do not think it ne- cessary to repeal the reading of it. It is, however, important to consider the substance of it, and I shall venture to state that, so far as it relates to the grounds taken by the United States. That substance is this : That the seals are an animal in a high degree useful to mankind; that Russia engaged in the industry of preserving them, cherishing them, and taking tlie annual in- crease on the Pribylof Islands at a very early period; and tliatfrom the lime when she first engaged in that industry down to the lime of the cession to the United Slates, no other nation and no otlier people had ever attempted to interfere with that right; that the ma OF MR. CARTER. 131 t extnrmi- oininercial ) draw the ilijncl, and lont of the Lilliiif; seal at present se animals (1 Norway, sed on the [it of the in refer- involv- issertions ch it was /eminent They are uliar na- ; exercise ion. No anything ed States lal I have itroversy, occupied ration of ad minis- based the y was, as Blaine in )0. That ink it ne- ovtant to 3 that, so i. imal in a ; industry nnual in- that from t the time no other that the United States acquired this industry together with the rest of their acquisition from Russia hy the Treaty of 1867, and that the United States had carried on the same industry in substantially the same way without any interference hy other nations, or other men, until the practice of pelagic sealing was introduced ; that this pratice of pelagic sealing was destructive of the seal and there- fore destructive not only of this particular industry of the United States, but destructive of the interest which all mankind had in this animal; that it was a pure wrong — to use his phrase — contra bonos mores, and consequently the United States had a right to prevent this invasion of one of its own industries which was thus persisted in without any right whatever, and which was J." riiy an assertion of a wrong. Those are the grounds taken by Mr. Blaine in this note. That is the same ground that the Govern- ment of the United States has asserted from the first and which it still continues to assert. Now, in order to show that those grounds were perfectly well understood and especially by the British Government, I call attention to Lord Salisbury's note in answer to that of Mr. Blaine, which will be found on page 207. He undertakes to reduce to distinct points the several positions taken by Mr. Blaine in that long letter; and I will read so much of it : Mr. Blaine's note defends the acts complained of by Her Majesty's Govern- ment on the following f,'rounds : 1. That " the Canadian vessel arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores — a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States." 2. That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United Stales in 1867, and that from this dale onwards until 1886 they had also remained in the undisturbed possession of the Uni.ed States Govern- ment. 3. That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing Ihe territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea. Mr. Blaine further argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which in- evitably tend to results against the interest and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United Stales Govern- ment by the necessity of defending not only their own traditional and long established rights, but also the rights of good morals and of good government the world over, I have no fault to find with that statement by Lord Salisbury. It exhibits a clear understanding of the position taken by Mr. Blaine and well enough described it, except in the last sentence where he I ni \i -I h lo2 ORAL ARGUMENT imputes to I lie U'Mto 1 States Government an intention, or a dispo- sition, to defend the rights of good morals and good government the world over. If he means I hey had asserted a right to undertake to do that, without reference to their own interest, the ohservation is not a correct one. The next occasion on which Mr. Blaine dealt with the subject was in his u .ler of June 30, 1890, wich is found on page 224. In that note he takes up the point, which Lord Salisbury had dealt with before, of Russian claims in Bering Sea, and undertakes to answer and refute Lord Salisbury's view in reference to it ; but he does not in that letter in the slightest degree change the attitude which he he had previously assumed in reference to pelagic sealing, so far as respected the ground upon which the Government of the United States based its views. lie expressly takes care that it shall not be understood that the United States make any assertion of a right of mare clausum as to any part of Bering Sea. I read the paragraph of his letter from page 233. He says there : The result of the protest of Mr. Adams, followed by the cooperation of Great Britain, was to force Russia back to ;)i"40' as her southern boundary. Rut llierc was no renunciation whatever on the part of Russia as to tlie Retiring Sea, to which the ulcase especially and primarily applied. As a piece of legis- lation this ukase was as authorisative in the dominions of Russia as an act of Parliament is in the dominions of Great Britain or an act of Congress in the territory of the United States. Except as voluntarily modified by Russia in the tr'^aty with the Uni'-ed States April \~, 1824, and in the treaty with Great Britair, February 10, l^io, the ukase of 1821 stood as the law controlling tho Russipn i)ossessions in America until the close of Russia's ownership by trans- fer to this (iovernment. Roth the United States and Great Rritain recognized it, respected it, obeyed it. It did not, as so many suppose, declare the Rehring Sea to be marc clausum. it did declare that the waters, to the extent of 100 miles from the shores, were reserved for the subjects of the Russian Empire. Of course many hundred miles, east and west and north and souUi, were thus intentionally left by Russia for the whale fishery and for fishing, open and free to the world, of which other nations took large ;idvantage. Perhaps in pursuing this advantage foreigners did not always keep 100 miles from the shore, but the theory of rignt on wliich they conducted their business unmo- lested was that they observed the conditions of the ukase. But the 100-mile restriction performed the function for which it was spe- cially designed in preventing foreign nations from molesting, disturbing, or by any possibility sharing in the fur trade. The fur trade formed tho princi- pal, almost the sole employment of the Russian American Company. It form ed its employment, indeed, to such a degree that it soon became known only as the Russian American Fur Company, and quite suggestively that name is given to the Company by Lord Salisbury in the dispatch to which I am replying. While, llierefore, there may have been a large amount of lawful whaling and Ashing in the Rehring Sea, the taking of furs by foreigners was always and under all circunslances illicit. He there asserts that it was not the purpose of the Ukase of 1821 to establish a mare clausum, as was by so many supposed, f S«#i mtm OF MR. CAUTER. 133 •a dispo- 'crnmcnt nderlake icrvation ? subject 224. In lad dealt idcrlakcs ze to it ; ange tlie pelagic Trnment care that assertion I read )n of Great dary. But le Behring :o of legis- s an act of ■ess in the ' Russia in with Great rolling the p by trans- recognized he Behring tent of 100 in Kmpire. ouUi, were I, open and Perhaps in IS from the less unmo- it was spe- turhing, or the princi- y. It form ime known itively that li to which amount of foreigners Ukase of supposed, but that its object was to preserve for liie exclusive use and enjoyment by Russian subjects of the benefits of the fur trade, the 100-mile exclusion being an instrumentality for that purpose. The next important note in the correspondence is that of August 2, 1890, by Lord Salisbury; but that again is confined to this discussion of Russian rights ; and there is nothing, I l)olieve pertinent to the point which I am now upon, namely, that of showing what the distinct altitude of the Government of the United States was. This was in the course of the correspondence and controversy between Mr. Blaine and Lord Salisbury concerning the extent of the Russian possessions and the extent to which they had been acquiesced in. To that Mr. Blaine rejoins in a letter begin- ning on page 263, and it is that letter which contains the single observation which might be taken as a justihcalion for the state- ment that Mr. Blaine 1>. j)ut the American claims in the contro- versy upon the basis of an acquisition by Russia and a transmis- sion to the United States of a sovereign dominion over Bering Sea. That observation I have already alluded to, but I will allude to it again. It is found on page 263 : The United Stales contends that the Behring Sea was not mentioned, or even referred to, in eitiier treaty, and was in no sense included in the phrase " Pacific Ocean ". If Great Britain can maintain her position that the Behring Sea at the time of the treaties wilh Russia of 1824 and 182^) was included in the Pacific Ocean, the Government of the United States has no well-grounded complaint against her. If, on the other hand, this Government can prove beyond all doubt that the Beliring Sea, at the date of the treaties, was under- stood by the three signatory Powers to be a separate body of water, and was not included in the phrase " Pacific Ocean ", then the American case against Great Britain is complete and undediable. Those observations standing alone might fairly be taken as indicating that Mr. Blaine had put the whole position of the United States in this controversy upon its ability to maintain that Russia had acquired by the Ukase of 1821, and other acts, sovereign au- thority and sovereign jurisdiction over Bering Sea. It is impossible that he could have intended it. I say it is impossible that he could have intended it, because it is utterly inconsistent with what he says in the same letter. I assume that he intended by that observa- tion that if Great Britain succeeded in making out her case, the United States, so far as that question was concerned, would have no ground of complaint against her; and so. on the contrary, if the United States succeeded in making out her case, Great Britain, so far as that question was concerned, would have no just ground of complaint against the^ seizures ; but that he did not mean to change his ground, becomes perfectly apparent from his more distinct assertions near the close of the same letter ; and I must again read them. ijl VA. Si y ^ .s* ,m ORAL ARGUMENT ij ! The repeated assertions that the Governinenl of the United States demands tliat the Reining Sea Im; prononnced mure cldusum, are without foundation. The Government lias never claimed it and never desired it. It expressly disavows it. At the same time the United States does not lack abundant authority, acrordinj,' to the ablest exponents of international law, for holding a small section of the Bdiring Sea for the protection of the fur-seals. Con- trolliiif^ a comparatively restrictod area of water for that one specific purpose is by no means the (iquivalent of declarinf; the sea, or any part thereof, rnare clansiiin. Nor is it by any m^ans so serious an obstruction iis Great Uritain assumed to make in the South Atlantic, nor so f,'roundless an interference with the common law of the sea as is maintained by Hritish authority to day in the Indian Ocean. The President does not, however, desire the long postponement which an examination of legal authorities from Ulpian to Phil- limoro and Kent would involve. He finds his own views well expressed by Mr. I'hel; s, our late minister to England, when, after failing to secure a Just arrangement with Great Britain touching the seal fisheries, he wrote the fol- lowing in his closing communication to his own Government, September 12, 1888 : Much loariiing has been expended upon tlio discussion of the abstract qiicstion of the I'ij^ht of marc clausum. I do not conceive i( to be applicable to the present case. Ile'rc is a vahiable fisliery, and a largo and, it properly managed, pcnuaneiit indus- try, the property of the nations on whose shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in tpiestion, in the open neighboring sea, during the period of gesta- tion, when the common dictates of humanity ought to protect them, were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free. The same line of argument would take undei its protection piracy and the slave trade when prosecuted in the open se; or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea .near its coasts. There are many things that can not bo allowed to bo done on the open sea with impunity, and against winch every sea is mare clausum; and the right of self-defense as to person and properly prevails there as fully as elsewhere. If the lish upon Canadian coasts could be destroyed by statioring poison in the open sea adjacent with some small jirofit to those engaged in t, would Canada, upon the just principles of international law, lie held defenseless ii such a case? Yet that process would be no more destructive, inhuman, and wanton than this. If precedents are wanting for a defense so necessary and so proper, it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been estal)lishcd when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules. Lord Salisbury in a note subsequent to this, on February 21st, 1891, again attempted to impute to Mr. Blaine a reliance, and a sole reliance, on Russian pretentions, instead of u on a princi- ple of property right. That will be found on page 290. He says in a paragraph near the bottom of the page : The claim of the United States to prevent the exercise of the seal fishery by other nations in Behring Sea rests now exclusively upon the interest which by purchase they possess in a ukase issued by the Emperor Alexander I, in the year 1821, which prohibits foreign vessels from approaching within 100 Italian miles of the coasts and islands then belonging to Russia ia Behring Sea. It is not, as I understand, contended that the Russian Government, at the time of the issue of this ukase, possessed any inherent right to enforce such a prohibi- "^*mT OF MR. GARTER. 155 ^s demands roimdution. t expressly k abundant for holding :!als. Gon- fic purpose ereof, mare ■eat Uritain nterl'erence irity to day •e llie long ian to Pliil- ;pressed by 3cure a Just ote the fol- ptember 12, t question of present case, lanont indiis- pi'oposcd by the countries >xtenninalion iod of gesta- ere there no am defending ncc from the ind the slave cstroying the the open sea done on the ind the right vhere. If the the open sea upon the just t that process it is because international , occasion for February iancc, and a a princi- Hc says iu al fishery by est which by ider I, in the n 100 Italian g Sea. It is t the time of :h a prohibi- tion, or acquired by the act of issuing it any claims over the open sea beyond the territorial limit of 3 miles which they would not otherwise have possessed. But it is said that this prohibition, worthless iu itself, acquired validity and force against the British GoverumtMit because that (loverment can he shown to have accepted its provisions. The ukase was a mere usurpation ; but it is said that is was converted into a valid inleraational law, as against the British Government, by the admission of that Government itself. Now Lord Salisbury could not, 2 think, fairly, with the cor- respondence of Mr. Blaine before him, which I have already read, impute to the United Slates Government a sole reliance upon a jurisdiction asserted to have been acquired by Russia ; but he attempts to do it there, and is very sharply corrected by Mr. Blaine in a subsequent note of April 14, 1891, which will be found on page 293. I read from page 298 : In the opinion of the President. Lord Salisbury is wholly and strangely in error in making the following statement : Nor do they [the advisers of the President] rely, as a justification for tlie seizure of British ships in the open sea, upon the contention that the interests of the seal fislierios give to the United States Oovcrnniont any right for that purpose which, according to international law, it would not otherwise possess. The Government of the United Stales has steadily held just the reverse of the position which Lord Salisbury has imputed to it. It holds that the owner- ship of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their youg thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and incidents of their relation to the island, give to the United States a properly interest therein; that this properly interest was claimed and exer- cised by Russia during the whole period of its sovereignty over the land and waters of Alaska ; iliat England recognized this property interest so far as recog- nition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United Slates. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1880 and subsequent years has changed the law and equity of the case theretofore prevailmg. And with that extract I conclude my observations concerning the attitude taken by the United Stales. From first to last it was based upon the assertion of a property interest in these seals, strengthened indeed by the allegation that that property interest had been originally held by Russia , and while helu ^ Russia had been recognized by both Great Britain and the United States, and that the possession of this property interest by the United States gave it the right — a right which every Government has — to pro- tect its property wherever that property has the right to be, and by such measures as are necessary for the purposes of such protection. Now, then we have out of this case, as far as I am capable of putting out of it, any argument as to whether Russia ever acquired a sovereign jurisdiction over any part of Bering Sea, or whether *^ry«W«!»*«FX=J*-"¥'>r-» -^'r^*"^¥5W»«iWF!' l»mWi.«^"*«'»!»fWW. " 1K6 OUAL AHGUMEM k 'A r. ■| Sfi'r she ever transmitted io the United States any sovereign jurisdic- tion over any part of it. We make no assertion of that character. We put no part of our case upon any sucli assertion. We do not suppose Unit any such assertion of jurisdiction was ever made by Russia, ikit do I mean tiiat tiiis matter of Russian pretentions in Bering Sea, the rigiits which she may have assorted and ac(|uired in those remote waters and vvhicii the United Slates may iiave acquired from her, have no place or importance in tiiis controversy? No; I do not mean that. These pretensions do have a pUice, and an important place, which I am now about, so far as I am able, to vindicate for them. Tliat is this : It could be hardly better expres- sed than Mr. Blaine has expressed it in the passage from which I last read : That this property interest was claimed and exercised by Rnssi during the whole [)eriod of its sovereignty over tlie land and waters of Alaska; that England recognized this property interest so far as recognition is implied, by abstaining from all interference with it during the whole period of Russia's own'Tsliip of Alaska, and during the first nineteen years of the sovereignty of the United States. Now, I am going to deal with this subject but very briefly. The question mainly turns upon what rights Russia did original- ly assume in Bering Sea, and whether those rights were ever dis- placed or modified by the subsequent treaties between her and the United States and between her and (ireat Britain in 1824 and 1825, and if displaced, or modified, to what extent. 1 am going to deal, 1 say very brielly, with that argument, and for two reasons : First, as 1 have already intimated, 1 do not conceive that it plays any vital part whatever in this controversy, and therefore I should do injustice to the general argument of the question if I should assign a disproportionate space to >t ; and I could not go through with the argument and refer to all the diplomatic communications and occasional acts of the va- i'^us countries which have a bearing upon it without employing several days in the discussion. I have neither lime nor strength for that and am not going into it. If I did do it, I could not implant such an impression of the particular incidents of the controversy as would enable you to remember it for any succession of days. It will be inevitable — it will be a task which the learned arbitrators will find it necessary to go through with — to examine this diplomatic correspondence and to examine the grounds taken by the American Government in the various communications upon this subject by Mr. Blaine. I could not lessen that labor materially by any lengthy discussion now. Nevertheless I must df il with it very briefly. 1 have endeavored to point out in the sketch with which I began this part of my argument, the edrly dealing on the part of Russia OF MFl. CARTER. 157 jurisdic- haraclcr. ^e do not made by intiuns in ac(|uired nay iiave Iroversy? laco, and n able, to ercxpres- )m wbich ssi (luring lasRa; that implied, by of Russia's creignty of y bi'iefly. I original- evcr dis- er and the and 1825, g to deal, reasons : it it plays e 1 should I should through Linications a bearing 1. 1 have ) it. If I particular aember it will be a iry to go nee and to mt in the . I could )n now. eh I began of Russia with Bering Sea and itscoasis and Islands, and I think that I suc- ceeded in showing that Russia prior to 1821 had appropriated to herself all the coasts and islands of that sea and ail ' 'c^ir resources so far as any nation could appropriate them ; that si iippropria- tion was just and in accordance with natural law. Th^re was enough only for one great nation, and the world would be best served by such exclusive appropriation. We do not assert an appropriatien of the products of the sea unconnected with the shores. We assert no such appropriation on the part of Russia. Russia asserted the right to protect her trade and industries by the exercise of self-defensive authority upon the high seas and practically by excluding other nations from a belt of water extend- ing 100 miles from the coasts and islands. She declared this to be, not an assumption of sovereignty, or mare clausum, or attempt to establish mare clausion, but a scheme of prevention ; in other words, a measure of self-defence. That assertion of authority was protested against, formed the subject of negotiation, and was eventually modified by treaties between Great Britain and the United States, severally, and Russia. Now, except so far as the effect of the Ukase was thus modi- lied, it stood, and stood assented to by Great Britain and the United States. The assent was indeed an implied one ; but the implica- tion was sufficiently strong. The inquiry then arises how far the assumption of authority by Russia in the Ukase of 1821 and her acts in support of it were modi- fied or displaced by these subsequent treaties. In other words it involves the interpretation of the language and elfcct of these sub- sequent treaties. Now as the interpretation of these documents is not entirely easy upon the face of them, it will be proper to place ourselves in the possession of certain information in regard to the matters covered by the treaties, which will be found useful to us in the endeavor to ascertain what were the intentions of the parties to them. The two sections of the Ukase which it is necessary to read will be found on page 16 of the first volume of our Appendix : Sec. 1. — The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs including the whole of the northwest coast of America, beginning from Behring's Straits to the 51° of northern lati- tude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Straits to the South Cape of the Island of L'rup, viz, to the iu^oO' northern latitude, is exclusively granted to Russian subjects. Sec. 2. — 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 taan a hundred Italian miles. The transgressor's vessel is subject to confiscation along with the whole cargo. j^BSsBnri'^?'*^'-'*'--^ ^iB5»MCMSS!fW«ff ' r-TO'=K"^''n"«f'^^T*i'^*«'-'3 iB8 ORAL ARHUMKNT if Now it would so(>m llial wli«'ii llic (iovornrn(>nl ol'liroat Hriluin rccoived inrorrniitioii ot'llial I kiisc tli(>y applied to so oiiiineiil an autliorily as Lord Stowcll lo learn what the ellect ot'it was, and he writes to Lord Melville on lhe26lh of Decern her, \H^2\. I iini read- ing IVoni (he Appendix to the Case of (jiroat liriUiin, volume 2, page 12 : Lord Stowcll lo Lord Melville. OrAPTON STRKET, LONDON, December te, 1 8H. My dkah Lord : I have perused lliese piijiers, atnl il appears to me lo be unsafe to proceed to any controversial discussion, of tiie proposed Hefiula- tions, till it is shown tliatlliey issue from a c(ini|ietent authority founded upon an acknowledged title of teiiilorial and exclusive possession of the ])oitions of the f{lohi; to which they relate. lam myself too slijihtly acquninled with the facts regardiiij; such possession (how originally ac(piired and how siih- seqnently enjoyed) to he enabled losay that upon undisputed principles such a possession exists. It is perfectly clear from these Heguhitions that it has not hilherlo been exclusivt; in the extent in which it is now claimed ; I'oilhey are framed for the very purpose of putting an end to foreign intercourses of traffic therein, which they denominate illicit but which they admit existed de facto. The territories claimed are of difl'erent species — islands — portions of the continent — and large portions of the sea adjoining. I know too little of tlie liistoiy of their connection with either islands or continents to say with confidence that such a possession has in this case been acquired. 1 content myself with remarking that such possession docs not appear in the opinion and practice of States to be founded exactly upon the same principles in (he cases of islands and continents. In that oi islands, discovery alone has usually been held suflicient to constitute a title, ^ot so in the case of continents. In the case of the South American Continent the Spaniards and I^ortuguese resorted to giants from an authoiity which in that age was universally respected, and continued ni respect till subsequent pos- session had confirmed their title. But I think that it has not been generally held, and cannot be maintained that the mere discovery of a coast gives the right to the e\clusive possession of a wlnde extensive continent lo which it belongs, and less to the seas that adjoin to a very considerable extent of distance. An undisputed exercise of sovereignty cvei' a large tract of such a continent and for a long tract of time would be requisite for such purposes. I am too ignorant of particular facts to say how f»r such principles aie Justly applicable lo such cases. I observe that by these Regulations the commerce in these islands, continents and adjoining seas is declared to havi- been grant- ed exclusively lo Russian subjects: who the grantor is, is not expressly declar- ed. If, as is probable, the Autocrat of Russia is meant, the inquiry then reverts lo the question respecting the foundation of sucli an authoiiiy, and thinking that that question must be first disposed of, I content myself with observing upon the Regulations themselves that they are carried lo an extent that appears very unmeasured and insupportable. I have, etc. Stowkix. I read that letter for the purpose of showing two things : First, OF MH. caf. been grant- ressly declar- iiiqniry then uUioriiy, and t myself with 1 to an extent row K LI., ings : First, the views ol' a disfinguislied jurist of thai day upon f lie qiK^stion ol" what right is acijiiircd l»y tlie discovery of new regions, and what acts werc^ necessary for the [Uir|)ose of really conslitiiliiig |)ro|)crly ill llieiii ; and next for llie ()ur()os(> of showing that l,ord Slowell gathered at once from the face of these regulations that they were not designed as assuming sovereign jurisdiction over the sea, hut were defensive regulations for the |)ur|) assi'rlion of a terrilorial claim on the pari of Hussia, extnndiiif,' to the llfty-flrsl degree of north latitude on ibis continent, and a reguhilion interdicting to all commercial vessels other than Hnssian, upon IIk; penally of seizure and conllscalion, the ap- proach upon the high seas within lUU Italian miles of the shores to which thai claim is made to apply. The relations of the Lniled Sl.-.tos with His Imperial Majesty have always been of the most friendly character; and it is the earnest desire of this (Jovernment to preserve them in that slate. It was expected, before any act which should dellne the boundary between the territories of the United Slates and Htissia on this contineiil, t'uit the same would have been arranged by treaty between the parlies. To exclude the vessels of our citizens from the shore, beyond the ordinary distance to which the territorial jurisdiction extends, has excited still greater surprise. This ordinance alTecls so deeply the rights of the United Stales and of their citizens that I am instructed to inquire whether you are authorized to give explanations of the grounds of right, upon principles generally re- cognized by the laws and usages of nations, which can warrant the claims and regulations conlained in it. 1 avail, etc., John Quincy Adams. That was the protest of the United States. It was answered by the Russian Minister M. de Poletica, in a note which is found on page 133, Volume I, of the Appendix to the Case of the United Stales and which I have already read and will therefore «oi repeat. I will observe in regard to it only that the Russian Minister in that note says that this Ukase is not an attempt to make the Bering Sea, or any part of it, mare clausum, but that it is adopted as a measure of prevention to protect the industries of Russia and her commerce on that sea. Sir Charles Russell. We think that answer of de Poletica is very important, and we do not admit that that is a correct summary of it. Mr. Carter. Do you prefer that it should be read in full. Sir Charles Russell. Just as you please about that. Mr. Carter. 1 am quite willing that it should be read now. 11 1 M ftr PS 'jr z*i A. 162 ORAL ARGUMKNT w Ifll Sir Chariest Russell. Oh no! Mr. Carter. Negotiations at once began between Russia Great Britain and the United States in reference to the assump- tion of authority contained in this Uivasc and they were at first jointly conducted. That appears in the correspondence here, and I will not take time to read the various letters in which it ap- pears for tlie purpose of showing it; but it does sufficiently appear. Great Britain and tlie United States acted in conjunc- tion, and each was consequently fully apprised of the views of the other. That common action continued for a conside- rable period of tirxic in the negotiations and was finally bro- ken oif — broken oif as I apprehend, and as I think is evident from the correspondence, because the United States Govern- ment had taken the altitude in the course of the correspon- dence that it would not recop^nize any further establishments of Euroj)ean powers on the North American continent — a suggestion of a doctrire subsequently known among states- men as the Monroe doctrine. Mr. Monroe, was then President of the United States, \n consequence of that suggestion Great Britain withdrew from her joint action with the United States in the negotiation, but as 1 rather assume, and as 1 think is very natural and indeed evident, kept herself apprised of the course of the negoLiati *ns between Russia and the United States. The President. \Vas there a formal declaration that they vv'ould cease acting jointly? Mr. Carter. There was a formal declaration thai they would cease acting jointly. 1 cannot now point to fiie particular let- ter; but that is the fact. The President. Aiid tVr motive given was the doctrine of President Monroe? Mr. Carter. ! am not able to say that was the reason given in the statement, but that I think was the fact. 1 may possibly be able to answer the question . f the President. 1 cannot lay my haifd at present upon the correspondence showing the grounds upon which Great Britain withdrew her participation. The President. Perhaps it is not material to your argument. Mr. Carter. Here is a aote that perhaps throws light upon it. This is an extract from a letter fnmi Mr. liush, the American Mi- nister in London to his own Government dated .January 9, 1824. I read from the American Stale Papers, volume 8, p. 463. Mr. Justice Harlan. Probably what you are looking for is on p:^,c 48 of V( lume 2 of the British Case, a letter from Mr. Canning to Sir Cliarles Bagol. There is some allusion there to it. Mr. Carter. I will read this letter to which 1 refer : / ' OF CAUTEH. 103 tween Russia 3 the assump- ^ were at first 3nce here, and ti which it ap- es sufficiently d in conjunc- of t he views 'or a conside- is finally bvo- ink is evident Stales Govern- ,he corrcspon- eslablishments jontinent — a among states- then President ggestion Great United States I as 1 think is .pprised of the i United States, tion that they that they would ! particular let- the doctrine of le reason given may possibly be cannot lay my ng the grounds ion. your argument. tvs light upon it. le American Mi- [anuary 9, 4824. p. 463. ooking for is on om Mr. Canning •c to it. •efer : Extract of a letter from Mr. Rush, dated London, January 9, I8S4, I have heretofore written to you on the 6tli and ■22nd of December, and havb now to inform you that from interviews whicli I liave had with Mr. Gan- niniL? sinse the present month set in, I find that he will decline sending instruc- tions to Sir Charles Hagot to proceed Jointly with our Government and that of Russia in the negotiation relative to the Northwest coast of America; but that he will he merely informed that it is now the intention of Great Britain to proceed separately. Mr. Canning intimated to me that to proceed separately was the original intentio of this Government, to which etfeot Sir Charles Bagot had been in- structed, and neve;- to any other; and that Sir Charles had onlypaused under your suggestions to him of its being the desire of our Government that the three powers should move in concert at St. Petersburg upon this subject. The resumption of its original course by this C jv<3rnment has arisen chiefly from the principle which our Government has ailoc'id, of not considering the American continents us subjects for future coloui/ation by any of the Euro- pean powers — a principle which Great Britain does not accede. I have informed the Secretary of State of the above intention of this Go- vernment. It will produce no alteration in my endeavors to obtain in nego- tiation here a settlement of the points as between the United States and Great Britain, respecting the Northwest coast, in manner as my instructions lay them down to me. And Mr. Canning's version of the san.e affair will be found on page 48 of volume 2 of the Appendix of the British Case. Mr. Can- ning says in a note to Sir Charles Bagot : These reasons had induced us to hesitate verj much as to the expediency of acceding to the proposition of the United Slates for a common negotiation between the three Powers; when the arrival of the Speech of the President of the United States at the opening of the Congress supplied another reason at once decisive in itself, and susceptible of being stated to Mr Hush with more explioitnoss than those which I have now detailed to your Excellency, I refer to the principle declared in that Speech, which proliibits any further attempt by European Powers at colonization in America. So that the oHgin^' action in common between Great Britain and the United Sti:tos ard the subsequent breaking up of that common action by Gt-at Britain all appear to be quite evident. They are impoi'Jant however to my present argument only as showing that Great Britain and the United States, acting as they did originally in common, were at the start entirely well acquainted with the views of each other. Now the next piece of evidence which it is important to notice in order to ascertain the views with which the two parties appro- ached this negotiation — for that is what I am now upon — is to be found in the instructions issued to the negotiators. I call atten- tion to the instructions from the United States Government which will be found in a letter from Mr, John Quincy Adams to Mr. Min- 164 ORAL ARGUMENT isler Middlelon on page 141, Vol. 1, Appendix to the Case of the United States. 1 think I ought to read the whole of that letter. Mr. Adams to Mr. Middlelon. i'' F-i , ! No. 16.] Department of State, Washington, July 2M, 1813 Sib : I lave the iionor of inclosinf; herewith copies of a note from Baron de Tuyll. the Russian minister, recently arrived, proposing, on the part of His Majpstv the Emperor of Russia, that a power should be transmitted to YOU to enter upon a negotiation with the ministers of his Government con- rerning the differences which have arisen from the Imperial ukase of 4th (i6lh) September, 1821, relative to the northwest coast of America, and of the answer from this Department accedinf; to this proposal. A full power is accordingly inclosed, and you will consider this letter as communicating to you the President's instructions for the conduct of the negotiation. From the tenor of the ukase, the pretentions of the Imperial Govern- ment extend to an exclusive territori:.' jurisdiction from the lorty-tlfth degree of north latitude, on the Asiatic coast, to the latitude of fifty-one north on the western coast of the American continent; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that coast. The United States can admit no part of these claims. Their right of nav- igation and of fishing is perfect, and has been in constant exercise from the earliest limes, alter the peace of 1783, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exchisioris of the territorial jurisdictions, which, so far as Russian rights are concerned, are confined to certain islands north of the fifty-fuih degree of latitude, and have no existence on the continent of America. The correspondence between Mr. Polelica and this Department con- tained no discussion of the principles or of the facts upon which he at- tempted the justification of the Imperial ukase. This was purposely avoided on our part, under the expectation that the Imperial Government could not fail, upon a review of the measure, to revoke it altogether. It did, however, excite much public animay assume er nations [lit of nav- ■cise from t extent of exclusions 'oncerned, f latitude, nient con- ich he ai- purposely overnment •fether. It ,ry, as the Hie North cle (p. 370) i)f it taken liy Review, icle in Hie y, of occii- 1, are all 5ian settle- ingel, cited ar as prior I i...-" re- ' north, hy no part of ■ive weaker says Hum- ,h parallels Tchivikoff. Quadra, Cook, La Perouse, Malespii^r, and Vfincouver. No European nation has yet formed an establishment upon the immense extent of coast from Cape Mendocino to the fifty ninth degree of latitude. Beyond that limit the Russian factories commence, most of which are scattered and distant from each other, like the factories established by the European nations for the last three centuries on the coast of Africa. Most of those little Russian colonies communicate with each other only hy sfca, and the new denomina- tions of Russian America, or Rus;.inn possessions in the new continent, must not lead us to believe that the coast of Behring's Buy, the peninsula of Alaska, or the country of the Ischugatschi have become Russian provinces in the same sense given to the word when speaking of the Spanish provinces of Sonora or New Biscay ". (Humboldt's New Spain, Vol. II, Book 3, chap. S, p. 40(1.) In Mr. Polelica's letter of 28th February, 1822, to me, he says that when the Emperor Paul I granted to Hie present American Company its first charter, in 1799, he gave it the exclusive possession of the northwest coast of America, wiiicli belonged to Russia, from the fifty-fifth degree of north lati- tude to !m bring Strait. In his bilter of 2d of April, 1822, he says that tiie charter of the Russian American Company, in 1799, was merely conceding to them a part of the sovereignty, or, rattier, certain exclusive privileges of commerce. Thi 1 is the most correct view of the subject. The Emperor Paul granted to tlie Russian American Company certain exclusive privileges of comaierce — exclusive with reference to other Russian subjects; but Russia had never bcl'orB asserted a right of sovereignty over any part of the North American continent, and in 1799 the people of the United States bad been at least for twelve years in the constant and uninternipled enjoyment of a profitable trade with the natives of that very coast, of which the ukase of the Emperor Paul could not deprive them. It was in tills same year, 1799, that the Russian settlement al Sitka was first made, and it was destroyed in 1802 by the natives of the country. There were, it seems, at the time of its destruction, throe American seamen who perished with the rest, and a new setUenient at the same place was made in 1804. In 1808 Count Romanzoif, being then Minister of I'oreign Atfairs and of Commerce, addressed to Mr. Harris, consul of the United States at St, Peters- burg, a letter complaining of the traffic carried on by citizens of the United States with the native isla'ulers of the northwest coast, instead q( trading with the Russian possessions in Am^'^ica, The Count stated that^he Russian Com- pany had represented this traffic as clandestine, by which means the savage islanders, in exchange for o'ter skins, had been furnished with firearms and powder, with which they lia(' destroyed a Russian fort, with the loss of several lives. He expi'essly disclainiod, however, any disposition on the part of Rus- sia to abridge this traflii- of the citizens of tlie United States, but proposed a convention by which it should be c; rried on exclmivehj with the agents of (he Russian American Company at Kadiak, a small island near ..he promontory of Alaska, at least 700 miles distant from the other settlement at Sitka. On the 4lh of January, 1810, .Mr. Daschkotf, charge d'affaires, and consul general from Russia, renewed this [jroposal of a convention, and requested as an alternative that the United States shoulil, by a legislative act, prohibit the trade of their citizens with the natives of the northivest coast of America as unlawful and irregular, and thereby induce them to carry on the trade ex- clusively with the agents of the Russian American Company. The answer of the Secretary of Stale, dated the oth of May, 1810, declines those proposals for reasons which were then satisfactory to the Russian Government, or to fr.j mm 166 ORAL ARGUMENT m * i i which at least no reply on their part was made. Copies of these papers and of those containing the instructions of the minister of the United Slates then at St. Petersburj^, and the relation of his conferences with the chancellor of the empire, Count Romanzoff, on this subject are herewith inclosed. By them it will be seen that the Russian Covernment at that time explicitly de- clined the assertion of any boundary line upon the northwest coast, and that the proposal of measures for confining the trade of the citizens of the United States exclusively to the Russian settlement at Kadiak and with the af,'ents of the Russian American Company had been made by Count Romanzoff under the impression that they would be as advantageous to the interests of the United tales as to those of Russia. it is necessary now to say that this impression was erroneous; that the traffic of the citizens of the United Stales with the natives of the northwest coast was neither c/(/n(?ese than that i formation hem by the ror Alexan- ■i^alion and our claims s not to be nent at the ofTer means OF MR. CARTER. i6^ of useful commercial intercourse with the Russian settlements on the islands of the northwest coast. _ ■ . . p ^ cp a With regard to the territorial claim, separate Irom the right of trafhc with the natives and from any system of colonial exclusions, we are willing to agree to the boundary line within which the Emperor Paul had granted exclusive privileges to the Russian American Company, that is to say, latitude jo°. If the Russian Government apprehand serious inconvenience Irom the illicit traftlr, of foreigners with their settlements on the northwest coast, it may be effectnallv guarded against by stipulations similar to those, a draft ot which is herewith subjoined, and to which you are authorized, on the part ot the Uni- ted States, to agree. , . , j • . , a As the British ambassador at St. Petersburg is authorized and instructed to negotiate likewise upon this subject, it may be proper to adjust the interests and claims of the three powers by a joint convention. \our full power is prepared accordingly. .. ,, . . • Instructions conformable to these will be forwarded to Mr. hush, at Lon- don, with authority to communicate with the British Government m relation to this interest and to correspond with you concerning it, with a view to the maintenance of the rights of the United Stales. lam, etc., ^ , JouN QuiNCY Adams. Hrniiy Middleton, Envoy Extvnordinav; and Minister Plenipolenliavy of the United States, St. Petersburg. [Inclosuro.] ;;. . , Draft of treaty between the United Stales and Russia. ,; ; Art I In order to strengthen the bonds of fi-iendsliip und to preserve in future a perfect harmony and good understanding between the contracting parties, it is agreed that their respective citizens and sulyects shall not be disturbed or molested, either in navigating or in carrying on their fisheries in tlic Pac^flc Oeean or in the South Seas, or in landing on ) coasts of those seas, in places not already occupied, for the purpose of carrying c tliciv commerce with the natives of the country ; suhjccl, nervertheless to the restr' ions and provisions specified in the two following articles. Art H To the end tha. the navigation and fishery of the citizens an.i sulyects or the contracting parlies, rcspt •.lively, in the Pacific Ocean or in the South Seas, may not be made a pretext for illicit trade with their respective settlements, it is agreed that the citizens of the United States shall not land on any part of the coast actually occupied by Russian settlements, unless by permission of iho governor or comraanrter thereof, and that Russian subjects shall, in like manner, be interdicted from landing without permission at any settlement of the United States on the said northwest coast. Art III. It is agreed "that no settlement shall be made hereafter on the north wesi coast of America bv citizens of the United States or under their authority, north, nor by Russian subjects, or under the authority of Russia, south of the htty-ht.i degree of nortli latitude. (For other inclosures, see American State Papers Foreign Relations, vol. V, pp. 436-438.) Now the learned Arbitrators will perceive from thatletlor, which is very instructive in reference to the views of the United States Government at that lime, that the only serious and practical objec- tion on the part of Ihc United States to whatever pretensions were setup by Russia in this L^kasc of 1821, were two : lirst, that sh'> h mtem^a^emxssmtsx ,-.' liHiniru.: i 168 GRAF, ARGUMENT Mf4 M^'i< mm should have oxlcndod lier Icrritonal pretensions from 54° 40', where they stood under tlie charter to the Russian American Com- pany of 1799, down to ;il degrees of North latitude; and, second, to horexchision from the Northwest coast of the Iniled States citizens engaged in track'; in other words, the exclusion of tliem from the benehts of the trade on this Northwest coast. The maritime pre- tension contained in the Tkase (»f 1821 was indeed alluded to and objected to; hut it forms no substantial part of the objections which are so carefully urged by Mr. Adams. The substance of the objections urged by Mr. Adams are these : ihat the trade along I his Northwest coast, by which he means the coast extending fronj, say 60 degrees of north latitude, down to the mouth of the Columbia Itivei-, had been for years in the enjoy- ment of various powers, of Russia, of the United States, of Great Britain, of Spain and of Portugal ; Ihat they had all, to a greater or less degree, engaged in that trade; Ihat the United States had engaged in it from the time that she had become an independent nation; and that her right to a parl-'^lj. uion in that trade was enti- rely well founded, as Mr. Adams i--'"' d. Now, that had refer- ence to this coast along which 1 run the pointer [indicatintc on the map], and had no reference at all to Rering Sea, or to any of the islands of Rering Sea, or to the coast of Siberia — regions which, so far as respected their coasts, or any trading upon the coasts, had never been visited by the vessels of the United States; and no thought had ever been entertained t)f engaging in sucli a com- merce. The United States claimed title, according to this state- ment by Mr. Adams, up to the rj9th degree, the present boundary of British Columbia. At that time Great Rritain and the United States were of course in dispute as to whom this coast here (indi- cating on map) belonged to; and itjwas not until the year 1846 that that dispute was settled by the adoption of the present boundary. The President. On page 142 of the report of Mr. Adams from which you have just read, they sneak of the 59th degree north as being the claim of the United States. I suppose it ie a misprint, Mr. Carter. No, that is the point up to which the United States claimed, it would be where my pointer now is, up to the south- ern boundary of Alaska, a line which would take the whole of the peninsula. That was a claim which made this territory in part a disputed one. The case which Mr. Adams made here by these instructions was this : " Spain is the first discoverer up to the 60 degree of North latitude . We have her rights transferred to us. Therefore by iirst discovery, we have a title to latitude 60. In the next place we have alwavs engaged in trade on that coast ; have viaited it con- i^i&i'M^'' MM OF MR. CARTER. ^69 W 40', lan Com- 3cond, to s citizens IVom Iho imc p re- el to and ns which I'o these : cans the down to lie enjoy- of Great router or [ates had ependoiit was enti- ad rel'er- ig on the ny of the js which, )asts, had 3; and no di a com- his state- houndary le United ere (indi- ^ear 1846 J present ams from north as misprint. ted States he sonth- whole of , disputed »truclions degree of Therefore ext place ed it con- tinually ever since we were an independent nation, and such rights as w^ have springing out of trade with the coast, added to the rights of prior discovery, constitute a title upon which we can make a dispute with Russia ". So that we see from this letter of Mr. Adams, and from his instructions to the American negotiator of the Treaty, that practi- cally the whole importance of the dispute lay in the possession of that Northwest coast. That is all there was about it. There was indeed a sentimental assertion — I call it a sentimental one — that no further acquisition, no further settlements by European powers upon the American continent, would be permitted; but that did not amount to much, for in the very letter he offered to draw a boundary line with Russia at 5b degrees which would give her exclusive possession of a very considerable part of this disputed region. Practically the whole of the interests that were alfected by this dispute centred upon that Northwest coast trade. And I might as well here strengthen that point. Mr. Adams, you will remember, refers in that letter of instructions to two articles in certain well-known periodicals of that time as containing very cor- rect information about this region. He refers to an article in the Quarterly R'ivicw, and to 'in article in the North American Review. Here is an extract from the article th^ij referred to in the Quarterly Review. It will bo found on page 12 of the first volume of our appendix ; Let us examine, however, what claim Russia can reasonably set up to the territory in question. To the two shores of Bering Sea we admit she would have an undoubted claim, on the scope of priorily of discovery, that on the side of Asia having been visited by Ueshnew in 1648, and that of America visited by Bering in 1741, as far down as the latitude 31" and the peaked mountain, since generally known by the name of Cape Fairweatlicr; to the southward of this point, however, Russia has not the slightest claim. That is carrying the position and claim of Russia under the claim of prior discovery much farther south than the 60th degree. Here is the extract from the North American Review. That articfe in the North American Review, I may say — and 1 do not know hut there is some evidence of it in these papers — was 1 think I may undertake to say, written by Mr. William Sturgis ui Boston, a very distinguished merchant oi'that day, of the firm of Bryant, Sturgis and Company, who carried on an extensive trade on this very coast; and he had himself been, as a member of that house and engaged in this navigation, many years on that coast. It was perfectly familiar to him, with its history, and with the trade which had arisen there. It is also on page 12 : We have no doubt but Russian fur-hunters formed establishments, at an mmummmm an ^1 •■"rr m no early period, tiuent ; but we no settlement Sound (Sitka), Portlock, and 1786 the Huss River; but we fact that none OHAL ARGUMENT on I he Aleutian Islands and nei;.'hboiing coast of the con- are equally certain that it can be clearly demonstrated that was made eastward of Bering Bay till the one at Norfolk in 1799. The statements of Cook, Vancouver, Mears (Mirs), La Perouse prove, what we readily admit, that previous to ians had settlements on the island of Kadiak and in Cook's shall lake leave lo use the same authorities to establish the of these settlements extended so far east as Bering Bay. [The Tribunal here took a recess.] Mr. Carter. Mr. President, the diplomatic papers, and espe- cially the instructions from Secretary John Quincy Adams to the American negotiator of the Treaty with Russia and the historical evidence referred to in that letter and other historical evidence which was alluded to by me, establish, as it seems to me, without question, that, so far as the United States was concerned, her objections to the Ukase of 1821 were substantially conlined to the unwarranted assertion of authority on the part of Russia — for such the United States deemed it to be — over the North-west Coast, where the United States had very valuable commercial interests. And it appears equally clear that, so far as the pos- sessions of Russia north of the 60th parallel of north latitude, which includes the whole of Alaska and the whole of Bering Sea and the Aleutian Islands, the title of Russia to the posses- sion and enjoyment of those territories was undisputed and cons- tituted no subject of complaint on the part of the United States; and that, so far as respects the assertion of maritime dominion contained in the Ukase of 1821, while the United States made a formal objection to it, it did not figure prominently as an objection on their part, or make any considerable figure in the discussion. It was under those, circumstances and with those views on the pari of the United States and on the part of Russia that the Treaty of 1824 was concluded, and the question now is as to the interpretation of that Treaty. Us provisions will be found on page 36, of the first volume of the Appendix to the American Case (quoting) : , Am. I. It is agreed that, in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the high contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of tra- ding with the natives, saving always the restrictions and conditions deter- mined by the following articles. Art. II. With a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the high contracting Powers from becoming the pretext for 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, witJiout the permission of the m iMI OF MR. GARTER. m of the con- istrated Ihaf at Norfolk lears (Mirs), previous to id in Cooli's >stablish Ihe 'i Bay. and espe- ims to the 2 hisloi'ical 1 evidence le, without erned, her !onlined to Russia — North-west ommercial IS the pos- h latitude, of Bering he posses- 1 and cons- ted States; ! dominion tates made ntly as an ure in the with those t of Russia ;stion now )ns will be dix to the monly called bjeck- of the iined , either coasts, upon rpose of tra- litions deter- ind of fishing of the M^h trade, it is to any point 3sion of the (governor or commander; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the Northwest coast. That is the important part of the Treaty of 1824, so far as the present discussion is concerned; and the question is, whether the terms " Pacific Ocean " or *' South Sea " include Bering Sea or exclude it. It is insisted on the part of Great Britain that they in- clude it it is insisted on the part of the United States that they do not; and we have to inquire which is the more reasonable interpre- tation under the circumstances of the case, and in view of all the lights which are thrown by the evidence concerning the imder- standing of the parties to the Treaty. Now, it is apparent at the start that that article of the Treaty admits of either interpretation upon its face. " Pacific Ocean " or " South Sea " may include the whole of Boring Sea, as is insisted by Great Britain; and, on the other hand, it may exclude it, as is insisted by the United States. What is the consequence of accepting the interpretation insisted upon by Great Britain? It would be that the United Sta- tes is, by the terms of that Treaty, permitted to land on all the coasts of the Pacific Ocean including Bering Sea, under the suppos- ed dominion of Russia, including the whole of the coast of , Siberia, of the coast of Alaska and of the islands in the Bering Sea : that is the consequence of this interpretation. On the other hand, if the interpretation insisted upon by the United States is correct, ' ' Paci- fic Ocean " only applies to that part of the Pacific Ocean which is south of the Aleutian Islands, and which, therefore, washes only this disputed territory along here (pointing to the map). Its application on the other side of the Pacific, would be extre- mely limited. Well now, we have to say --Iiat the interpretation insisted upon by Great Britain is in a high degree improbable and unreasonable. Why? Because it gives up at once to the United States what the United States never askea for, and that is a right to resort to the coasts of Bering Sea and the islands in Bering Sea. It surrenders the pretension on the part of Russia which had never prior to that time been challenged ; and it gives and surrenders that important right to the United States without any considera- tion, so far as I am able to see. Why should we suppose that Rus- sia intended in these negotiations to give to the United States a right to resort to her coasts and her islands which the United States never asked for? Why should we suppo3e that there was on the part of Russia a design to abandon a pretension which the United States never denied? My first point is that the pre- tension insisted upon by Great Britain is unreasonable upon its face, and that we should not accept it, unless the language on hi C »ifei-.- wmimm ■M j. ' pw -ijMMR;e&i»iimsi. i i[' <>. ^%.. .«rbj % ,%. %^. IMAGE I TEST TA 1.0 I.I 1.25 Photograp] Sciences Corporati( mm IMAGE EVALUATION TEST TARGET (MT-S) '9 /. o %^ y% / 1.0 I.I 1.25 f. litt IIIIM f ™^ IIIIM t m 12.0 mm ]A. II 1.6 Photographic Sciences Corporation ,\ ^ ^\^ o fv L1>' \\ o^ a^ ^i" a^^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (7J6) 872-4503 '1>^ CIHM/ICMH Microfiche Series. Canadian Institute for Historical Microreproductions / ICMH iche CIHM/ICMH Collection de microfiches. I Microreproductions / Institut canadien de microreproductions historiques «iu^lBrf»H*A-l*'^'***- *-!f * ■ • '^■*^.? , '- ff^.y?y r'^n' 174 ORAL ARGUMENT Russia at Ihat time upon the phrase used in the Treaty. The letter encloses the abstract of a communication from Count Nes- selrode to the Minister of Finance. Count Nesselrode had to do whih the negotiations and conclusion of the Treaty. Now, that communication is quite a long one, and 1 shall not read the whole of it ; hut I call attention to the concluding passages of it at page I'iS : But seeing, on the other hand, that the restrictions stated in the opin- ion of tlie Minister of Finance and of State Councilor Drushinin put an end to all the complaints of the American Company, the majority of the members of the committee have found it necessary to investigate the nature of those restrictions, in order to ascertain how far it is possible to insist upon them without prejudice to the rights and advantages accruing from the treaty of April 0-17. As the proposed restrictions refer to two chief points lying under dilferent parallels of latitude, namely : First. To Yakutat (Bering's) Bay, under parallel SO" 30'. Second. To Cross Bay or Sound (Cross Sound) under parallel 57" — the American Company desires that subjects of the United States may not be permitted to hunt or fish in those bays; therefore, the majority of the mem- bers of the committee resolve : That, as regards the first of these points (Bering's Bay), it lies in a latitude where the rights of Russia havt; never formed a subject of dispute, and that this important circumstance permits us to include it in the general declara- tion concerning the Aleutian Islands and the other northern places. That, as regards the second (Cross Sound), however, as it lies under the fifty-seventh degree of north latitude, and consequently within the limits of those islands and regions to which Russia's right of sovereignty has been dis- puted, it is impracticable to apply the same rule or to base the claim, of which it must be the subject, on any other satisfactory proof. That apart from this, in order to exhaust all the measures showing the care of the Covornmenl of His-frnperial Majesty for the interests of the Rus- sian American Company, it is still possible lo instruct Cen-Tuyll to use every effort to persuade the Washington Cabinet that, by accepting this restriction relating to Cross Sound, it will prevent all unpleasant collisions between the subjects of the two powers. That Cen. Tuyll must not, however, make this last proposition until he is convinced that it will be accepted, and that it will not deter tile Covernment of the United Slates from ratifying the treaty of April ii-IT. This resolution was unanimously adopted by all the members of the committee. St. Petersburg, July -21, 182'k Nesselrode. G. L. Kankiun. Sl'EHANSKY. , ' DiasuiNiN. . POLETICA. Sir Charles Russell. This is the hrst occasion on which a document lias been referred to, the correctness of which is im- pugned. 11 IS well that I should call the attention of the Tri- OF MR. GARTER. 175 " together witli a draft bunal at once to it. My friend has read of communications to Jiim prepared by His Excellency, whicii was also read by the above named. " That is an interpolated passage and is not in the original. Oh ! I beg your pardon : I misunderstood; those are omitted in the translation, but are in the original. What my friend read was not the amended trans- lation. * , 1 .1 Mr. Justice Harlan. At the top of the page from which Mr. Carter read we have the words " amended translation. Mr. Garter. That communication on the part of the officers of the llussian Ciovernment intimates the interpretation of the Treaty which I have suggested to the Tribunal — that, so far as regards places north of the 60ll\ parallel of latitude or therea- bouts, they are not regions which -vere ever the subject of dispute, and therefore the exclusive right of Russia to tliemis not alfected by the Treaty; but that, so far as relates to lands south of that latitude, they belong to regions which were subject to dispute and therefore come under the provisions of that Treaty. And 1 ought also to have stated to the Arbitrators, as another ground for sup- porting that interpretation of the Treaty which 1 had insisted upon, that the important articles of the Treaty, articles II, 111 and IV, all refer manifestly and plainly to that Northwestern coast, which is another reason for limiting the meaning of the phrase " Pacific Ocean " to that part of the Pacific Ocean which washes that coast. We see from the papers whicli I have read and which emanated from the Russian Government the interpretationj which that Go- vernment put upon this term. 1 read also paragraph 7, on page lo7, Proceedings of the Confe- rence held June 1, 1824 : That as the sovereipntv of Russia over the coasts of Siberia and the Aleu- tian Islands has lonj; been admitted by all the powers, it follows that the said coasts and islands cannot be alluded to in the articles of the said treaty, wnich refers only to the disputed territory on the Northwest coast of America and to the adjacent islands-, that, even supposing.; the contrary, Russia has established permanent settlement, not only on the coast of Siberia, but also on the Aleutian ^'loup of islanils; hence American subjects could not by vir- tue of the second article of the treaty of April o-H, land at the nianlime places there nor carry on sealinj; and fishiiiir without the permission of our commandants or frovernors. Moreover, the coasts of Siberia and the Aleulian islands are not washed by the Southern Sea, of which alone mention is made in the first article of the treaty, but by the Northern Ocean and the Seas of Kamchatka and Okotsk, which form no part of the Southern Sea or any known map on any geofjraphy. The President. Those are the proceedings of the Russian offi- cials; there is nothing international about them. Mr. Carter. Not at all; but the learned Arbitrators will per- 'li-^ i I 1 '1 iU^ '« must, according to American law, he determined by another De- Tar rAent of the C.overnmefit - the Judicial Departmen , for that is a ludicial question. He does not state what his own mterprotalion is for, if he did, it would have lo go before the Senate and it might raise ;mbarrassing questions there. He says m substance the point is of no practical consequence, for our people will neve, go there; there is no danger of that; and if you say anything about it the effect would be to put fancies into their heads which othei- wise they would not entertain. The best thing is to say nol iing about it and let this Treaty be ratified as it stands. If, after that, fouf Government insists xq>on doing anything further, let them do it But my answer to that note, if you lodge it wit^ me, must be that it raises a question as to the interpretation of the I'-eaty - a question which must be settled by the judicial Department ot the AmeAcan Government. " Now I cannot he p thmk.ng^ that Mr Adams and Jhe American Government would be open to the charge of bad faith if they had made such an answer as that, and should afterwards assert any different interpretation of the Treaty than that which Baron Tuyll suggested. I do not think that we could relieve Mr. Adams or the American Government from the «■■ ■■ OP MH. CAHTEn, 17(« imputation of bad faith if they then i)oh"cv(Ml tliat the Treaty bore a different construction than that and ilid not franiily say so to Baron Tnyll. Baron Tuyll tooi< the advice and acted upon it. He said : "I will not file this note until the Treaty is ratified, and even then I will not unless my (iovernment tell me to do so." He wait- ed, and his Government directed him to file bis note, and he did — he filed a note which explicitly stated bis interpretation. That note was never answered. Now, if the American Govern- ment was ever at any time to dispute the interpretation I bus put upon the Treaty, then was the time for them to do it, and if they did not do it then, they would be preclude daftcrwards from doing so. I cannot help thinking, therefore, that Ibis transaction, sub- sequent to the actual conclusion of the Treaty, is conclusive as to the interpretation of the Treaty suggested by the l{ussian (iovern- ment and now insisted upon by the United States. The President. Don't you" think the silence of Mr. Adams was rather sign;. leant? Was it not rather unusual not to answer a written communication? Mr. Car(.3r. It was significant in the way I have stated. It said to Baron Tuyll : "It is not the province of the Executive part of the Government of which I am a representative to put a construc- tion upon this Treaty. If I should give you a construction, it would not be binding; for at some other time it might become a question, and the Supreme Court of the United States would be alone competent to decide it." But be goes on to encourage him to take no step to settle the point; and that, I must confess, would be astonishing on the part of Mr. Adams, if he thought that at any time the American Government would set up a different interpre- tation. The President. Did not the silence of Mr. Adams leave it upon technical grounds? Mr. Carter. Yes. But it is a question of candor among the repre- sentatives of two great nations approaching each other in that way. Mr. Adams did not put himself upon this ground and say : " You must not interpret my language or my silence beyond what it may immediately import. " He did not put Baron Tuyll upon his guard at all. That attitude was not consistent with good faith on the part of Mr. Adams, if be did not feel satisfied, and thought that a different interpretation would at any time be set up. So much for the American Treaty. But that does not interpret the British Treaty, and it is to that that the attention of the Tribu- nal is more immediately directed. The language of this latter, although not precisely, is substantially the same; and in the first Article of that Treaty, found on page 39 of the first volume of the American Appendix — liiMMMiHliM yjjMi ■■«! i H Di uuijiJT \"^ 180 OIIAI- Anr.UMKNT Mr. Justice Harlan. Tlie word " Grand " should appear before " Ocean. " ,. i . .1 . . i 1 1 Mr. carter. I have no other evidence ot what Ihe lexl sliould be than the American original; it is as it is lierc, for aught I now. Mr. Justice Harlan. There was a Treaty in Knglish? Mr. Carter. Yes. (quoting): • It is agreed ll.at. in any part of the fJreat Ocean, commonly caHed ll,e Pariflc Ocean, or South Sea, the respective citizens or subjecls oflhc high contraclinL' Powers shall be neither disturbed nor restrained either in navi- "ation or in (Ishin,. or in the power of resorting to the coasts "I-^;! PO'" which may not already have been occupied, for the purpose ol l.'ad.n^ ^ '« the natives, savin« always the restrictions and conditions determined by the following articles. Whether the , word " Grand " belongs there before the word " Ocean " or noti is of no consequence; 1 assume that the same thing was intended by the Articles in each Treaty. That was the Treaty negotiated between Great Britain and Russia. Psow, applying the same method of interpretation which I have to that of the United States, let me say that we know, of course, the views with which the Russian Government entered into the negotiation ot this Treaty with Great Hritain, lor they were substantially simul- taneous with the negotiations with the United States ; and of course the Russian Government must have approached the negotiations as it approached those with the Government of the United States In reference lo the views of Great Britain, it does not follow that she had the same purposes ^s animated the United States Govern- ment Her purposes may have been widely different from those ot the United States negotiators, or those of the United States Govern- ment- but we have this fact, that the negotiations were earned on -oniointly, and. presumably , the views of the tu-x) Governments were substanti'ally alike. But, so far as the instructions of Great Bri am to her negotiators arc concerned, I must freely and fully admit tliat instead of being mainly confined, as in the case of the United St! -s to the question of the disputed territory on the North- West Coast, they placed special importance on the maritime pretension of one hundred miles over the sea. The negotiators representing Great Britain were instructed that that was a point which they must specially and, primarily, attend to, and that it was of more conseqiencc than the disputed question ot territory on the North- West Coast. In that respect there was a difference. But how was this point arranged? Mr. George Canning instructs Mr. Strat- ford Canning at St. Petersburg how to proceed on that point. At page 2G0 of the first volume of the American Appendix is ound a etler of instructions from Mr. George Cannmg to Mr. Stratford M^MHM ■■ 1>^. OK MH. CAHTER. I8i Canning at I ho Court of St. Pelershurj.?, in rcforonco to the manner in which ho was to conduct Iho negotiations (quoting) : The corrcspoiidence whicli liiis alrfa m-- Tlio tondpiicy of sncli ,'iiinsl wliicli wi', on our own behalf nml on that of lilt) wholf civilized world, iirolest. No s|>ecillcation of this sort is found in the eonvenliou with the United States of Anieriea; and yet it can not be doubled that the AtnerieaiiS consider themselves as secured in I be rif;bt of navij^aling Hebrinf,' Straits and the sea beyonil (liem. it can not be I'xpeeli'd that luif^land should receive as a boon that wbieh the United States hold as a light so unquestionable as not to be worth recor- ding. Perhaps the simplest course, after all, will be lo substitute, for all Ihat pari of lli(> " I'rojet" and " Conlre-I'rojet " which relates to niarilinie rights, and to navigalion, the first two articles of the convention alr^'ady concluded by Ihe court of St. Petersburg with Ihe United Slates of America, in the order in which they stand in that convention. Ilussia can not mean to give lo the United States of America what she wilhhoids from us, nor to withhold from us anything that she has consented . to give lo the United States. The uniformity of stipulation in pavi materia gives clearness and force to both arrangements, and will establish Ihat fooling cd" e([uality between the several contracting parties whicli it is most desirable should exist between three jiowers whose interests come so nearly in contact with each other in a ])arlof the globe in which no olhei- power is concerned. This, therefore, is what I am to instruct you to propose at once to the Russian minister as cutting short an otherwise inconvenient discussion. Thcro is his instruction to the representative of the govern- ment of Great Ilritain in St. Petersburg. Mr. Justice Harlan. Let me interrupt you just a moment. I call your attention to the apparent omission in the English translalion of the treaty between Russia and Great Britain. The l']nglish translalion 1n the British case accords with the American translation. Mr. Carter. Very likely it may; I do lot know. LordHannen. The word " great " is omitted. Sir Charles Russell. Yes, the word " great" is omitted, loo. Mr. Justice Harlan. I do not know whether there was an omission, or whether there were two treaties, one signed in English and one signed in French, or whether one was a trans- lation of the other. If there was an error in the translalion, both sides have committed the error as to the second article, because the word " great " is left out there. Mr. Carter. There is one in Russian, too. Mr. Phelps. There were duplicate drafts, one in French and one in English. Sir Charles Russell. There was one in English and one m French. Mr. Foster. They were both originals. ■A It rf . ^. tfUH ■m OF MR. CAHTEH. m Mr. Carter. Is llicrc unylhing more that llio loanied Arbili'ulor wished to ask? Mr. Justice Harlan. No. Mr. Carter. I n>sunio, then. The Hiilish Minister of Foiei^n AITairs instructs the British Ambassador in St. Pelersl)urg, who is negotiating the treaty, to carry out the ohjeit which Great Britain has in view, of displacing the assumption of llussian dominion in Bering Sea; hut to carry it out, if ho can, by adopt- ing the lirsl two articles of the American treaty, ihus avoiding any discussion with the tJovernment 'y where il is situated. That is undoubtedly true, if it has a situs; but 1 suppose that my learned friends would nol agree with me that seals have a situs in the territory of tho United States at all times. If they have no admitted ,s/7?/.v in the United States, the question as lo whether they have a. situs there cannot be determined by any appeal to mu- nicipal law alone, but must be determined by an appeal lo inter- national law. In all tbi I do not mean that municipal law in relation to pro- perty is of no importance in this discussion. On the contrary, it is of tile very highest impoi;tance that we should seek it, and know just what it is; and it is of consequence in this discussion because il is evidence of what the law of nature is. Property never was created by municipal law at all ; that is to say, by positive legislative enactment. Societies have not come together and created pro- perty. Property is a creation anterior to human society. Human society was created in order lo defend it and support it. It is one of its main objects. One of the main objects for which human society was created was the defence of the institution of propertv- 11 rests upon the law of nature ; and the whole jurisprudence respecting property as it stands in the jimnicipal law of the civili- zed states of the world is a body of unwritten law for the most part. It is derived from the law of nature. Even in those nations where the civil law is crystalized into the form of codes, there areno laws, no enactments, which declare what shall and what shall not be the subjects of properly. At least, I apprehond so. Property is assu- med as already e.visting. It stands upon the law of nature. The questions, however, what shall be property and what shall not be unicipal country. > rnit(>(l M'v form lio adop- als lo be that the lunicipal ! United ich is to iew, the between interna- property must be (?re it is OF MR. CARTER. properly, and what shall be the rules respecting the protection which is given to it — all these questions have been discussed for a thousand years and more, in municipal law, by learned tribunals, in thousands of diflerent shapes and forms ; and consequently the whole law of nature, so far as it affects tiie subject of property, will be found to be developed in a high degree in municipal law. There- fore, and to that extent, 1 concur with my learned friend, that it is highly important to investigate the municipal law upon the sub- ject of property; and wherever it is found imiversally concurring upon a given point, it may be taken as the absolute voice of the law of nature, and therefore of international law. [The Tribunal thereupon adjourned until Tuesday, April, 19, 1893, at H. 30 o'clock a. ra.] > that my a situs in have no whether al to mn- to inter- )n to pro- rary, it is md know a because lever was ogislative ated pro- Human it. It is or which itution of i .1 if 1, ^prudence the civili- Most part, ons where ■eno laws, not be the ty is assu- ilure. The lall not be % 13 ; i ELEVENTH DAY. APRIMU^", 1893. The Tribunal convoned pursuant to adjournmenl. The President. If you please, Mr. Carter, you may continue vour artrument. ■ • i i Mr carter. Mr President, ti.e point upon which I am n.m cnKaged r.-lates to that branch of our argument which ^ ca s w. h the question of the aUege.i property interest ot the United States in he fur souls of Alaska. I had briefly spoken yesterday to he cflLt that the rival contentions of the two (loyernments upon tim s bleot are to be determined by international law;butin detennm- ns what international law was, great advantage would be tound n an inquiry into what has been decided by municipal hiw and by the municipal law of various nations so far as that law shall be found to be consentaneous upon this point. The rival contentions of the two parties I should perhaps In-.efly reneat That of (Jreat Britain is that the fur-seals ot Alaska are "cLommunes, not the subjects of property, but open lo he apF^" nriation of all mankind; c>nd that, to.., because they are w Id am- mal The position taken on the part of Great Britain is in sub- Xnce that no wild animals are the subjects of property, and hat seals, being wild, are not the subjects of property. The Un ted States on'the other hand, insist that whether an am mal is the sub oct of property or not depends upon its nature and habits; that he two term " wild ' and " tame " are descriptive of na hire and habits to a certain extent; but, in order to determine whether any particular animal, whether wild or tame, is the subject of pro- perty we must go into a closer inquiry into its nature and habits and if it be found that an animal, although commonly designated as w id, has such nature and such habits as enable man to deal with it substantially as he deals with domestic animals, to establish r s ecies of husbandry in respect to it then, nx respec to the qn s- tion of property, the same determination must be made as in the ca" of domestic; animals, and the animal must be ^-lai^d to fho subiect of property. The point, therefore, upon which vvehrst nsitii that in considering whether an animal, whether he is desi- gnated as ' wild " or " t'ame " is the subject of property or not %■ «»■' Irt M :ontinurt iim now als with ^liilos in ^ to llie pon (his plorin ill- bo found law and shall bo ps briefly iaska are le appro- wibl ani- s in sub- ■rly, and My. The animal is id habits; of nature 3 whether ct of pro- id habits; losif^nated in to deal ) establish 1 the qncs- ! as in the fired to be ch we first he is desi- rty or not Oh Mil. CAUTKn. wo must inslitnto a oaroful inquiry into its nature and habits and Iho results of that incpiiry will dolormino llii^ (juosliou. In this parliculiir I think I am supported by the best autborilios. (Iban- collor Koul, whoso authority 1 am {ilad to say is roeo};ni/od by my learned IViomlson the other »'uU\ for they refer to this very passage! whieh 1 am about to read to the Tribunal, says (I'age 4;j of our Arj:;ument) : Animals feric nnturw, so long as Itiey are roclaiinnd t>y tlie art and power ol man, niv also llie subject of a iinaiiilml properly; but wlion they an' alian- (loncd, or escape, and retnrn lo their natural liberty and ferocity, witliont llie miitniisrereytrtKli, the [iropeity in tlieni ceasi's. Wliile this (|nalilied properly continues, it is as nuicli under Iht; prolctction of law any oilier prop(;rty, and pveiy invasion of it is redressed in llie same manner. 'I'lie difllculty ofascer- taiiiiiif; with precision the application of the law aiises from the iraut of snttie arliiin ilrlrnniniilc sUmdurd or nilfi liy which to delermine when an animal is ferx, vel doinilw nnlurw. If an animal helonjfs lo llie class of lame animals, us, for instance, to the class of horses, sheep, or cattle, he is then a siihject clearly of absolute properly; but if he beloni^'s to t'.iC chiss of animals, which are wild by nature, and owe all llieir temporary docility lo the discipline of man, such as deer, fish, and several kinds of fnwl. Ilien the animal is a sub- ject of (iiialified properly, an of taking venison from llieni and furnishing a snp|)ly of il to the niarki't, delcrinincd that Ihey wiM'e personal piopcrly and therefore dis- Irainahle for rent. Tiu* ground was that although deer Ixdong to the class (d" what is commonly designated " wild " animals, never- theless when they are taken and kept hy man for the pur[)oses for wiiieh it was proved in tiial case they wer(!ke|)l, when they were treated hy man in the way in which they were proved to have heen treated in that case, although wild animals, they are used for the same int(>nts and purposes as domestic animals are used and should be classed as persoiuil property just as dctmestic animals are so classed. Substantially the same decision was made in reference to the same animal in the case of Morgan vs. the Earl of Aherf/at^emii/^ which is reported in the 8th f.ommon Hench Heports. There the question was, upon the death of llie owner of a park, whether deer contained in the park went to the heir of the owner or to his executor; in other words, it was subtantially the same question whether they were attached to the soil and formed a part of the realty, and therefore were not distinctly personal property, or whether they went t»t the executor, as being distinctly personal property. In that case a great deal of evidence was gone inl upon the trial for the purj)ose of showing how those particular deei were kept, treated and used in that park. The whole question of property in live animals w;iis very much gone into and discussed, it was shown by evidence that there was a large number of deer there; that they were cared for; that at times they were fed; that they were in the habit of resorting to particular places in the park; and that from time to time selections were made from the number for slaughter and the victims were sold in the market for venison. All that was proved. There was a verdict in that case for the plaintilT which was based upon the charge of the judge to the jury that they might take this evidence into consideration in determi- ning the question whether the deer were property or not; and that verdict for the plaintitf established that they were the property of the executor; that they went to the executor instead of to the heir, and were therefore personal property. On a review by the whole court of that verdict it was decided that this evidence was all pro- per and relevant to the question; that it was all appropriate, and relevant to the point whether the animals were property or not; and that it did satisfactorily determine, or was a sufficient ground upon which the jury might find, that the animals were personal property. OF MFl. r.AHTKH. Thcso nulhorilu's lo which I Imvo thus alluded aro (\\nlo suffl- ci(Mil fo cstiiljlish lh(! only poiiil for which I at prcHfiil cilc Ihom, namely, that in order lo determine whether an animal commonly designated as " wild " is the subject ol" property or not wc must institute an imiuiry into the nature and hahiisoi" the animal — that the ^(Mieral terms "wild "and "tame "are not sufliciently signili- canl, for the purpose— that a close inquiry into its nature and habits with the view of seeing whether such nature and habits and the uses to which the animal is put are the same that are char- acteristic of domestic animals. If so, they are property the same as domestic animals are. Now, then, what is the case with the fur-seal? So far as respects municipal law — for I am now examining the question wholly as it is allected by the doctrines of municipal law — it must be admitted that tln^ case of the fur-seal is a new one in the law. It has nowhere been specifically decided; but cases as to whether animals more or less resembling the seal may or may not be the subject of property have arisen and been decided in muni- cipal law. There have been a great many cases decided in respect to animals as to which it was doubtful whether they belong to the category of wild or tame — that is if you treat the terms " wild " and " tame" as a juridical classification — or whether their nature and habits w:.e such as to make them properly the subjects of pro- perty. Take the case of wild bees, for instance. There is an ani- mals which lies quite near the boundary line which separates vvild f' im lame animals; and the inquiry was made at an early period in municipal law — a period so early that tradition does not inform us of the first instance when the case arose — wbether that animal was the subject of property or not. The same question has arisen in reference to wild geese, and swans. Those animals belong to the classes commonly designated as " wild " ; but they lie near the boundary. They may sometimes be reclaimed, as it is called. The question has arisen and been determined whether, when re- claimed, they are, notwithstanding the wildness of their nature, the subject of property. The same question has also arisen in reference to deer and pigeons and other animals. Now, therefore, we are to examine those instances in which the municipal law has dealt with the cases of animals commonly desig- nated as " wild ", but which still have, in their nature and habits, some characteristics which assimilate them to tame ones, and see what conclusions municipal law arrives at. In general these conclusions are all exceedingly well stated by the most familiar of au- thorities in the English law^ and one of the most elegant and pre- cise, I mean Blackstone. I refc. to his treatment of the question. J read from what is quoted from him on page 43 of my argument : 4. ii> Si !■ HI i. [if ';r 198 ORAI, ARGUMENT U. Ollior iininiiils tliat, aro not of a tame and doniostir natnrp aro eitlier not till? objerts of prO|ioity at all or else fall under our other division, namely, that of qwiUficd, limited, or s])eci(d pri)ppi'ly, which is such as is not in its nature pernianont, but may somcliines subsist and at oilier limes not subsist. In discussing which subjerl, I shall, in tin; (irst place, show how this species of property may subsisl in such animals as are ferw miturx, or of a wild nature, and then how it may subsist in any other tilings when uiuler partic- ular circumstan.es. First, Iheii, a man may be invested with a qualified, but not an absolute property in all creatures that are ferx naturx, either per industriam, p'pier impotentinm, or propter privilegium. i. A qualified property may subsist in animals ferse nnturx, per industriam hominis, by a n>an's reclaimiiKj and making them tame by aii, iiulustry, and education, or by so conliuir.n; Ihem within his own immediate power that they can not escape and use their natural liberty. And under this head some writers liave ranked all the farmer species of animals we have mentioned, apprehendiiig none lobe originally and naturally tame, but only made so by art and custom, as horses, swine, and other cattle, which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity, and are, therefore, say tliey, called muniiiwta. qua^i manui assueta. Hut however well this notion may be founded, abstractly considered, our law apprehends tlie most obvious distinction to be between su-'h animals as we generally see tame, and are therefore seldom, if ever, found wanderitig at large, which it calls dominnlw iiatitrw, and such creatures as are iisually found at liberty, which are liiere- fore supposed to be more emphatically /era; uutura;, though it may happen that the latter shall be sometimes tamed and conllned by the art and industry of man— such as are deer in a park, hares or rabbits in an inclosed wairen, doves in a dove house, pheasants or partridges in a mew, hawks thai aii> fed and commanded Ir, their owner, and fish in a private pond or in trunks. These arc no longer the property of a man than while they continue in his keeping or actual possession; but if at any lime they regain their natural liberty his property instantly^ ceases, unless they have animum rcvertrndi, which is onh, to be known by their usual custom of returning. A maxim which is borrowed from the civil law, •' rererdendi animum videntitr desincre habere time, cum rcvertcndi consuetiidiiwm dcseruerint. " The law, therefore, extends this possession further than the mere manual occujialion; for my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where lie pleases, is nevertheless my property, for he hath animum revertcndi. So are my pigeons that are flying a! a distance from their home (especially of the carrier kind), and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester; all which remain still in my possession, and I still preserve my qualitied property in them. But if fhey stray without my knowledge, and do not return in the nsual manner, it is then lawful for any utranger to take lliem. Hut if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure, or if a wild swan is taken and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for anyone else to take liiiu; but otherwise if the deer lias lieen long absent without returning, or the swan leaves the neighborhood. Hees also are f'erx naturx; but, when hived and reclaimed, a man may have a qua- lified property in them, by the law of nature, as well as by the civil law. And to the same purpose, not to say in the same words with the civil law, speaks Bracton; oc-upation, that is, hiving or including them, gives the property in bees; for, 'liough a swarm lights upon my tree, 1 have no more property in .m' 11 ro arc either ision, nninely, ; is not in its ss not subsist, iw Miis species , or of ii wild under partic- ot an absolute strinm, ptcpfcr per industruim industry, and lie ])o\ver that tliis bead some ive mentioned, ily made so by 'igiually left to 9: their food at are, therefore, veil this notion le most obvious tame, ami are calls domimttse •bicli are there- it may happen irtand industry nclose law, therefore, upafion; for my h he is at liberty lie hath animuin from their home :hased out of my resler; all which itied property in ot return in the 1. But if a deer, Lit upon him, and and marked and continues, and it he dee:- has been diborhood. Kees may have a (jua- 10 civil law. And civil law, speaks s the property in more properly in ^1 OF MU. CARTER. 199 them till I have hived them than 1 have in the birds which make thr-r nests thereon- and, (berefore, if another hives Ihem, he shall be their proprietor; but a swarm, which (ly from and out of my hive, are mine so long as 1 can keep them in sight and have power to pursue them, and in these circums- tances no one else is entitled to lake them. Hut it hath been also said that with us the only ownership in bees is raiiom soli, and the charter ol the forest, which allows every freeman to be entitled to the honey found wilhiu bis own woods, affords great countenance to this doctrine, that a qualified property may be bad in bees, in consideration of the property of the soil whereon they are found. ., , „ ., • , .. In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible : a property that may be destroyed it they resume their ancient wildness, and ar,; found at large, tor ii the pheasants escape from the mew, or the lishes from the trunk, and are seen wandering at large in their pioper element, they become fer.r nalurx again, and are free and open to the first occupant that has ability to seize them. Hut while they thus continue mv qualified or defeasible property, they are as much under the protection of I he law as if (hey were absolutely and indeiea- sibly mine; and an action will lie against ar v man that detains them Irom me or unlawfully destroys them. It is also .' much felony hy common law to steal such of them as are fit for food as \i is to steal tame animals; but not so if they are onlv kept for pleasure, cur.osity, or whim; as dogs, bears, cats, apes, parrots, "and singing birds; because their value is not intrms.c, but depending only on the caprice of the owner; though it is such an invasion ol property as may amount to a civil injury, and be redressed by a civil action. Yet lo steal a reclaimed hawk is felony both by common law and statute; which seems to be a relic of the tyranny of our ancient sportsmen. And, among our elder ancestors, the ancient Britons, another species ot reclaimed animals, viz., cats, were looked upon as creatures of intrinsic value; and the killing or stealin.,' one was a grievous crime, and subjected the offender o a line; especially if it belonged lo the King's household, and was the cmtos hor- rei vcgii, for which there was a very peculiar forfeiture. And thus much ol qualified property in wild animals, reclaimed pt-c indmtnam*. The term which descrihes this species of ]}ropcriy— property per indifslriam—hidicales the foundation upon which it rests. It is propcvtv r-eated by the art and industry and labor of man. It points out'thal this labor, art, and industry would notbe called into activity, and would not produce its useful and benelicial results, unless it Had the reward of property in the product of it, and that therefore the law assigns to such animals the henelils and the pro- tection of property for the purpose of encouraging the industry which creahis it. , i n That is the language of Blackslone. It is taken almost bodily from another earlier writer in the law of England— I mean Bracton. And it was by him undoubtedly derived from the civil law in which all or nearly all of these doctrines were established at a very early period indeed. At a very early period in the develop- ment of the Roman law, these doctrines were established. I now call the attention of the Tribunal to further extracts from writers 1. Book II, p. 391. ... - - ¥i II 4 HBSB9! 200 ORAL ARGUMENT ■i ; I * r 'I 1. I t upon municipal law and I am going to read from page 108 of our Argument, and first from " Studies in the Roman Law " by Lord Makenzic, a well known authority. He says : All wild animals, wlietlier beasts, birds or fish, fall under this rule, so that even when they are caught by a trespasser on another man's land they belong to the taker, unless they are expressly declared to be forfeited by some penal law, (lust., -2, 1,12; (Jaius, 2, 66-09 ; Dig., 41, 1, i, pr. Ji.).), t>eer ina forest, rabbits in a warren, fish in a pond, or other wild animals m the keeping or possession of the first holder can not be appropriated by another unless they regain their liberty, in which case they are free to be again acquired by occu- jiancy. Tame or domesticated creatures, such as iiorse, sheep, poultry, and the like, remain the property of their owners, though strayed or not confined. The same rule prevails in regard to such wild animals already appropriated as are in the habit of returning to their owners, such as pigeons, hawks in pursuit of game, or bees swarming while pursued by their owners (lust., 2, 1, 14, lo). .. ■. y . Then again, a very ancient authority in the Roman law, Gaius, says (Elments of Roman Law) : Skc. 68. In those wild animals, however, wliich are habituated to go away and return, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down thatonly the cessation of the instinct of returning is the termination of ownershii), and then the properly iu them is acquired by the next occupant ; the instinct of returning is held to be lost when the habit of returning is discontinued. . Another celebrated writer in the civil law, Savigny, says : With respect to the possession of animals these rules are to be applied thus : First. Tame animals are posses.sed like all other movables, i, e., the pos- session of them ceases when I bin' can not be found. Second. NViM animals are only possessed so long as some special disposition (cuslodia) exists which enables us actually to get them into our power. It is not every custodia, there- fore,' which is sufficient; whoever, for instance, keeps wild animals in a park, or fish in a lake, !ias undoubtedly done something :o secure them, but it does? not depend on his mere will, but on a variety of accidents whether be can actually catch them when he wishes, consequen.ly, possession is not here retained ; quite otherwise with fish kept in a stew, or animals in a yard, because Ihen tlioy maybe caught at any moment (lib. 3, sees. 14, 15, de poss.). Third. Wild beasts, tamed artificially, are likened to domesticated animals so long as they retain the habit of returning to the spot where their possessor keeps them ((ionec animwn, i. e., consuetudirtern, revertendi habcnt). And another very celebrated writer, not upon municipal law, but upon the law of Nature and Nations, PutTendorf, says (lib. 3, cap. I, sec. 3) : Although a loss seems to refer properly to property, yet by us it will be generally accepted as embracing all injury that relates to the body, fame and modesty" of man. So it signifies every injury, corrL«ption, diminution or remo- val of tiiat which is ours, or interception of that, which in perfect justice we ought to have ; whether given by nature or conceded by an antecedent liuman M Jimfmimiim > umi ' m> i m«M ■■ ■iaiiiiiM iiiliii " ; jieiii«SK^-,;4ia4i'<«a*^;*as-*'^ OF MR. GARTER. 201 act or law ■ or, fiually, the omission or denial of a claim which another may have unon'nshv actual ohliffalion. To this tends the I3lli Declamation of Quirailian, where he plainly shows that one hud inflicted a loss who poisoned the ilowers of his own garden wherehv his nei^ihhor's hees perished, Yet the convincinc reason consists in this : Since all agree that hees are a wander.iifj kind of animate life, and hecause they can in no way he accustomed lo take their food from a given place ; therefore, whenever there is a right ol taking them there also, it is understood, is laid a general injunction to he ohserved hy all neighhors, to permit hees to wander everywhere without hindrance from anyone. ^, The passage from Braclon which follows, 1 will not to read because il is expressed by lilackstone almost in the same terms. The doctrine is stated veVy intelligently and clearly by Bowyer, a writer upon the Civil Law : Wild animals, therefore, and l.irds, and fish, and all animals that are produced in the sea, the heavens, and llie earlh, hecome the property, hy natural law, of whoever lakes possession of them. The reason ol this is, that whatever is the property of no man hecomes, hy natural reason, the pro- perlv of whoever occupies il. • p .1 It is same wlielher I he animals or hirds he caught on I he premises of the ■ catcher, or on those of another. Hut if any one enters the land ol another to sport or hunt, he mav he warned off hy the owner of the land. When you have cau"l.t anv of these animals il remains yours so long as it is under the res- traint of your custody. Hut a:; soon as it has escaped from your keeping and has restored itself to natural liherly it ceases to he yours, and again hecomes the property of whoever occupies it. The animal is understood lo reccvor its natural liherly when it has vanished from your sight, or is hefore your eyes under such circumstances that pursuit would he diftiruU. Here we lind the celehrated maxim of Gajus : Qund iiullim est, td ratione mturali occupanti conceditiir. It is founded on the following doctrine: (irant- in- ihe institution of the rights of property among mankind, those things are each man's property which no other man has a right to take from hiin. ^ow, no one has a right to that which is res nuliius; consequently whoever possesses rem mdUus possesses that which no one has a right to take from him. It is therefore his property. I pass on to nearly the middle of page 111 : - The general principle respecting the acquisition of animals ferai naturse is that it is absurd to hold anything to be a man's property which is entirely out of his power. But (Irotius limits the application of that principle lo the acquhition of things, and therefore justly dissents from the doctrine of Gajus tiven above, that the animal hecomes again res mdlius immediately on reco- vering its liberty, if it be diflicult for the first occupant lo retake it. He argues that when a thing has become the property of any one, whether it be afterwards taken from him by the act of man, or whether he lose it troin a natural cause, he does not necessarily lose his right to it together with the possession; but that it is reasonable lo presume that the proprietor o a wild animal must have renounced his right to it when the animal is gone beyond the hope of recovery and where il could not be identified. He, Iherelore, argues that the -ight of ownership lo a wild animal may be rendered lasting, notwithstanding its fiight, by a mark or other artificial sign by which the creature may be recognized. #»■ { i 202 ORAL ARGUMENT Mr. Justice Harlan. The last paragraph in lht.t citalion is imporUinl. Mr. Carter. The last paragraph from Uowyor is perlinenl. It is on page 112 : With regard (,o creatures wliicli have tlie habit of going and returning, such as pigeons, llicy remain Hie |iro|jerty of lliose lo wiioiii liiey lielong so Ion" as Ihey relain Ihe animus rcvei'lowli or disposition lo return. Hut when they lose tlial disposition Ihey become tiie profierty of wiionisoevor secures them. And tliey must l)e iieid lo liave lost the animus revevtendi as soon as they have lost the habit of reluming. Such are Hie doctrines ol' the Roman law', wliicii are conl'ormahle to Ihe English law, with the qualitication of Gro'lius, which is applicai)le lo tiie case of all animals fcix nalurw, tiial is lo say, liiat a marlv or collar prevents the rights of the proprietor of a wild animal being extinguished by its escape from his sight and pursuit. 1 call the altenlion of the Tribunal to a decision by the Supreme Court of the State of New York, one of tiie courts enjoying the highest autiiority la the United States, and especially enjoying the hi'diest authority at the time this decision was made. It is the case of Amory vs. Fli/n and is reported in the lOth Johnson's Reports i02. It is coniained on )age IIG of our Argument. In that case one Amory brought an action of trover, as it is called in the English law, against Flyn before a justice of the peace for two geese. That is to say he brought an action for damages for a trespass done to him in taking geese which he alleged to be his property. Tills was a case where geese wild by nature had been reclaimed by man to such an extent tljialthey were wonted to a particular spot and yet were in the habit of straying away from it; and having strayed olT upon a certain occasion another mim took them and handed them over to still another am' ' t otiier refused to give ihem up on demand. The (Question wa. tlier the plaintitf liad a property in them. It appears to have been held in the court below that he had no properly; but the Supreme Court reversed this judgment, saying: ■ ; The geese ought lo have been considered as reclaimed so as to be the subject of property. Their identity was ascertained, they were tame and gentle, and had lost the power or disposition to lly away. They had been frightened and chased by the defendant's son, with the knowledge that they belonged to the plaintiff and the case affords no color for the inference that the geese had regained their natural liberty as wild fowl, and that the pro- perty in them had ceased. The defendant did not consider them in tiiat light, for he held them in consequence of the lien which he supposed he had acquired by the pledge. This claim was not well founded, for he showed no right in Ihe persons who pawned them for the liquor so lo pawn them, and he took them at his peril. Here was clearly an invasion of private right. . i nve OF MR. CAHTER. 203 1 call attention to a later decision by the same Supreme (-ourt of New York which is reported in i:) Wendell's Reports so much as wo 1 ave printed of it is on page 117 of the Argument. he pro- positions which are prefixed to the report m the case as bemg those which are decided by it arc tiiese : owner o he so^. Iml, lo l.im ^vho l,a.l tlu- former possession alll.ouKl he ca not enter upon the lands of other lo retake them without sub.,ecl.nK h.u.self to an action of trespass. The facts of that case appear to he these : One KiUs had brouKht an action against C.olV in a justice's court an action m ulc nature of an action of trespass, for taking and destroying a swarm of bees and the honey made l)y them. The plaintilf in his suit before the justice recox^red a judg- ment and that was aflirmod on appeal by the court ot Common Pleas of the county where the suit was brough . Fhe «l^te dant then carried the case by what is called a writ of error, to he principal court of the State of New York at that time -not tlu, Lhest appellate court, but yet a high appellate court. Mi. Jus- tice Nelson' very celebrated in the United St.ite. as one ot 1. most distinguished judges, delivered the opimou ot thecouit. llcsajs. Animiis ferx milurx, when reclaimed by the art and power of man, are the J: u "uoi;, .Eat L hiving or inclosin, them, ^iv- Pfopery^- ^;-;-,^ ^^ are now a common species of properly, and an article ol t''^^^' ^^^ •- \\;;; . ness of their nature, by experience and practice has become ^^^^"'" > ^"/^ ecled to the art and power of man. An unreclaimed swarm, ike al ot er wild animals boionRs to the first occupant - in other words to the peison who nr Uves i enf; but if the swarm lly from the hive of another h.s qual - fl d iroue ly CO tiimes so long as he can keep them in sight, and possess s U e power to pursue them. Under these circumstances, no one else is entit- led to take them. (2 Black. Comm., m; i kenl's Lomm., .J04.) . A case decided by the Court of Common Bench in GreatBritain and to which I have already referred, that of Morgan and anothei against the earl of Abergavenny is printed almost m extenso beginning on page 119 of our argument. It is too long to be ead butThe whole of it has been printed in order that the Iribunal '% V ■■"*! tmd J »: 1Bk^'«j 204 ORAL ARGUMENT may observo Iho circumstances under which that case arose, and thus ascertain the |UTcise point which was decided. But I will call the attention of the Arbitrators to the paragraph near the bottom of page 125, I have said that in that case, the question being whether deer were pnjperty or n( , evidence was given len- ding to show their nature and hai)its and the purposes to which tliey were a|)|)lied. The cotirl says : III coiisiilorinf^ whether tlie evidence warranted the verdict npon the issue, whether the (h^er were tamed and reclaimed, tiie observations made liy Lord Chief Justice Wilh's in the case of Davies v. Powell, are deserving of attention. The (iiderence in ref,'ard to liie mode and object of Ueepinj; deer in modern limes from that which anciently prevailed, as pointed out by I,ord (Ihief Justice Willes, can not be overlooked. It is truly staled that ornament and prolit are the sole objects for wbicli deer are now ordinarily kept, whether in ancient lejjal parks or in modern inclosures so called; the instances being very rare in wiiicii deer in such i>laces are kept and used for sport; indeed, their wiiole management dilfering very liMle, if at all, from that of ;sheop, or of any other animals kept for piotit. And, in this case, the evidence before adverted to was that the deer were regularly fed in the winter; the does with young were watched; the fawns taken as soon as dropped, and marked; selec- tions from the herd made from time to time, fattened in places prepared for them, and aflerwards sold or consumed, with no ditl'erence of circumstance than what attached, as before stated, to animals kept for profit and food. As to some being wild, and some tame, as it is said, individual a; nals, no doubt, ditfered, as individuals in almost every race of animals are found, under any ( 'rcumslances to dill'er, in the degree of lameness that belongs to them. Of deer kept in stalls, some would be found tame and gentle, and otlieis quite irreclaimable, in the sense of temper and quietness. Upon a question whether deer are tamed and reclaimed, each case must depend upon the particular facts of it; and in this case, the court think that the facts were such as were proper to be submitted lo the jury; and, as it was a question of f.K-l for the jury, the court can not perceive any sufficient grounds lo warrant it in saying that the jury have come lo a wrong conclusioa upon the evidence, and donot feel authorized to disturb the ve.dict. The decision therein referred to with approval was made by lord Chief .Justice Willes in the case oi Davie-s vs. Poivell, a report of which is printed on page ii'6. The point in controversy is slated on page 127 : And the single question that was submitted to the judgment of the court is whether these deer under these circumstances, as they are set forth in the pleadings, were distrainable or not. It was insisted for the plaintilf that they were not ; (1) Hecause they were ferse naturae, and no one can have absolute property in them. (2) Because they are not chattels, but are to be considered as heredita- ments and incident to the park. (•\] Because, if not hereditaments, they were at least part of the thing demised. (4) Their last argument was drawn ab inusitato, because there is no instance in which deer have been adjudged to be distrainable. 'J! i \ ■M tfi'tliknr.tt OF MR. CARTER. 205 Then the learned judge goes on to say First. To support. Ilie first olijoction, ■'ind which was principally rplit^tl on by Iho counsel lor tlic pliiinlill", (hey cilod Finch lift; llro. Ahr., til. " Pro- perty, " pi 20; Keilway, ;I0 h, Co. Lit* 47 a ; I Mol. Ahr. BOfi; and several other old hooks, wherein it is laid down as a rule Ihal deer are not -^ f OIIAL AUnUMKNT ; r turn to a purlicular place t., such au oxlcnt that the V^^^^^^^^^^l [' thai l.h.c. has a powor au.l cutrol over Ihoni whul. .M,ahh>s h m : to doll wilh lIuMna. if Ihoy won, domestic animals, .hey are .n llu, ^ law liUo-.Ml lo dornostic animals and are made properly jusl as much as ir Ihev were domestic animals; and thai properly conti- nues m.l only while .hey are in the actual custody of the owner of that .articular place, hul when they are away trom ^]^Y'f ^ a Hi no matter how far away, so long as they have an •" ont.o ot returning lo it. The properly in them ceases only when Ih.s .nlen- lio ceases- and the cessation of thai intention is lo !>.' mlerred, and can onirbe Inferred, from .he cessation of the habil of relurn.ng \Vh(>u .hey have aban.loned .iiat habit and have returned lo then ancient wildeness, they cease lo he properly and may he laUeii by any person without an invasion of property nght . may stale an- ollVr proposition fully substauliated by these an honUes. Is scarcely anolher proposiiion indeed. 11 .« almost the same; but Te la ™o somewi.at diiVerent, and I may be justiiied Ihere.ore n sUUing^ in a dillerent iorm ; That wherever man .s capable of establishing a husbandry in respect to an anima commonly des- r igmited as "wild ", such' a husbandry as is estabhshed m refer- ^ oLe .0 domestic animals, so that he can lake the increase of he animal and devote it lo the public beneht by furnishmg .1 lo lit 2i;r.soflheworld,insuchVuiseslheanimal,althoughcomm designated as wild, is the subject of properly and remains he pro- perl? of that person as long as the an.ma .s in the habit of vo , - tarily subjecting himself lo the custody and control of that ^''' Those arc doctrines of the municipal law everywhere agreed to There is no dissent that I am aware of in reierence to i ; and behiK the universal doctrines of municipal law they may be taken, 1 apprehend, in the absence of evidence to the coatrary, as being the doctrine of international law. Sir Charles Russell. You must not assume that I ag.ee to that. You say it is universally admitted. . Mr. Carter. I do not assume thai you agree to anything. ^'^'s?r Charles Russell. I should not have interposed but my learned friend said it was universally admilled. Mr. Carter. I must understand a permanent exception then to that; but I cannot be very well deprived of the use o the woid '. aeneral" or" universal", because it may beheld not to include my learned friend. Let it be understood that I do not mean to include him. So far as my knowledge extends these doctrines are universally acceded to. , „ . The President. Mr. Carter, what would be your legal defini- ii| ■■ •sspssor of lablcs him iiio in the rty just as iM'ty conti- c owner of IS custody, iitention of ilhisinlon- I'orretl, and rol\u-ning. led to their le (aiven by ly stiile un- ities. It IS ( same; but ;d tlierel'ore 1 is capable imonlydes- ed in refer- ■ease of the n^ it to Ihc 1 commonly lins the pro- )it of volun- rol of that here agreed e to it; and ay be taken, ry, as being t 1 agree to anything. ised but my cepli(m then e of the word lotto include not mean to doctrines are legal defini- T* OF Mil. GARTER. 207 tion of tlie word " liusbandry " as you just used it. Would it bo merely the fact of gathering the increase of an animal? Mr. Carter. Yes. ^ I The President. That is enough lo constitute husbandry in ■} your view Mr. Carter. Taking an animal, caring for it, preserving the stock, and taking tiie increase for the markets of tiie community — that is husbandry I suppose; the same sort of liusbandry that is exercised in respect to sheep, horses, cattle, or any other of our do- mestic animals. The President. I better understand your meaning by your definition, than by your simile or your comparison. Mr. Carter. Well, it seems lo me that the definition is good, and it seems to me that the analogies of the animals to which I alkuh' are approj)riale. There are certain observations which I shall venture to make respecting the law so far as I conceive myself to have established it, so far as 1 have stated it. 1 mean, in the first place, that it is uniform in all countries and that it may therefore be taken to be international. Second, that it is not founded upon legislatiim, but upon the principles of the law of nature declared by the deci- sions of judicial tribunals as founded upon the law of nature; that that doctrine is made to turn upon the existence of an tnihm/s revrrtemli; but that animus revcrlendi must bo of itself wholly unimportant. It is indeed a mere fiction anyway. What do we know about the animus of one these wild animals'? All we know of the intention of the wild animal is that exhibited by his habits; and indeed the law says that the intention is to be inferred only from his habits. As long as the habit of rcturninr} exists, the intention exists, and when the habit of returning ceases then the intention to return is held to cease. Of what consequence, in itself considered, is this habit of returning, unless it has some social uses and purposes? Why should it be said that a wild animal is the subject of property if he has the habit of returning to the same place, and is not the subject of property if he has not that habit, and ceases to be the subject of property when once he has lost that habit? Why should we say that? There must be some reason for that. Can it be any thing else than this that the existence of the habit enables man to treat the animal in the same way as he treats domestic animals and make the animal subserve the same useful public and social purposes which domestic animals sub- serve? Plainly that must be the reason for it. Take the case of wild swans and geese. They are generally held not to be the subject of property. The law, however takes notice of the exception where those animals have been so far re- : ■I ' 208 OHAL AHGIIMKNT claimed that tlioy will roiilinniilly mul Imhitiinlly rosort to a partl- culiir pluco. There the hiw says they are property; ami so long as thoy have Ihat iiile-\lion iiohody ciin lay hiiiuls on them, wherever they are. whether in that |)arti(rular place or not. Why does the law say thai? hecause Ihere is a piihlic utility which may he suh- served hy Ihat. 11" yon allow the possessor ol" the place to which they resort to have the right ol" property in them he will devote himself to the hnsiness of reclaiming those animals; and conse- qnenlly society will he snpplied with those animals, whereas other- wise if will not. Property is the price which society must pay for the benelit which is thus gained from those animals. They are the product of the art, and the industry, and the labor which is expended upon them; and heing that product, the benelit of it is properly awarded to the |>erson who exhibits thai art and industry. The President. Do you mean to say Ihat the seals reverted to the Pribilof Islands on account of the indushy carried on there? Mr. Carter. Ves. The President. Perhaps you will come to that later in your argument. Mr. Carter. I hope my argument will not be anticipated. I shall not fail to complete the analogy. I am now looking to these other instances. Take deer. Why is it thai as long as deer are kept for the purposes of sport the law will not regard them as pro- perty? Because as long as they are kept for such purposes they subserve no useful social purpose; but the moment a man under- takes to reclaim deer, to take care of them, to feed them, to treat them as he does domestic animals and to supply the markets of society with venison from them, he is awarded the righlc uf property in them. That is because he is doing a useful public service; because it is a public service that would not be performed unless it was paid for, and because it can be paid for only by the award of the right of property to the one who thus expends his labor. Take the case of bees. Nothing can be more wild in its nature than a bee. That nature is not in the slightest degree changed when a hive is put inside of a box on the premises of a private individual; and that is all it is necessary to do. But what is the consequence of that? The consequence of that is that a supply of honey may be taken from that animal, and a much greater supply of houcy than if you were driven to hunt through the woods to Hnd hives. The consequence is that when that hive swarms, the swarm can be taken and put in another box and thus the number of swarms be multiplied indefinitely and the product of honey inde- finitely increased. That is a great service to society. It furuishes it with an article of great utility which otherwise it would not ►i ; to a pnrtl- 1 so long as 1, wliorevor ly doas llie nay l)o suli- [•e to which will tlovotc and conse- ort»as other- nust pay lor Tliey are or which is -nolil of it is nd industry. ; reverted to on there? atcr in your ticipated. I cing to these y; as deer are them as pro- arposes they L man under- lem, to treat e markets of he rights of useful public 36 performed • only by the expends his [ in its nature gree changed of a private lit what is the ,t a supply of ;reater supply woods to lind swarms, the is the number of honey inde- It furnishes it would not ^mmmm OF MH. CAHTEH. 809 have, or would not have in anylliing like the same degree of abun- dance; and therefore the art and industry, simple though it he, which is expended upon thosi! particular bees, is rewarded by assigning to llu^ possessor of (he ph.ce where the hives area right of property in the bees. When a hive swarms he can pursue it away from his own premises upon the premises of anolli<>r num. It remains his property; and, as appears from the decision which 1 read to the learned Arbitrators, if they go on to the premises of another person who will not permit the owner of the swarm to go there and take them, they still reuuiin his property; and if they are appropriated by the owner of the land where they take refuge, he is guilty of a trespass. All of those privileges are awarded to the owner of bees as a reward and encouragement to him for protecting the bees. It is an appeal to the great motive of self-interest so powerful in human nature, and which is the foundation of a great part of all the bles- sings of society. It is calling into activity a care, industry, labor, and diligence which otherwise would not be exercised. I might add instances of other animals; but the learned Arbi- trators will perceive what the rule is which has been established, the different animals to which it is applied, and the obvious grounds upon which the doctrine is based. Now let me see whether those doctrines apply to the case of the fur-seal or not. It is only necessary to allude to a few of the characteristics of the seal. In the first place he comes u|)on the Pribilof Islands voluntarily, and there submits himself absolutely to the control, custody, and disposition of the owner of that place. He is defenceless against man. Still he voluntarily comes there and submits himself to the power of man. In the next place, after migrating from that place he returns to it in obedience to the most imperious of all animal instincts- Nothing can stop him unless he is driven away. Although his absence from that spot is very prolonged and the distances over which he travels very great, that instinct to return is never for a moment absent. It is superior — very far superior — to any instinct that a deer may have to go to a particular place, or the wild awans, or geese, or pigeons, or animals of that sort. Seals will go through all obstacles and all dangers and certainly return to that spot. What is the social utility which this habit offers? Man is enabled by means of it to practice a species of husbandry. He can take the annual increase of that animal without in any respect diminishing its stock. In other words, he can deal with the animal precisely as he does with domestic animals and precisely as if the animal were domes- tic. Therefore we find here all the elements, all the foundations, upon which as Blackstone calls it, property per indnstriam stands. 14 I : 1 -;1^S^^ 210 OUAI. Alir.l MEM You may iiHk what (Miro, wliut iiuluslry man praclicos in rofcronco to the seal. Ilu docs not lake liim and l(>a<-h him to return; lio docs not laliorioiisly wont liiin to (liis parlicuiar spol ; the animal is inrlinod to fjo llicre anyway. No; lie docs not, Jiul you will porcoivo upon a very little rcllcction the degree of care and indus- try whieh is cxcM-eiscd. In the iirst place the I'nitcd Stales, or Uussia licl'orc I he I iiitcd States, carried thither to lli<>se islands several hundred people, and they constilulcd a ^iiai'd over those islands and preserved tlii^ seals and protect(>d Ihein against all other dangers except that of heing slaughtered in IIk; manner which I have descrihed — a very great lahor and a great deal of expense. The seals are freely invited to come to those islands. No ohslacle is thrown in their way. Their annual return is cher- ished in every way in which it can he cherished. Very great ex|»ens(^ is undergone in extending this sort of proteclion o'- •• them. In Ihe next place, and what is particularly import!*' .iie United Slates, and Russia before the United States j. ..sliced a self-denial, an abstinence, in reference* to that animal. They did not club him the momonl he landed and apply him to their pur- poses indiscriminately, male and female. They did not lake one in this way. They carefully avoided it. They practiced a self-denial. And that self-denial and the care and industry in other respects which I have mentioned leads those seals to come to those islands year after year, where they thus submit themselves to human power so as to enable the whole benefit of the animal to be applied to the uses of man. Let me ask what would have been the case if this care and industry had not have been a|)plied? Suppose the art and industry of tlie United Slates and its self-denial had not been exerted, what would have been the result? We have only to look to the fate of the seal in other quarters of the globe where no such care was exerted, to learn what would have been the result. They would have been exterminated .i hundred years ago. That herd would not exist there now, and could not exist. Every marauder who thought he could make a profitable voyage by descending upon the islands in the hope of getting seals would have gone there and killed indiscriminately all that In could find. The herd would have been exterminated just as such lior-ls have been exterminated in every other quarter of the globe where this care has not been exercised. Therefore, I respectfully submit to you that the present exis- tence of that herd on those islands — the life of every one of those seals, be they a thousand or be they five millions — is the direct product of the care, industry, labor and expense of the United Stales; and they would not be there except for that care and industry. L rpf(M'onco 'lui'ii ; lio (> uiiimul you will 11(1 iiuliis- Stiilos, or islunils vcr those jjainsl all • inunner il (leul of islands. 1) is clicr- ory Kioat •lion «i'- " irl»' .liC ..oUced a Tliey did Ihcir |)ur- [ike one in ell-denial, eels which lands year 1 power so lied to the jase il" this )se the art il not been mly to look 're no such ult. They That herd ' marauder descending gone there herd would [terminated IS not been resent exis- jne of those s the direct tbe United it care and UF MH. CAIITKH. Ill What is contended for upon the part ol' (ireat liritain here \n tlie right to prey upon a herd of animals which are in every sense the creation of tin; labor and industry of the United Stales and which would not exist — would not exist for the world, would not exist, even for those who thus prey u[)on them, cxceitt for the exercise of that care and industiy. There is no contradicting that position at all. It is not susce|)libl(^ of denial, or of doubt. It is absolutely certain that Ibis herd would not exist a day on the Pribilof Islands, nor would il have existed on any day within the last half century, but for the exercise of the care, labor, industry, and selfdenial by Russia, and her su-^cessor, the United Stales. If the exercise of those qualities in the ease of the wild swan, of deer, of bees, and of the other animals to which 1 have alluded are sufficient f^rounds and reasons why an award of property should be made to those who exhibit the care and industry which cherish and preserve Ihem, why should it not be made in this case? Therefore 1 say that upon the plain doc- trine of the municipal law, the position of the United Slates, that these seals are the subject of properly, and that they belong to the United States, not only while they are on the islands but at all times during their migrations, near or remote, is fully established. 1 might properly leave the argument here. The propositions in respect to property which 1 have shown to he true in reference to other animals, wild in their nature hut reclaimed by man, are true in respect to seals. There are indeed dillerences between seals and the other animals; hut the differences are v/holly immaterial to the question in dispute. They (D not affect it at all. The right of property is awarded in thos.e instances for social reasons and in consequence of great social benefits; and these social reasons and social benefits are as strong — I may say much stronger — in the case of the seals than they are in the case of any other animals to which allusion has been made as being subjects of property after they are reclaimed. It may be said that in the case of the other animals, like wild geese, and swans and deer, that the disposition to return has been created by man. Suppose it was created by man in those instances, and not created by man in the case of the seals. Would that make any difference? No. The public and social benefits which result from an award of property are the same in the one case as in the other. But it is not true, this suggestion that the instinct is created in the case of the other animals. The instinct to return is natural in all the cases alike. Man only acts upon it; p.nd he acts upon it in the one case just as he acts upon it in ■5 v/ 212 ORAL ARGUMENT another. If there Avas not a natui-al instinct to return in the case of wild g-cesc and swans, they could not bo made to return. It is their native qualities, their natural instincts, which are acted upon by the art and industry of man and which produce the useful result; and they are acted upon in the case of the seals just as niucii. Of course it is true that the wanderings of the seals from the place to which they thus resort are much wider and more protracted than in the case of the other animals; but has it ever been suggested in the case of the other animals that the (juestion whether an award of property could be made would depend upon the extent of their wanderings? Not at all. No matter how widely they may stray, no matter how long they may be absent, so long as you can say that the animus rever- tendi remains, so long the property exists and will be pro- tected. In respect to seals, we may say, with a certainly and abso- luteness which cannot be declared with reference to other ani- mals, that the animus rcvertendi does always exist. It may be said — indeed, is said, as I observe, in the argument of my lenrned friends on the other side — that the seals do not return to the same particular sj)ot. It is said that a seal may go one year to the Island of St. George and in another year he may go to the Island of St. Paul. Of what consequence is that? Mr. Foster. That is not proved. It is a mere supposition. Mr. Carter. That may well enough be true, for aught we know. I shall not ^ake pains to undertake to show that it is not true; tor it is a circumstance of absolutely no impor- tance. The only important thing about it is that the animal should return to the human owner ; that he should return to the custody of the owner who has exhibited the care and dili- gence which enables him to put that return to advantage. All these islands are the property of one proprietor, and all the benefits which can possibly arise from the return of an ani- mal to a particular place, and a submission of himself to the power of man, can be reaped in the case of the seals. It is suggested that you are not certain that the seals that come this year are the same seals that were there last year, and it is suggested that there is an intermingling between the two herds on the two sides of the Pacific Ocean ; that seals which frequent the Commander Islands, belonging to Russia, are found mingled with the herds which go to the Pribilof Islands. That is all conjecture. There is not an item of evidence tending to show that any such comingling as that occurs in point of fact. It is against the teachings of natural history. It is against ■n in the case return. It is ell arc acted produce the the seals just 1 of the seals h wider and lis; but has it iials that the made would t at all. No )w long they inhmis rever- will be pro- ily and abso- to other ani- t. It may be ument of my seals do not t a seal may another year Dnsequence is B supposition, le, for aught to show that ely no impor- at the animal uld return to care and dili- Ivantage. All •, and all the rn of an ani- limself to the seals. the seals that icro last year, Lg between the lat seals which ssia, are found Islands. That idence tending rs in point of . It is against OF MR. CARTER. 213 everything which we know in reference to the habits of this par- ticular herd. All parties were agreed, until it became of some importance to suggest some failure of identilication, that this particular herd tliat visits the Pribilof Islands confines itself to the western coast of America. It goes nowhere else. These are its sole places of resort tor the purposes of breeding; and it is proved with a certainly which any court of justice wouhl act upon anywhere that any seal found upon the western coast of America belongs to that particular herd and makes tiiose islands his home. ^ ,, n , The President. Mr. Carter, would you call the Pnbilof Is- lands the home of those seals. You have explained the animiun revertendi in such a way as to lead us to suppose that the animal which reverts to its usual haunts, reverts in some meas- ure to its home. Would you say the same for the seals? Mr. Carter. I call the Pi-ibilof Islands their home. I am not particular about the name which is applied to it. You may call it their place of resort, their breeding ground, or what not. Whatever you choose to call it, the fact is clear that they go there for the purposes of breeding; they stay there five months in the year; they bring forth their young there; and you ci-n go there and easily separate the superfluous males from the rest of the herd, for the purpose of affording them to the commerce of the world. The name is of course unimportant. It is the facts which determine the question. I have said that these doctrines are clear upon the settled rules of municipal law; and without going Into reasons which we do not find plainly apparent upon the doctrines of muni- cipal law. . I .1 But 1 am not disposed to leave the question there ; because Uie argument can be strengthened. 1 have said nothing ahout the principles and rules upon which the institution itself of property stands. The institution of property is anterior to municipal law, or anterior, at least, to any consideaible degree of development in municipal law. it is assumed to exist by municipal law; and it is only in these comparatively rare instances, exceptional instances, such as sw"ins a.id bees, pigeons and deer, tlu;.i the question of the foundation of the institution of property iias b.'eii in- quired into by those who administer the municipal law. There are those instances; but what if we should enquire into the foundations of property generally, and see what the reasons are which support it? Why is it that the institution ot pro- perty exists at all? Why is it that one man is permitted to own one hundred thousand acres, if you please, of the earth s surface, and another man have not where to lay his head? M - i 1 '.i' I 1^: r c^ s^ 214 ORAL ARGUMENT ^^ Why is it that society permits one man to hold, and defends Isim' in !i'4ding, store-houses, magazines of provisions, and anotlier is starving for hunger? Those things cannot he arbi- trary. Si.'ch institutions cannot he the result of chance, cannot rest upon any arbitrary reasons. They must stand upon great social grounds; and therefore il is very pertineni to inquire what llioso social grounds arc. I therefore invite this Trihanal to accompany me in a some- what larger inquiry, very pertinent to the matter which is now before them, — an inquiry as broad as the social interest of all nations, which this Tribunal is supposed to represent. The President. You want to take us into a discussion of social- ist theories or principles'? Mr. Carter, I do not object to discussing socialist theories, provided 1 reduce them into some brief compass. The President's question reminds me of an observation of one of his countrymen, called illustrious by his friends, and, 1 suppose, denounced as notorious by his enemies. It was the Frenchman Prudhon, who said that property is robbery; and he was right. Property is robbery, unless you can defend it on some great social grounds, and support it upon the b.^sis of great social benefits. If you can sbow that it isnecessaiy to society, necessary to order, necessary to civilization, and necessary to progress, then you can defend it. Otherwise, it is robbery. What is properly? It is sometimes said lobe the right to the exclusive enjoyment oi' a thing ; but that rather indicates the jural right which belongs to it and is attached to it, and not the thing itself. What is it? I think il is well expressed by one or two writers to whom 1 will call attention. It is very hard to define what properly is. We can feel it; it is hard to define il. Savigny says (page 51 of our Argument) : " Property according to its true nature, is a widening of individual power". It is, as far as tangible things are concerned, an extension of the individual to some part of the material world, sc that it is affected by his personality". » ' And the philosopher Locke expresses the same idea. He says : Tlie fruit or venison wliicii nourishes the wild Indian must be his, and so his, i. c, (( part of liim, tliat another can no longer have any right to it, etc. (Civil Government, Ch. V, S 25). ^- :- - A German writer of great distinction, Ihering, gives substan- tially the same definition of it : In making llie object my own I stamped it witii theniark v;f my own person; whoever attacks it attacks me; the blow struck it strikes me, for 1 am present in it. Property is but tlie periphery of my person extended to things. (Ihe- ring, quoted by George R. Newcomb, Pol. Science Quarterly, vol. 1, p. 004.) I* \ iMii&L. OF MR. GARTER. mi [ defends »ns, and he arbi- ;, cannot on great ) inquire a some- h is now est of all of social- theories, L of one of suppose, ■enchman ,vas right, •eat social ncfits. If to order, 1 you can r^lit to the s the jural the thing ne or two to define ;cordingto s, as far as lividual to ed by his He says : , be his, and ;ht toil, etc. s substan- own person; 1 ail present lings. (Ihe- 1, p. 004.) That is a very happy definition of what property really is. It is a part of the person, and whoever touches the property ol a per- son touches him. Whoever touches the property of a nation touches the nation itself. , . ■ xi m That is a description of the thing itself. Now, what is the right on wliich it is founded ? In going into this inquiry as to what the right of properly is founded upon, 1 am not going to deal with any abstract question; nor am 1 going to deal with questions that have not been considered as the province of jurists. On the contrary, am enteringon a question which has been, from the first, considered peculiarly the province of jurists, and especially of jurists dealmg with the'law of nature and the law of nations. The great writ- ers upon that Jaw, beginning with Grotius, have considered that no ethical system could be complete, and, consequently, tiiat no system of the law of nature and nations could be complete, which did not deal with the institution of property and the toundations upon which il rested. And in what 1 am going to say, shall do little more than recall views which have been belore stated and developed by very many different writers. Possibly I ^^Y ^''^'J them alitllefurther in the development; but forthe most part I shall only repeat what has been said before. These writers, in endeavoring to ascertain the foundations o instit.ition of property, take first into consideration its universal prevalence everywhere all over the globe; and in every stage of human historv, and then recognize in this the truth that it is and must he founded upon the facts of man's nature, and the circums- tances, the environment, in which he is placed. They tell us that man is by nature a social animal, and must live in suciety, and that society is not possible unless we can have order and peace. VV her- ever there is anything desirable to men, wherever there is an obiect of human desire, of which the supply is limited — where there is not enough for all -there will necessarily be struggle and contention for the possession of it ; and if there were nothirg to prevent it, those who had the most power would engross the most valuable things of the world. There would be constant wartare for the possession of desirable things where there was not euougli for all, unless there were some rule and some means by which tliat warfare should be prevented. Therefore, properly atouce becomes a necessity, in order that there may exist peace and order m human society. . » -ic We may say, therefore, that the foundation ol properly, us first and original foundation, was in necessity, the necessity o peace and order ; and that necessity requir-s that property be carried to this extent: that every object of desire, the supply of which is limited, must be owned by somebody. When you have that stale -&■ I I i f 216 ORAL AR(iUMENT •(■J t ' ^ of things, you have peace, and until that state of things is esta- blished, you cannot have peace. Therefore we lind llial every- where where men are formed into liuman societies, a determinate owner is assigned to every object of human desire, the supply of which is linv.ted. Those views are well expressed in the early part of Blackstone's Commentaries on the Law of England. He has a very elegant cha[)ter« to which 1 wouhl refer the particular attention of the members of the Tribunal. 1 shall read here only an extract from it, on page 54, of our Argument. He says : ■ ^ ^- ^ .■ Again, Ihero arc other Ihiiigs in which a pormnnent property may subsist, not only as to the temporary use, but also the solid substaiiee; and which yet would I'requenlly be found without a proprietor had not tlie wisiloin of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which we.e omitted to he appropriated in the general distri- bution of lands. Such ( -^/ft wrecks, eslrays, and that species of wild ani- mals which the arbitrary c ions of positive law have distinguished from Uto rest by tlie well knowif dlation of game. Willi regard to these and some others, as disturbances ... ; quarrels would frequently arise among in- dividuals, contending about the acijiiisilion of t'.iis species of property by lirst occupancy, the law has therefore wisely cut up the root of dissension by vest- ing the tilings themselves in the sovereign of the State, or else in his repre- sentatives appointed and authorized by him, being usually the lords of ma- nors. And thus the legislature of Kngland has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pur- suing Ihat whvand ordcrhj maxim ofamijnimj to evcryllung capable of otvnenhip a legal and ddcnninute oicncr. Sir Henry Mayne has also made an allusion to this doctrine, which is well worthy of consideration. He speaks of this rule of assigning a determinate owner to everything capable of ownership, not simply as an original feature in human society, but one which from the long habitudes of society comes to be regarded as essen- tial by every one. He says : It is only when the rights of property gained a sanction from long practical inviolability, and when the vast majority of objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprie- ■ torship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable v.ith that infrequency and uncertainty of proprie tary rights which distinguish the beginning of civilization, The true basis seems to be not an instinctive bias towards the institution of property, but a presumption, arising out of the long continuance of that institution, that evcry- thinij ought lo have an owner. When possession is taken of a " res nidlius ", cnal is, of an object which is not, or has never been reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally subjects as an exclusive enjoyment, and that in the given case there is no one to" invest with the rights of property except the occup- ant. The occupant, in short, becomes the owner, because all things are pre- sumed to be somebody's property, and because no oae can be pointed out as ■wg ijS ^ j.'jiwr.)*. '• • , ;j i «jlJBfa»'^Wlly disap- le custody ir nations; benclit of )m Nature ut ? How leficial in- .11 the pro- ty of com- eans of the earth, and [lis beneli- y designed ots except- Dpcrty and r instance, iind — for vicinity of OF MH. CAHTEH. the islands where they have their homo. Hut how were llsry used before commerce existed? They were turned to accoant only by the few hundreds or thousandsof Indians who lived along Ihatcoast, and no other people were henelited, or could be henelited by them, for there were no means of getting them. But when commerce is introduced, the sealskins, through the iristrumiMitality of commerce, make their way all over tke world, and eventually come into thepos- session of tl'.e very persons who want them, wherever those persons dwell. In that way the general benelit of all mankind is fully and elfeclively worked out, although the custody and possession of the thing is given to some particular nation, or to some particular men. And how perfectly this operates will bo seen when we consider that the seals, even to the people capable of gathering them and taking their skins — 1 mean the tribes of Indians — were of no utility except for supplying their immediate wants; and a few hundreds or a few thousands were suflicient for this purpose. The rest were not utilized, because there were no means by which the benefits to be derived from these animals could be carried to the other parts of the world the inhabitants of which might enjoy them. But when commerce was instituted, then the inhabitant of Europe who wished to possess a sealskin could furnish some of his own pro- ducts to those who gathered the seals and thereby obtain some of the skins. In other words, the giving of these seals to commerce, or the product of them to commerce, is tantamount to putting them up at an auction, and the man who lives in Kuropc can thus have them on the same terms as the man in the United States. And therefore there is a supply to all mankind, that is, to all who want them. And this truth will be further illustrated when we inquire who would be the losers if this commerce did not exist. For in- stance, if the seals were destroyed, who would lose ? You may say that the loss would fall upon those who gathered them; bul that would be a temporary loss, for the persons so engaged could direct their energies to other forms of industry. So also of the persons engaged in the manufacture of sealskins in Great Britain. A tem- porary loss might fall upon them; but there are plenty of other kinds of employment, and the loss would be only a temporary one. But when you come to the person who wants the sealskin for his own use, his loss is irreparable and cannot be supplied. Now I have said that the title, whether of natiors or of men, to particu- lar things is not absolute, but coupled with a trust for 'he benefit of mankind. So far as any man or any nation has m '-fa par- ticular thing than is necessary for his, or its, own purposes, there is an obligation to let others share in the enjoyment of it : the thing is held upon trust. And we shall see that the law of nature per- fectly recognizes that trust; for commerce is by the law of nature t - :if If'l' 114 OHAI. AHfiUMKM obligatory. N;* nalion has a ri^hl, wilhoiil sufficient cause, to withdraw itself from commercial communication with the rest of the world, and say to the other peoples that it will not afford to them « share; of its own hlrssinji;s and benelits. [ may read from the au- thorities collected in a note at [)a^e (11 of the (lasc of the Tnilcd Stales, And first a passage from a vvorU on llie " Highls and Du- ties of Neutral Nations in 'lime of War " by JVI. Ilauhdeuille (quo- ting) : Tlio Sovproif^n Mnslor of nntiiro did not confine himsplf to K'vinj,' n jmrti- cnlnr dispoHJIion to oviuy mini; he also divorsilied cliiniilos uiid llin naturi.' of soils. To eacfi country, to eacli region, he assigned dillerent fruits and s[ie- cial prodinrlions, all or nearly all of which wen? susceptihie of being used hy man and id' salislying his wants lt his pleasures. Almost all region ' liaubt- k'f s prodi; -ed what was indispensai-le for the sustenance of their inhahilaiits, hut not one jiroduced all the I'ruits lli.it were necessary lo meet all real needs, or more particularly all conventional needs. It was, therefore, necessary to have recourse to olher nations and to extend cmnmeice. Man, impelled hy that instinct which leads him to seek peifeclion, ciealed new needs for himself as ii<» mruie ne^«- •Jiscov)ries. He accustomed himself to the use of all the production', of the earth and of its industry. The cotton, su^ar, coffee, and tobacco of the New World have hec )me articles of ()rime necessity for the European, ami an immense trade is carried on in them. The American, in turn, can not dispense with the varit^d productions of European manufacture. The development of co.nmerce, that is to say, the satisfaction of man's instincts of sociability and perfectibility, has greatly (-ontribuled lo connecting all the nat'jns of the universe; it has served as a vehicle, so to s[)eak, tor the performance of the duties of humanity. Commerce is n^ally, therefore, an institution of primitive law; it has its source and its origin in the divine law itself. And Vattel on Ihe^same subject (p, 62) Lays : Skc. 2i . All men ought lo find on earth the things they stand in need of. In the primitive state of communion Ihey took them wherever tney happened to meet with them if anotlMM- hud not before appropriated them lo his own use. The introduction of donrnion and properly could not deprive men of so essential a right, and, consequently, it can not lake place witlioul leaving them, in general, some means of procuiing what is usefu' or necessary to them. This meiins commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner's consi-nl, nor are they usually to be had for nothing, but they may be bought or cNchanged for other things of equal value. Men are, therefore, nnder nn obliijittion to carry on that commerce with each other if they wish not to deviate from the viaivs of nature, and this obligation extends also to xchole natiom^ or ■ stalea. It is seldom that nature is seen in one place to produce everything necessary for the use of man; one country abounds in corn, anuli-.rr" in pas- tures ami cattle, a third in timber and metals, etc. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary, and tin; views of nature, our common mother, will be fulfilled, Further, one country is litter for some kind of pro- ducts than for another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainty of procuring what it wants, will employ its lands and its industry in the most advantageous OF Mh. CARTER. SS» it cuuse, to l\w rfist of Ford tollicm roni the au- f thft United his and Du- IVuille (quo- HiviiiH a jiarli- l llio lUltUlt! of Vtiils iind si)e- boiiil.' used by i't>pion' lioubt- ir inhiibitaiils, all real neods, >, necessary to 1, impelled liy eds for himself ' use of all the ar, coffee, and cessily for the e Ameritau, in I niaiiufaclure. man's instincts conuccling all speak, for the , therefore, an I the divine law and in need of. Iiiey happened hem to his own defirive men of without leaving sessary tolhem. wants. ThinRS lout the owner's may be bought •.reforc, under an ish not to deviate whole naliom or • iuce everything anul'.irr in pas- ! countries trade I will be without are, our common )ine kind of pro- in for tillage. If f procuring what )st advantageous manner, and mankind in general prove gainers hy it. Such are the founda- tions of Iht- general obligations nicumbenl on nations reciprocally to cultivate commerce. And I might groatly amphfy this. I will nuid a pussagoat the bottom oi'|>ago()2 from FtHiccon International (;omnu'rco((ni()ting): The need of this ex(^hange is based ujion I ho laws of nature and upon the wise arrangement which the Su()reme Ueing Ins eslablished in the world, each region and each portion of which liunishes, indeed, a great variety of produc- tions, hutalso lacks certain things re(|uireil lor the comfort or needs of man, this obliges man to exchange llieir commodities with each olln^r and to form bonds of friendship, whereas, otherwise, their passions would impel them to hal(( and destroy each other The law of connuerco is therefore based upon the obligation under which nations are to assist each oIIkm' mutually, and to contribute, as far as lies in their jtower, to the happiness of each other. And I.cvi, in his woik upon International Commercial Law : Commerce is a law of nature, and the right of trading is a natural right. Rut it is only an iniperfecl right, inasninch as each nation is the solejudgeof what is advantageous or disadvanta«eons to itself; and whether or not '• iie convenient for her to cultivate any branch of trade, or to open trading inter- course with any one country. Hence it is that no nation has a right to compel another nation to enter into trading intercourse with herself, or to pass laws for the benefit of trading and traders. Yet the refusal of this natural right, whether as against one nation only, or as against all nations, would constitute an offense against international law, and it was this refusal to trade, and liic exclusion of British traders from her cities and I owns, that led to the war with China. That war with China may Avell be referred to as illustrating the proposition, that no nation has an absolute property in any of the gifts of Providence, but that they are given in part upon a trust to share them with others. Let me suppose an article like india rubber, which has become a supreme necessity to the human race all over the world. It is produced in very few places. It is possible that the nation which has dominion over those places might seek to exclude it from the commerce of the world. It might go so far as to attempt to destroy the plantations which produce the tree from which the gum is extracted. Would such an attempt give any right to any other nation ? Most certainly it would ! It would give a right to other nations to interfere and take posses- sion, if necessary, of the regions in which that article so impor- tant, so necessary to mankind, was alone grown, in order that they might supply themselves; and the ground of such action would be that the nation which had possession of this product refused to perform its trust by sharing that blessing. The lf»resldent. Do you mean a legal right? Mr. Carter. I mean a perfect legal right. Let me carry that a little further, if there be any doubt about it. In international law 15 .,##«' 223 OHAL ARGUMENT (■ we have a whole chapter in regard to the instances ir, which one nation may justly interfere in the affairs of another ; and there are numerous instances in history in which such interferences have been had. Take one instance, which is generally spoken of as the means adopled to " preserve fhe halanco of power". When one nation in Europe sees another so extending itself as to threaten wiiul has been denominated the balance of power, this has from an early period in recent European history been deemed a cause of interference, and, if necessary, of war. Tiiat interference is defended upon moral grounds, and it is perfectly defensible; for what right has a nation to threaten the peace of the world? The President. It is one of the forms of self-defence. Mr. Cai'ter. Now, i>s I have said before, the benefits of nature were originally given to mankind, and all the members of the human family have a right to participate in them. The coffee of Central America and Arabia is not the exclusive property of those two nations; the tee of China, the rubber of South America, are not the exclusive property of those nations where it is grown ; they are the common property of mankind; and if the nations which have the custody of them withdraw them, they are failing in their trust, and other nations have a rigiii, to interfere and secure their share. Lord Hannen. May they sell them at their own price, although it may be a very high price ? Mr. Carter. Yes until they come to put a price upon these commodities which amounts to a refusal to sell them — when they arrogate to themselves, the exclusive benefits of blessings which were intended for all, then you can interfere. 1 do not dispute the right of a nation to say : " For certain reasonable purposes we must interdict commerce witii such and such a place. " There may bu grounds and reasons for that; there may be reasons why a nation should refuse for a time to carry on commerce at all; there may be exceptional circumstances wliicli would eMilic a nation to act in ll)is manner. But what I do assert is th it where a nation sayj : *' We will for ever exclude the world from participating in these benefits of which we have sole possession, " that nation com- mits a violation of natural law, and gives other nations a right to interpose and assert for themselves a claim to those blessings to which they are entitled under the lav/ of nature. And the practice of mankind has universally proceeded upon these principles, let me next assei I. Upon what other ground can we defend the seizures by the European I'owers of the tcvitories of the New World — the great continents of North and ? juth Ame- rica? England, France, Spain, nearly all the European maritime nations, engaged in the enterprise of taking possession of enor- I 1 3S in which one • ; and there are irferences have ipokcn of as the ' ". When one ■ as to threaten V, this has from cmod a cause of interference is ' defensible; for the world ? efcnce. cnefils of nature members of the I. The coffee of )roperty of those ath America, are it is grown; they le nations which •e failing in their and secure their n price, although price upon these em — when they blessings which lo not dispute the ible purposes we I place. " There be reasons why a erce at all ; there !7 iilie a nation to it where a nation n participating in ' that nation corn- nations a right to those blessings to •e. y proceeded upon Ihcr ground can we ■ the te'-vitories of 1 and ^' juth Anie- uropean maritime ossession of enor- OF MR. CARTER. 22- mous tracts of territory in the New World from the peoples which occupied them. They never asked pen.nission; thoy took them forcibly and against the will of the natives. They said to those uncivilized nations: " These countries are no': intended for your sole benefit, but for ours also, and we choose .'o treat them as such. " That policy has been pursued by civ;li/ed nations for centuries. Is it robbery, or is it defensible ? I assert that it is not robbery, because those barbarous and uncivilized peoples did not apply the comforts the) possessed to the purposes for which na- ture and nature's (lod intended them ; they were not faithful to the trust W'hich was imposed upon them; they were incajmble of dis- charging to mankind the duties which tiie possessors of such bles- sings ought to disciiarge. The nations of Europe say : " Those vast tracts of the most fertile parts of the earth, capable of afford- ing measureless comforts to mankind, and of su^staining a valuable commerce shall not be allowed to remain a waste and a desola- tion. It was not for such purposes that the earth was given toman, and it is the mission of civilized man to take out of the possession of barbarous man whatever can contribute to the benefit of the human race in general, but which is left unimproved. Senator Morgan here asked a questiim as to the Gonfeience at Berlin previously referred to by the President, and at which this point was considered. He was understood to ask whether the doctrine now upheld had been then settled as a principle of inter- national law. Mr. Carter. I cannot say; but I am certain that the practice of mankind from an early period of history has been based upon these principles; and unless these principles are well founded, the whole course of the settlement of the New World is indefensible robbe- ry. What did England do in the case of China in 1840, for in- stance? She made war upon China and subdued her. Why? Thg real cause of war is not always correctly staled in the pretext given for it, and in that instance the pretext was, I believe, some discour- tesy which had been shown to individuals, some maltreatment of British officials. But if we look into the history of the matter, we find that the dispute began when China closed her ports, and that it terminated with the treaty by which she hound herself to keep them open. This war was defensible; I ; »not put it as an oll'ence on the part of Great Britain. When •' tuition refuses to perform the duties incumbent upon her in re? e: I to the blessings confided to her care, there is a cause for the intervention of other nations. Take the case of Peruvian bark. This product is commonly regarded as absolutely necessary in the economy of society; it is a necessity for the cure of certain diseases; it is a specific for them; they will rage unrestrained unless you have Peruvian bark. Now, 1 .' ^r k .i:*,jMiM**'^aiK»fr«-*Wi 228 ORAL ARGUMENT suppose the countries where it is grown should say that for some suppose I ^^ commerce; and not only [hrbntlh Leyuro; seto devastate the plantations where the bar - is cu tt; ted^^is mankind going to permit that? I w.ll refer ^o to h" an '"^^ "^ '''"^ about every day m hrn V pane's. Why is Great Britain in Egypt mamtammg a control ovc? the destiny of that nation? What reason has she for 4e ting a dominion over these poor Egyptians? Is it becaus lieVare weak and defenceless? Is that the only reason/ No I they «'« ^^^'r ; , I the destinies of Great Britain m their ;Stan-a o"^ wav of a mighty commerce; it is necessary that that commerce lo^uld be™rfe and unrestrained - ihat great uvenue and highway o tJaflic must be made to yield the utmost bene it of which it capable If the Government of Egypt is not capable ot a.iking t vield it's utmost - if that Government is incapable of doing so, 'other natlo™ have a right to interfere and see that the trust is per- ^''' The President. 1 am afraid that you take a very high point of view MrC^-ter, because you seem to anticipate the judgments nf hislorv I cannot say more at present. . , , „ Mr carter. Not a higher view than is sustained by the prac- tice^rnfanS for three' hundred years. If that is a high point tice ot nrn'^'^n President; but it is a view which rJdXs l^'^oth a^rSy and practice. Will any one main- ain that where a broad tract of the earth's surface abounds in a blessin' suffi ient to afford comfort and convemence to a very b Se par niankind- will any one maintain that that nation r ?f VhP choose wholly withhold from other countries the be- 3; he stpal^^^ If that is true then all that ?he writ^ers upon the law of nature tell us to the effect that the gifts op'^^iSence were bestowed upon -^''^-^^-^ ^^J^^.^l' ^l Lt is erroneous! Are these «f ^^'^f ^f "%^: ' . ' "^"'^ '^ peal to some of them. I may refer to Vattcl. He say. . Sec 203. Hitherto we have cousidered the nation merely with resre^^^^^^^ ,^^%Ln^ any re^a.-d Jc^U^e^o^try wh,d. .t p^es^. ^L^ us .ow^see it established in a country NNh^^li , nliinP^ hv the Creator to he their The narth belongs to numk.nd 'YT;''Iu S hef all possoU a natural I also quote from Bowyer, a distinguished English writer, and from page 127 of his ''Commentaries on the Constitutional Law of England" : The institution of property, that is to say. the appropriation to part.cular '«A4M«4*mf^ ^^a«t^l««a^^*l3W^*^£*»«*** ■i OF MH. CAIITEH. 229 it for some J not only i where the [ will refer ,'ory day in intaining a has she for it because son? No I ain in their is the path- , commerce nd highway ' which it is »f niaking it )f doing so, trust is per- igh point of ! judgments by the prac- 1 high pomt I view which y one main- ibounds in a je to a very t that nation itries the be- then all that Feet that the general — all 1 must ap- with respect lo Let us low see intl habitation, lator to be their ossess a natural y for their sub- XVIII.) ;h writer, and tional Law of on to particular persons and us«s of things which wore given by (iod to all mankind is of natural law. And tiie great philosopher Locke says in his Treatise on Civil Government : God who hath given the world to men in common hath also given them reason fo make use of it Ir the best advantage of life and convenience. The earth and all tliat is therein is given to men for tiie support and comtort of tiieir being; and though all tlie fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the sponta- neous hand of nature; and nobody has originally a private dominion exclusive of the rest of mankind in any of llieiu, as they are thus in Ihfir natural state, yet being given for llie use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all benelicial to any particular nan. 1 read from Sergeant Stephen's Commentaries on the Laws of England, Vol. 1, Uook 2, pages 159-16;) : In the beginning of the world, as we are informed by Holy Writ, the All Bountiful Creator gave to man "dominion over all the earth; and over the fish of the sea, and over the fowls of the air, and over every living thing that movetli upon the eciith". Hence the earth and all things therein are the general properly ol ail- mankind, exclusive of other beings, from the immediate gift of the Creator. And while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among tiiem, and that every one took from the public stock, to his own use, such things as his immediate necessities required. From Vattel, 7tli American Edition, Book 2, section 21 : All men ought to find on earth the things they stand in need of. In the primitive state of communion, they took "lem wherever they happened to meet with them, if another had not bofor. npropriated them to his own use. The introduction of dominion and jn-opeily .-ouM not d.>|'rive men of so essential a right; and, consequently, it cannot take place without leaving them, in general, some means of procuring what is useful or necessary to them. This means commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining I'.iem without Ihe owner's consent, nor are they usually to be had for nothing; but they may be bought, or cvchanged for other things of equal value. Men are, therefore, under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature; and this obligation extends also to whole natiom or states. It is seldom that nature is seen in one place to pro- duce everything necessary for the use of man; one country abounds in corn, another in pastures an'^ cattle, a third in timber and metals, &c. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fullilled. Further, one country is Utter for some kind of products than for another, as, for instance, titter for the vine than for tillage. If trade and barter take place, every nation, on the certainty of p.ocuiing what it wants, will employ ils lands and its industry in the most advantageous manner, and mankind in general prove gainers by it. - . ■ a g AJ i iiaMig '^sr i I- * 230 ORAL AHGUMENT Such arc llin foundations of the general obligations incumbent on nation reciprocally to cultivate commerce. Inlornalional law is fillod with statements of the general doc- trine that the earth was ^ivon to all mankind for their common benefit and that it must he so appropriated as to enable them to enjoY Uk '" common benefit; that commerce is the means by which that common benelit can be extended to all nations, and Uierclore the carrying on of commerce is an obligation resting upon all nations. . . . When we speak of an obligation resting upon nations, as it is spoken of by almost every writer who has dealt with the qnestion, we are not 'dealing in niere empty words. These things are not mentioned by them as meaning nothing. They mean what they say. They mean that this is an obligation, and that it is an obli- gation which in a suitable case can be enforced. So much for the first limitation which I have stated property was subject to, whether held by nations or by individuals. It is held subject to a trust for the benefit of the world. As to so much of it as is not needed for the purposes oi' the particular owner, be that owner nation or man, the benefit of it must be extended on iust terms to whose for whose beneht it was designed. 1 now have to state a second limitation upon property whether held by nations or by men, and that is, that things themselves are not given, but only the use of them. That is all — the use ot them. The world is given to be used, and only to be used, not to bo destroyed. Men bring into the world their children, those who are to follow them. Ttiey are under an obligation to leave the means of support to them. Is it necessary for me to argue that no man has so absolute a property in anything that he can be per- mitted to destroy it ? Surclyjthat is not necessary. The President. Uli et abud, say the Romans. Mr Carter. Yes, there are two things, uli el ahuti, so that a man may not only use, but abuse. It is given to us to use ; it is not -ivcn to us to abuse and destroy. We have no right to do that. Property is sometimes said, in municipal law, to be regarded as absolute. If a man chooses to throw away a bushel of wheat, there is nobody to call him to account. The state does not call him to account. It does not do that, because the probability tliat such a thing will be done is extremely remote. We can sately rely upon the selhsh element in human nature to prevent any such thing as that being done. Hut suppose it was a common thing, and likely to occur, would the laws be silent about it then? By no means. I think I have some citations upon that very point. 1 will read from a writer o'' admitted authority, and that is Ahrcns. I read from page 97 of my argument : 11-^ It \s4»\*4 \>',^:'-T;->-^'?=nv' ■ :' :■ fy-"^ 'f' ■^' -'■ -'"■^" from New hough some up that list t is the best y, in part of t less signi- list. 1 have this. 1 will r of personal I : lankind belong icquire, and to exercise dominion over these lliiiif^s " to subdue " the enrth, ns it is sftid — is universally felt to be a natural right; while the corresiiontliutj desire of ac(|uisition is one of the strongest in the human heart; — that which proiujits the unlettered and uiidisci|ilined savage to jdundcr and kill for the sake of f?reedy s|).,ils, bul among a well ordered and rellniid people may be found the mainspring of civilization. Nor is tlie gift of externa things to the human race absolute and wiliiout limitation, for it is couct ded to be something designed for iiencflcial use and not for wanton injury; to fie enjoyed and not to be abused. The inferior animals uuiy minister to our wants; else they should not be killed and maimed by us for mere pastime, or when the duty of self-protection can alTord no reasonable excuse. The soil should be cultivated and improved as far us possible — not ravaged, laid waste, and left desolate, save where some terrible lesson of good to mankind may furnish a sul'licienl means of justilication. Nature teaches the lesson doubly enforced by revelation, that the right of the human race to own and exercise dominion over the things of this earth in successive generations carries with it a corresponding moral obligation to use, enjoy, and transmit in due course for the benefit of the whole human race, not for ourselves only or for those who preceded us, but for all who are yet to come besides, that the grand purpose of the Creator and Giver may be fully accomplished. And from Caulfield Ilerron, an English writer, Introduction to the History of Jurisprudence, Bkl. ch. IV, p. 71 : Properly is the right of using. The right of property is founded upon its subserviency to the subsistence and well-being of mankind. The insti- tution of property is necessary for social order. The exclusive appropriation of things is essential for the full enjoyment of them... It is the principal foundation of social improvement; it leads to the cultivation of the earth, the institution of government, the establishment of justice. In the right of property Bentham includes four things : 1. The right of occupation; 2. The right of excluding others; .1. The right of disposition; 4. The right of transmission. The Arbitrators will perceive that these authorities fully sup- port what I have been endeavoring to day down. I now read from De Rayneval, a French writer on the Law of Nature and Nations, section 2, page 96 : Property did not exist in the primitive slate of the world, and it is no more inherent in human nature than heredity. Originally men did not possess more than the animals possess to-day. The earth was common to all and belonged to no one. When agriculture became necessary for the sustenance of man, each was partial naturally to the earth which he had cleared by the sweat of his brow, and which offered him the fruit and the recompense of his labor; whence the first idea of preservation and properly; ■whence also, the quarrels which the exclusive right must have caused upon the ground that it was invoked for the first time. These quarrels must have finally led to compromises; these compromises introduced the right to enjoy exclusively the earth which each had cleared and cultivated, and this is the most reasonable origin of property. It has then been introduced for the maintenance of peace among men. It has then been the principle of their union and social order. n 1-! 238 ORAL AIIGUMENT From John Ponfor.l Thomas, uii Hnglisli writer, in his Trea- tise on Universal .huisprntlenco, ch. 11, p. 25 : All tl.inKH bfilo.ipMl oriMii.ally to niunkind in common. Tl.o beniKiJ Giver of all «ills .li.l lu.l. .i,.,t. ihut. th.'m to son.c to the oxclusion o ho re I „ tl.o si.Pcies. In the stale of a .onMnunily of things Hh' H. sI bo.hly occu- pancy and use of .0 much only as hu.nan wants from lime to Inn.. nMin.red 8„pn IP.l the i.lace of properly, (n the primilivn stale every man ha.l a mhl „o( to be hin.lere.1 from usinK whatever lan.l or produce he had appropriated to himself and In- imnnidialely wanted for rational use, and the bestowmenl of bodily labour on a thiuK was the only mode of ucqunin« a positive ti le o it. Agri.'ulture could not llourish. nor its fruits be improve.l or >M'«";""; « maturity. Ingenuity was not sufliciently rewarded, disputes cont nually alw; tL. ingenuity an.l industry of man were checked. l«re-occ«,ml.on by slow degrees communicated with lh6 consent of man either express or implied a right of appropriation; and the mtroduction ot '"""'^y ''''•^^J,'';'^"! J extended it? The increased wants, improved ayncullurc. and valuable elegancies of incipient civilization gave birth to the distinctions ot property. [The Tribunal thereupon adjourned until Thursday, April 20, 1893, at 11.30 o'clock a.m]. in his Troa- Tlip benJKU on of lh« rest I. bodily ociui- liiiic riMiiiirod [111 had a nn\il A (ippntpriatfid ic ix'stowmt'iil josilivo lillfi to [)!• ripiintMl into es coiitiiuiiiily -oc(Mi,)ation by ler express or ley has ({really and valuable lis of property. ay, April 20, TWELFTH DAY. APRIL 20^", 1893 [The Tribunal convened pursuiinl lo adjournment.] The President. Mr. darter, v\;ll you proceed? Mr. Carter. Mr. President, my arf,nimeut yesterday had a two- fohl character. It was designed, in tlu' lirst place, to sliow that by the doctrines of municipal hiw everywhere accepted, the fur seals were the property of the United States. In the next place, my purpose was, if there wore any doubts concerning that conclusion arising out of difl'erences between the nature and habits of the seals and those of other animals in respect lo which the question of property had been decided by the municipal law, lo more parti- cularly explain that the proper way to remove them was to look to the foundation upon which the institution of property itself stood, and that if we should lind that there were the same reasons for awarding to the United States property in the fur-seals as there were for awarding property in anything, the conclusion would become, as it seemed to me, irresistible. With that view I engaged in an inquiry into the general foundations of the law of property with the view of showing that property was not founded upon rob- bery or force, or based upon any arbitrary distinctions, but that it was established for great social purposes and to satisfy great social necessities; that the earth was originally the common property of the race, and that the division of the face of the earth into distinct possessions alloted to different nations, did not displace the right of mankind in general to an enjoyment of all the benefits of the earth ; , that the establishment of the institution of property so far from displacing this right, was really the principal means and the effect- ivc means, by which that right was worked out and made practi- cably available; that consequently the right of property whether in nations or in individuals was subject to two limitations, the first was that it was not held by an absolute title; that so far as any nation had more of a thing than its necessities required it held the super- abundance subject to a trust for the benefit of mankind. Second, that the use only of things is given, not the stock, or principal thing; that that was to be preserved for the benefit of future generations. I next endeavored to show that these deductions from the law of ■'•^^SM^' ""^•- 240 ORAL ARGUMENT nature were confirmed by the actual practice and usage of mankind; that, although under municipal law as between individuals one could not call another to account for an abuse of the right of pro- perty or for an attempt to destroy it, and there were not generally, laws for the correction of abuses of the law of property by indivi- duals, the motive of self-interest being sufficient for the purposes of protec'^on, yet there were, or might be, exceptional cases even in municipal policy where there were dangers that individuals would abuse the right of proper!'^ and in which the state would prevent that abuse; that the practice of nations still further illus- trated the truth that the title to property was not absolute, and that wherever there was a nation in possession of a grept bounty of Providence, any source of happiness and advantage to mankind, which it failed to use for the benefit of mankind, other nations might assert a right to interfere and take possession of it and turn it to the general benefit; that the whole policy of the colonization by civilized states of the newly discovered regions of the globe was a constant illustration of that truth and of that policy, and that it was defensible upon that ground and upon that ground alone. It is true that there have been a thousand excesses committed in the course of carrying out those policies of colonization. The excesses cannot be defended, but the policy itself is entirely defen- sible. ■■■ ■• ; '■ ;.\ ■ ■ ^ _ These views, as it seems to me, respecting the origin and foundation of property and the reasons upon which it stands fur- nish a true and sufficient ansv^er, and the only sufficient answer, to the attacks of socialism upon the institution of property. They regard the institution of property as proceeding from great social necessities, and as founded upon the nature of man himself, and consequently they assure the everlasting perpetuity of the institu- tion. So long as the nature of man remains unchanged the institu- tion of private property, the most beneficient of all the fruits of civilization, will remain also. In the course of my observations on the value which mvmicipal law astij^nsto the preservation of property itself, I had occasion to recur to an instance which I supposed the law of Admiralty fur- nished, namely, in cases of salvage. I stated, what I supposed to be the law, that a salvor on the high seas meeting with a ship that was absohiiely disabled and unable to save itself by its own means and its own resources, might take possession of it, even against the will of the master, and even though the mailer tere himself the owner. One of the learned arbitrators (Lord Hannen) re- quested to be furnished with an authority upon that point. It was rather disturbing to me, I confess, to have a doubt suggested from such a source. ;0- ■' if - ..4MA.. i of mankind; lividuals one i right of pi'o- aoi generally, rty by indivi- thc purposes ptional cases at individuals e state would further illus- )lute, and that eet bounty of 1 to mankind, other nations of it and turn 2 colonization the globe was y, and that it nd alone. It committed in ization. The ntirely defen- re origin and it stands fur- cicnt answer, iperty. They L great social himself, and of the institu- ed the inslitu- I the fruits of ich municipal id occasion to dmi rally fur- ; I supposed to ith a ?hip that its own means , even against [• terc himself Ilannen) re- hat point. It ubt suggested Wfrn". OV MR. CARTER. 241 Lord Hannen. I thought you were stating it too broadly ; that was all. Mr. Carter. Yes ; I 'vas afraid I had stato.d it too broadly I have no access here to books of reports cither American or English, to ascertain fully what has passed into judgment ; hut I did recur to one or two text-writers, ana I have something upon that subject which may be deemf>d pertinent. Prof. Parsons in his work upon maritime iaw, which is a book of recognized authority, he having: b^^'en for many years a leadmg professor in the principal law school of the United States (that of Harvard) says this, (page 264, Vol. II, Parsons on Shipping and Admiralty) : It has been made a question wlietlicr persons forcibly taliing possession of a vessel against the will of the master can claim as salvors. Hut we think it must be obvious and certain that, on the one hand, the masters reluctance or resistance to the savinj; of the property under his charge sliould not bar the claims of salvors, but ratlierenhaiice them, if their services were necessary, or in all respects meritorious and useful. But on the other hand his opposition would be a circumstance of great weiglit in determining' whether their services, were necessary or meritorious, Sir Charles Russell. I think that is not the case where th.? master is the owner , Mr. Carter. I think it is. Do you mean to say that Prof. Parsons does not so intend ? Sir Charles Russell. No; he is dealing with the case of the representative of the owner — the master, not the owner himself. Mr. Carter. What the case is, with which he is dealing I am unable to say, not having access to any Reports ; but the principle vhich he lays down is, that the reluctance of the person in charge of the property, his opposition to the taking possession of the salvor, does not detract from the claim of the salvor, but rather enhances it; and i^ that be true in reference to the master of the ship. I rather think it follows as a necessary consequence that it would be true even if he were the owner at the same time. If the owner of a vessel has the right to say to the salvors, " You must not take possession of it, " he can commit that right to an agent. It will be my purpose now to endeavor to make an application of these views as to the grounds and reasons upon which the insti- tution of property rests to the particular question Avhich is before us. The general principles I have gone through at seme length. I make no apology for going with them at that length; for the question which this Tribunal is to try is a question of property as between nations. It is the first time, so far as I am aware, that any such question has been submitted to an international tribunal, or indeed to any tribunal at all ; and the decision of it, therefore, i.i>- iL - >«e«iiKWMicr «rinw»««iMM<»«rn^^i»-' - m ittn.1 242 ORAL AR(;L'MENT >'\ ■' •ia :nrt n m. m. 4im i ii;.;. requires a thorough investigation into the grounds and reasons upon which the institution oi" propinty rests. In order to appjy these views to the case hel'orc us it is neces- sary, of course, that we should have a more particular and precise view of the facts in rehition to the fur-seals themselves ; we should have a clear knowledge of the facts respecting their nature and hahits; the methods hy which they arc pursued and captured; the danger's which threaten the existence of this species of animal, and the means which we can employ to avert those dangers. The Arbitrators will hear in mind one of the general conclusions which I had reached in respect to the right of property was this : That it extended to everything which embraced these three condi- tions : First, that it was an object of utility and desire to man; second, thai the supply was limited, that there was not enough for all ; and third, that it was capable of exclusive appropriation Now, hrst as to the utility of these animals. That is(>bvious and conceded. Every part of them is useful to man, their skins, their Ilesh and the oil which they afford; but their skins are the most useful part, as they furnish a garment of great beauty and utility and which is greatly desired all over the globe. The extra- ordinary eagerness with which the animals are pursued is full evi- dence of their utility, and the great prices which these skins bear in the market also evidences that fact so completely that I >ieed not dwell upon it any further. Next, as to their nature and habits. Where are we to go for our sources of information upon that topic. What is the evidence before this Tribunal to which it can resort for the purpose of infor- ming itself respectinglhose facts? There are several classes of evi- dence. In the hrst place, there is a large body of common know- ledge in respect to animals, their nature and habits, which every intelligent person is supposed to possess, and all this may properly be appealed to. In the next place, there are the works of natural- ists of recognized authority which may also be appealed to, works written in whatever language, by men who have given themselves to those studies to such an extent as to establish themselves as auUiori titles upon the topics of which they treat. In the next place there are the reports of the Commissioners appointed under the terms of the Treaty, which as will be perceived, from examin- ing the treaty, are made evidence; and although the Commis- sioners could be personnally cognizant of only a small part of the facts which it was necessary for them to learn, still their reports, and their opinions arc made evidence, not only in relation to facts which fell under their observation, but facts of which they gained their knowledge by such methods as seemed to thera suitable and best. Both the joint and several reports are alike made evidence. kHP" 'U mil reasons it is neces- and precise ; wc should nature and iptured ; the i of animal, (igers. conclusions ly was this : three condi- ;ire to man ; t enough for ation it is ohvious their skins, kins are the L beauty and The extra- id is full cvi- ;e skins bear that I 'need we lo go for the evidence )ose of infor- ilasses of evi- nmon know- which every nay properly \^s of natural- led to, works n themselves liemselves as in the next lointed under from examin- the (lommis- dl part of the their reports, lation lo facts h they gained suitable and ade evidence. OF MR. CARTER. 2i3 I do not say they are made evidence of equal value, hut they arc both made evidence for the information of this Tribunal. Besides that we have, from eachside, a very large number of depositions of witnesses whose testimony has been taken, ex parte, of course, because there was no opportunity for cross-examination; but nevertheless they are a source of information in the nature of the testimony of witnesses, tiie best which the nature of the case admits of; and both parlies have resorted to them. Upon two of those descriptions of evidence i have an observation to make as lo their relative and comparative utility and trustworthiness before this body. First let me speak in reference to the depositions of the witnesses. These will be found, to a certain extent concurring, and to a certain extent, conllicting. They are the de[>ositions of witnesses whose characters, stations and apparent trustworthiness are very different. We have some of great intelligence, and sup- posed impartiality, who have had opportunities of observing the habits of these animals ; and among these may be mentioned the various agents of the United States, and of the lessees of the United States, who have lived upon these islands for years and made the seals a subject of observation. Obviously the testimony of those men, intelligent observers, is entitled to very great weight. In the next place there are depositions of other witnesses who have visi- ted the islands for othc' reasons, but have had means of observa- tion, not so extensive as those to whom I have alluded, but still good means of observation; and their evidence is also of consider- able weight. Then we have the evidence of a great number of what I may call common witnesses — the Indians, the Aleuts, the natives on the islands; the Indians along the shore; the Indians and whites engaged in pelagic sealing. There are depositions in multitude from persons of that character and description. Their opportunities for observation are good. The trouble about them is that they do not practice much care in expressing themselves; and their trustworthiness is by no means so good as the witnesses which I have before mentioned. We know that they belong to a class whose characters, interests, whose habits, do not furnish the strongest assurance that they are speaking the truth; and therefore the testimony of such Avitnesses must be taken with a consid- erable — a very great — degree of caution. In the British Counter Case will be found various aftidavils tend- ing to show that certain persons whose affidavits were given in the Case of the United States were not correctly reported by the persons who took their afJidavits; statements by them that they did not say things which were imputed to them; and those impeaching evidences go very far, necessarily, to discredit those witnesses. Where it is shown that a witness has made two different statements ■h 244 ORAL ARGUMENT ip M. •i: J','' ";!i|i -Itf at two dinocnt limes, it does not show, indeed, which one of the statements is trne, or whether either of them is true, hut it does show that that witness is not to be credited. The number of the instances, however, in which the testimony of witnesses on the part of the United Stales has been successfully impeached on those gro-'nds is comparatively small. The great bulk of the testimony remains unimpeached. The value of testimony of this character depends very largely upon whether the side against which it is, or is sought to be, used, has had any opportunity of scrutinizing it, and of impeaching it in the various ways in whicli the testimony of a witness can be impeached. If it passes that ordeal, that is one very considerable circumstance in its favor, and it may be the more properly relied upon if it has successfully passed such an ordeal as that. All the testimony of this character, or substantially all, upon which the Government of the I'nited States relies has been freely and fully submitted to Great Britain and its agents for the purposes of criti- cism and impeachment. Their testimony of the same characte r, h o wever, has never been submitted to us. i have already remark- ed in speaking upon the motion which has been before the Tri- bunal of the inequality to whicli the I'nited States wa.i subjected in that particular. I have remarked u|)on the plain aiid obvious advantages Avhich Great Britain enjoys in the way of refuting, criticising ard impeaching the testimony of our witnesses. I have now to say, in view of the circumstance that ours was freely submitted to them, and that they chose, without any good reason, to reserve theirs from our criticism, that ours is entitled to the greater credit wherevef they come in conflict. So much for the testimony of these witnesses. I am not ffoins; to criticise them in detail because I have not the lime. That work will be done by another. I have something to sav hi reference to the comparative merits of these joint and several re- ports of Commissioners. Senator Morgan. Mr. Carter, is there any motion to exclude, that part of the testimony in the British Counter Case — on the ground that it ought to have gone into the Case? Mr. Carter. No ; we have made none. No motion of that kind, is made. I have pointed out the difficulties whicli Avould attend the making of such a motion; the embarrassing results which suc- cess upon such a motion would lead to; and the iinal conclusion of those who have represented the United States that they would ou the whole, accept tlial testimony, and leal with it — with its weight, its credibility and its trustworthiness — by biinging to bear upon its trustworthiness the considerations which I have now mentioned. In commenting upon its weight and trustworthiness before this one of the hut it does iiher of the ises on the 0(1 on those G testimony cry largely lO i)e, used, peaching it ess can be onsiderahle perly relied it. All the which the y and fully iscs of criti- ! characte r, dy rcmark- ire the Tri- 1.1 subjected md obvious )f refuting, tnesses . I i was freely ood reason, tied to the . I am not t the time. ig' to sav in several re- to exclude, e — on the )f that kind, ould attend which suc- )nclusion of ly would on li its weight, bear upon mentioned, before this OF MH. CAUTKH. 24$ Tribunal, we shall rely upon the circumstance that our testimony of this sort was submitted to our opponents and they carefully re- served theirs from our attack. As to these reports : What was the purpose for which these .Joint Commissioners were appointed? I have spoken to that point already in what I said upon the argument of the motion to which I have referred. The idea was originally suggested in the scheme of settlement which Sir Julian Pauncefote proposed to Mr. Blaine. Senator Morgan. You mean the draft convention? Mr. Carter. That draft convention, in IS'JO. The suggestion came from Sir Julian Pauncefolc that the two (iovernments were not agreed as to what the facts were in reference to seal life, and the modes bv which tiie seals were pursued upon the sea and upon the isla..- =. His notion was that if they were agreed upon the facts it would probably be easy to settle the controversy by a convention, and that tiie proper course was to make an attempt lo arrive at an agreement upon the facts by appointing men of in- telligence, men of science— in one Avord experts— whoso testi- mony could be trusted; make them joint comniissionncrs, send them out to the islands; have them make an investigation of all the facts ccmnected with seal lite and the methods by which seals were pursued, and report the facts and report what in their opin- ion would be proper regulations designed to preserve the seals from extermination. The idea, therefore, assumed that these joint Commissioners were persons who were entirely to be trusted — trusted as to their intelligence, as to their impartiality, as to their scientific attainments, and as to all qualities which serve to recom- mend the opiviions of men. They were to be a commission of experts. My learned friend. Sir Charles, made the observation while he was speaking upon the motion referred to that it did not appear to him that there was any particular sanctily connected with the reports of these Joint Commissioners. I beg leave to dilfer with him upon that point.. There was a great deal of sanctity — using that word in the sense of importance — attached to them. It was sup- posed that these Joint Commissioners would furnish these two Ciovernments Avith the absolute truth upon the questions which they were appointed to examin.' and that they would so furnish them with the truth that there would be no difficulty in reaching an adjustment of the controversy I)y the establishment of regu- lations designed to preserve the seals. That was the view upon which these Joint Commissioners were appointed ; and we have their reports here. These gentlemen were all of them men of the highest character. They were all of high r-** " jaj^ ' i ' . ij v » jvi "' "•- " nu ll— I * "tii^ 2i6 GRAF. AUr.UMENT Jili •I f.i ffl attainmonts and perfectly rompctent to make a thorough investi- gation of the ([uestions submitted to them and to ascertain the truili and make that truth apparent in their reports. The Com- missioners on the part of the United Stales adopted that view of their functions. They conceived thai tliey nothing to do with dif- ferences behveen the two Governments; that the question whether the United States had a superior claim or right to that of citizens of other nations to the seals was something with which they had no concern ; that the question whether the citizens of other nations had the right to pursue the seals on the high seas was a question with which they had no concern.; that the only point which they were to investigate was what methods must be pursued in order that the race of fur seals might he preserved from extinction. In other words, they looked upon the question, not from the point of view that here are different nations both of them capable of reaching the seals, the United States capable of reaching them on land, and other nations capable of reaching them on the sea, and that there was no common authority to control those rights. They did not look upon it in that point of view. They looked upon it as if the whole world were one country, and as if all mankind had the same intei'est in the question and the only thing to be ascertained was what measiu'es were necessary in order to preserve the seals, leav- ing the question as to whether those measures might, agreeable to the views of dilferent -countries, be settled by diplomatic agen- cies which had power over such questions. This is what the Commissioners of the United States say as to what they conceive tojje their fuictions, (page 31 o Case of the United States) : Desirinp to remove every obstarle in tlie way of the immediate considera- tion of this subject, llie question of the formality of the Conference was waived on our side and the formal meetings of the Commissioners in Joint Conference began on the afternoon of February dl, at the Department of State. Mr. Joseph Stanley-Brown was selected as the secietary of the Joint Com- mission on the part of the United States, and Mr. Ashley Froude on the part Great Britain. In determining the nature of the Conference it was agreed that in order to allow of the freest possible discussion and presentation of views, no formal record of the proceedings should be kept and t at none but the four members of the Commission should be present during its deliberations. In further attempt to remove all reslrictions upon tlie fullest expression of opin- ions during the Conference, it was agreed that in our several reports no reference to persons, as related to views or opinions expressed by members of the Commission during the Conl'erence, should be made. Meetings of the Joint Commission were held almost daily from the 11th of February until the 4th of March, on which day the joint report was signed and the Conference adjourned sine die. Early in the progress of the Conference it became evident that there were wide differences of opinion, not only as lo conclusions, but also as to facts. It seems proper here to refer briefly to the attitude of the Commissioners on mai •fl 1 gh invosti- Hirlain the The Com- lat view of i) with dif- )n whether of citizens I they had ler nations u question )int which pursued in extinction, the point of 3f reaching 1 land, and that there ley did not it as if the id the same tained was seals, leav- , agreeable natic agen- ts say as to ]ase of the le considera- ;e was waived it Conference e. le Joint Com- ! on the part is aRreeJ that ion of views, ! but the four erations. la ision of opin- ,1 reports no f members of tn the 11 th of as signed and at there were o as to facts, [tiissioners on OF MH. CARTER. 247 the imrt of the United Slates or to the standpoint from which they endeavoured to consider the questions involved. , .• i iv p ,i,a The iuslructions under which we acted are conta.ned m Art.c e 1\ of the Arbitnition Convention, and, as far as relates to the nature of the mau.ry. ■"'".'''Eadl'novornment shall appoint two Commissioners to investigate con- ioiutlv with the Commissioners of the other Government all die fac s having ., relation to seal life in Bering Sea, and the measures necessary for its propel urotection and preservation.' , .• , i <„ ^ Tl is sentence appears to be simple in its character and entirely clear as to its meaning. The measures to be recommended were such as in onr judgment nece 'sary and sufficient to secure the proper protection and preservation of seal life. With questions of international rights, treaty provisions, com- mercial interests, or political relations we had nothing to do. U was our opi- on il t the consi.leratious of the Joint Commission ought to have been r^s ticted to this phase of the question, so clearly put forth in the agreen.en under Siich the Commission 'was organised, and so evidently the original intent of both Governments when the investigation was in contemplation. Had he preservation and perpetuation of seal life alone been considered as was urged by us, there is little doubt that the .,o.nt report would have bee of a'much more satisfactory nature, and that it would '.'«;;« ;";:"ded much more than a mere reiteration of the now universally admitted act that the umber of seals on and frequenting the Pribilof Islands is now less ban n former years, and that the hand of man is responsible for this dnn.nution Thai our owA view of the nature of the task before us was no shared by our colleagues representing the other side was soon manifest, and it became dear that no sort of an agreement sufficiently comprehensive to be worthy of coi iteration and at the same lime definite enough to allow its conse- • quences to be thought out, could be reached by the Joint Co-m-on un ess we were willing to surrender absolutely our opinions as to the effect of pelagic sealTns on the life of the seal herd, which opinions were founded upon a caS Td rmparlial study of the whole question, involving the results of our own observations and those of many others. n^.-linP tn Under such circumstances the only course open to us was to decline to accede to any proposition which failed to offer a reasonable chance for the ; e etaUon and protection of seal life, or which, although ^^^^^^^ in the right direction, was, by reason of the vagueness and ambiguity of is ter s ii^apable of definite interpretation and generally uncertain as to mea- ning r obedience to the requirements of the Arbitration Convention that " th; four Commissioners shall, so far as they may be able to agree make a joint report to each of the two Governments, the final output of the Join Commission assumed the form of the joint report submitted on March 4, it be rfound impossible in the end for the Commissioners to agree upon more iZ\ single general proposition relating to the decadence ^f -« ' « «" the Pribilof Islands. It therefore becomes necessarv, in accordance ^^.th the tur- iher provision of said Convention, for us to sul in this, our separate repo t a tolerably full discussion of the whole quest.,, -. as we view it from the standpoint rLred to above as being the only method of treatement which Ssures entire independence of thought or permits a logical interpretation of the facts. , But the British Commissioners took an entirely different view of their functions. Their view was that this herd of sea s having its home on the Pribilof Islands, certain superior advantages and ■■' -^ ■ ■ 'B Rm r jyi'.y- ' W !' " •MVWMRPHLim^fgW ■ii^- 248 ORAL AH(;iJMKNT facilitios wcro enjoyod hy tlio (Jovcrnmont of Iho United States for taking them on the Islands; that, ou on the other hand, the seals were during a large part of the year in the high seas, where they could be pursued hy tiie citizens of other nations; that under these circumstances the citizens of other nations had the same right to pursue (hem on the sea that the United States had to take them on the land, and that their function and oflice was to contrive such regulations consistent with that supposition of respective national rights as would best tend to preserve the seals. That view is man- ifest all over their report; but 1 will read a section or two which serves to bring it out very clearly; beginning with Section 123 found on page 20 : 123. Besides the general right of all lo hunt and take the fur-seal on the hiph seas, there are, however, some special inleiosls in sucl. liunlinf,', of a prescript ive kind, arising from use and immemorial custom, such as those of the " natives " of the Prihyloll' Islands, and of liie inhabitants of the Aleutian Islands, of South-eastern Alaska, of the coast of Hritish Columbia, and of the State of Washington. There are also rights dependent on local position, such as those of the (iovernments possessing tlie breeding islands and those con- trolling the territorial waters in or adjacent to which the seals spend the win- ter half of the year. Such rights do not, however, depend on position only, but also on the fad that the seals necessarily derive their sustenance from the fish which frequent these waters, which, if not thus consumed by the seals, would be available for capture by the people of the adjacen'. coasts. Tlie rights of this kind which How from the possession of the breeding islands are well known and generally acknowledged, but those of a similar nature resulting Iron; the situation of the winter home of the seal along the coast of Jkitish Columbia have not till lately been fully appreciated. 124. Referring more particularly to the Pribylotf Islands, it must perhaps be assumed that noarraiige+nent would be entertained would throw the cost of the setting apart of these islands as breeding grounds on the United States' Government, together with that of the support of some 300 natives. It mav ' -loted, however, that some such arrangement would offer perhaps the be, iid simplest solution of the present conllict of interests, for the citi- zens of the United States would still possess equal rights with all others to take seats at sea, and in consequence of the proximity of their territory to the sealing grounds, they would probably become the principal beneficiaries. 12o. Any such disinterested protection of breeding islands eitlicr by Russia or the United States would possess the extreme simplicity of being entirely under the control of a single Government, w'hereas in every other project it becomes necessary to face the far more difficult problem of international agreement to some code of regulations involving an accompanying curtailment of rights. In other Avords, any such arrangement must be viewed either as a concession of certain rights on the high seas, or a concession of peculiar rights devolving from territorial possession of the breeding islands of the seal, made in each case for the purpose of inducing equivalent concessions on the other side in the ccmmon interest. 126, For practical purposes, the main consideration is that any scheme of measures of protection shall absolutely control, so far as may be necessary, any and every method of taking seals; and from industrial considerations, and ill order proj. "^rly to determine on reciprocal concessions, it is necessary iHfli i States for [\, the seals rvhore they iiider tliose ne right to tako them iitrivo such ve national e\v is man- two which iection 123 r-seal on the liiinlinf,', of a li as tliose of tlio Aleutian a, and of the losition, such d those con- lend the win- osition only, tenance from amed by the aeon I coasts, edinf,' islands niilar nature ; the coast of nust perhaps row the cost Jnited States' res. offer perhaps , for the citi- all others to srritory tothe ificiaries. icr by Russia eing entirely ler project it international i: curtailment d either a? a ti of peculiar ilands of the concessions ly scheme of e necessary, nsiderations, is necessary 1 OF MH. CARTEH. 249 to assume some rulinio; principle in accordance with which these shall be governed, and such may he found, in a rough way, in postulating a parity of interests as between pelagic sealing and si> iliuK on the breeding islands. I This would involve the idea that any regula "f the llshery, as a whole, ' should be so Irann-d as to affonl as nearly as pu -sibiean equal share in benelit j or proceeds to these two interests. There we see the views upon which the Commissioners on the part of Great Britain proceeJed. Thoy conceived that, here was a conflict between the rights of nations, which must be taken into account in any consideration of measures necessary to tiie pre- servation of the seals, because that conllict between the dill'erent rights of nations could not be settled by any scheme of regulations which would in effect take away the supposed right of one nation. In their view the seals must perish before that could be done; and they conceived that they should postulate, a parity of interests between the United States Government having the control of the breeding places, and the pelagic sealers who could pursue them at sea. All their investigations, their opinions and their reports are made upon that basis. In other words, they conceived them- selves to be in charge of the interests of pelagic sealing, then, for the most part, represented by Canada. They conceived themselves to be in charge of that interest, and bound to defend it; and consequently their re[)ort will be found to be from one end to the other a defence of the interest of pelagic sealing. That is the character of it. I do not mean to complain of this, or to urge it against those distinguished gentlemen who were the authors of this report as any piece of unfairness. I only state the fact that that was their conception of their duties, and that we must take that fact into account in considering their report. And this is a pretty decisive fact. In what category does it place them? It makes them partisans at once, just as much as my learned friends on the other side are. They are defending from beginning to end the interest of pelagic sealers. How does that operate on the measure of confidence which this Tribunal should place in their conclusions? It is entirely destructive of it. That is the simple result. It is entirely destruct- ive, except as to a very limited extent. Where these gentlemen speak and testify as to facts which they say fell under their person- al observation, they are to be treated as witnesses to those facts of the most unimpeachable character, but, nevertheless, witnesses testifying under a strong bias. Where, on the other hand, they proceed to give us their opinions as to what the facts are, such opinions are to be discarded altogether as being the opinions of, not impartial, but of partisan observers. They are like the opinions of counsel, and they differ in no respect from them. m OUAL ARGUMENT That, I venture lo say, was an ontiroly (mtodcous conslruction of thoir (lulios as markod out by the treaty. The conception of the treaty was that the opinions of these gentlemen as to facts, should have the highest value and should [)rove the existence of the facts themselves (juile independently of the question as to whether they had actually observed the "facts themselves. What the two (lovernments wanted to know was what the facts were. They sent these Commissioners there to inquire what the facts were. Of course they could not ascertain them all, or but a very small part of them by personal observation. They were sent, to make incpiiries, and to communicate to the two Governments concerned the results of their inquiries upon questions of fact, and, therefore, their opinions were designed lo be — and if they acted in accord- ance with this conception of their functions, would justly be good evidence of the facts. They were to make joint inquiries too ; but I would not draw a very close line between the methods by which they gained their information, whether by point or by sepa- rate inquiry. If they had the proper conception of their functions, their opi- nions, drawn from the best sources which were open to them, as to the facts and as to the measures necessary for the preser- vation of the fur-seal, would be regarded as evidence, and evi- dence of the highest character; but itall depends upon the ques- tion whether they were acting impartially, and whether they were acting in accordance with that conception of their duties under which they were appointed. The President. In point of fact they made separate observa- tions, did they not? Mr. Carter. Oh yes; they did make separate observations. Of course the general intent of the treaty undoubtedly was that these observations were to be joint. If both sets of Commission- ers had acted in accordance with that conception of their duties which is marked out in the treaty, I do not think any serious dilfer- ences would have arisen between them upon facts which they did not jointly investigate. Witii these observations concerning the relative weight which is to be assigned to the reports of the Commissioners, I proceed to state the facts in reference to the nature and habits of the seals ; and for that purpose I shall employ the report of the American Commissioners; for it states them with the greatest precision, with the greatest apparent impartiality; and I think it will be found that that statement of facts thus made by them is abundantly established by the testimony in the Case. The President. Do you intend to make your observations in regard to the parts in which both sets of Commissioners were ^iW"* ■^il-^'^<'>Z''.'£x^^fi?-^i^^''fi •-'•':■•.- islruction lion of the ts, should ! the facts !th(!r they the two re. They icts were, ^ery small , to make concerned therefore, in accord- justly be uiries too; ethods hy r by scpa- their opi- to thorn, lie preser- !, and evi- the ques- ?ther they leir duties e observa- servations. ^ was that mmission- lieir duties ious ditt'er- vhich they ight which proceed to the seals ; American precision, it will be ibundantly rvations in jners were OF MH. CARTER. 251 agreed, or do you intend to make them merely as to the American observations? Mr. Carter. I now take the American observations — the report of the American Commissioners as to the nature ami habits of th(^ fur-seal as showing what the fact is. The President. Without noticing w lial the British Commission- ers concur in? Mr. Carter. WithoulnoticingwhelhertheBrilishCommission- ncrs concur or not. I shall point on! prosenllv that the British Conin issioncrs, althnugh their report contains a multitude of doubts as to whether this or that is true, of conjoctun's that this or that other thing may be true, yet when you come lo see whether they really dissent from Ibis statement of facts by the American Commissioners, the dissent will be found to be r.f very inconsider- Now to show the facts as to the life-history ol the fur-seal. 1 read from the Report of the American Commissioners : 1. The NnrthRi-n fur-seal {rallorhinus ursinns) is an iiiliabilaut of Bpnn« Sea and tlie Sea of oUiot", where it bn- tu i i 2. In winter the fur-seals migrate into the North I'aciiic Ocean. I he nerds from the Commander Islands, Robben Reef, and the Kurile Islands move south along the Japan coast, while the herd belonging to the Pribilof Islands leaves Bering Sea by the eastern passes of the Aleutian chain. 3 The fur-seals of the Pribilof Islands do not mix with those of the Com- mander and Kurile Islands at any time of the year. In summer the two herds remain entirely distinct, separated by a water inter val of several hundred miles ; and in their winter migrations those from the Pribilof Islands follow Timmerican coast [in a southeasterly direction, while those from Ihe Com- mander and Kurile Islands follow the Siberian and Japan coasts lu a southwes- terly direction, the two herds being separated in winter by a water interval of several thousand miles. This regularity in the movements of the jl>»'erent herds is in obedience lo the well known law that miuralory animals follow defi- nite mutes iu migration and return year after year lo the same places to breed. Were it not for this law there would be no such thing as stability of species for interbreeding and existence under diverse physiographic conditions would destroy all specific characters (1). 1. The tiotne of a species is the area over which it breeds. It is well known to naturalists that migratory animals, whether mammals, birds, fishes, or inomi.ers ot other groups, leave their homes for a part of the year beciiuso the chmalic conditions or the food supply become unsuited to their needs; and that wherever the homo or a i mtmi i ii^mjrKfm a w m i^^ f . > A * i^mM«a0 m' »m m m m II ORAL AHC.IJMKNT The ptila^c! of tli« I'iil)il(if fm-scih tlifTcrs so iimrkfully rrorii Mint of the ConiinamliM' Islands t'iir-»i'(ils Unit, the I wo arc n-aililydisliiimiislicd liy nxperls, uiul liavi' very dilTcii'tit values, the fortiicr coiiiiui'mdini,' iniicli higher i)ric.eii than the lalleratlhe regular London sales. 4. The old liieeding males of llin I'riltilof herd are not known to range much south of the AhMilian Islands, hul the females and young appear along the American coast as tar south as norltiern Calilurnia. Heturning, the herds of females move north ward along the Cfiasts of Oregon, Washington, and Hri- t'sh Dolumhia in January, Ft^bruary.and March, occurring at varying distances from shore, [''ollowing the Alaska coast northward and westward they leave the Nortii Pacific Ocean in June, traverse the eastern passes in the Aleutian chain, and proceed at onces to the i'riliiiot Islands. i>. The old (breeding) males reach the islands mucli earlier, the first coming llie last week in April or early in May. They at once land and lake stands on the rookeries, where they await the arrival of the females. Kach male (called a bull) selects a large lork on or near which lie remains until Angiist, unless driven off by slrongei' bulls, never leaving for a single instant night or r the liy p.\[>crl8, i^ln'r i>ric,e» II to rnnge p|io(ir along g, the herds )n, and Kri- if,' distances 1 limy leave lie Aleutian first coming e stands on nale (nillfid ^'iist, iinlnss ifiiil or on when it remains upon the rookeries. It requires also rocky beaches ;n which to bring forth its young. No ii-iands to the northward or southward of the Pribilof Islands, with the possible exception of limited areas on the Aleutian chain, are known to possess the requisite combi- nation of climate and physical conditions. All statements to the effect that fur-seals of this species formely bred o.i the coasts and islands of California .md Mexico are erroneous, the seals remaining there belonging to widely different species. Their mig.-alions as described in this report are roughly rep- resented oil this map {indicating on map). When they leave the Pribik.f Islands in the autumn to go on their Southern migration they take this goneral course {indicating) to the coast of CalifovP a and, comparatively speaking, widely disperse ; on their return, following a cuvir.se nearer the shore they pass through the Eastern passes of the Aleutian cliain back to the Pribilof Islands {indie zting on map). The President. You mentioned that they pass nearer the coast on their return. Do you mean that they follow the ter- ritorial waters? Mr. Garter. Do you mean by " territorial waters " within three miles of th»^ shore? The President. Yes. Mr. Carter. I believe never. Scattered seals may occasion- ally go in, but as a herd, never, I think, so near the shore as that. When they go tirough the passes of the Aleutian Chain — those narrow passes — very likely they pass within that distance of the shore. Senator Morgan. 1 think, Mr. Caiter, there is some testimony to show the fur-seals sometimes have entered and been captured in the Straits of San Juan de Fucca. Mr. Carter, Oh yes; there is a great deal of suggestion here and there, In the Case and Counter Case of Great Britain evidence .^irtMiUiSal ■i> Mp iii H « . i m wii»i i !> r lowever, are seen t Coast; these are sealers that they )f Islands. 11 has ly summer on sov- and southeastern Tie to our notice, that are wounded thereby rendered irce give birth to ay 1)6 at the time. l)ilof Islands to the finds the climatic lis species requires flgy atniorphere to ng summer sea;>on Iso rocky beaches the northward or sception of limited e requisite combi- 3cies formely bred are erroneous, the icies. are roughly rep- lYicn they leave I their Southern licatmg) to the widely disperse ; shore they pass lain back to the pass nearer the r follow the ter- srs "within three is may occasion- the shore as that, n Chain — those L that distance of is some testimony nd been captured f suggestion hci*e Britain evidence I OF MR. GA.RTER. 388 of a conjectural character, that seals visit this place, and haul out at that piooe, and breed on other places than the Pribilof Islands; but I am taking now, as correctly representing the facts as estab- lished by the evidence, the report, the views, of the American Commissioners. I feel tolerably certain that when their report comes to be compared with the evidence, and when all the evidence is thoroughly sifted, it will be found that their statement will stand in the main as a truthful and accurate account. Senator Morgan. Is their statement based upon the same evi- dence that this Tribunal has to consider, or is it based upon facts \shich have come to their knowledge as experts? Mr. Carter. Upon both sorts of evidence. Their statements have the character af evidence. They were appointed for the purpose of giving their opinions upon these questions and their opinions, from whatever sources derived, are therefore evid- ence of the facts which they v.;-te. They are original evidence of the fact which need not be further substantiated. At the same time they are substantiated by the great weight as we think — the over whelming weight — of the testimony which is before this Tribunal. Senator Morgan. Suppose the same effect is conceded to the report of the Commissioners on behalf of Great Britain? Mr. Carter, f have had occasion already to observe that so far as the opinions of those commissioners go as to facts, so far as their statements purported to be based upon other observations than their own, I have submitted grounds and reasons which lead me to the belief and I think will lead the Tribunal, or should lead the Tribunal, to the belief that those statements are not to be talien where they conflict with the statements of the American Commis- sioners. The President. Do you take the opinions of the American Com- missioners as evidence? Mr. Carter. I do. The President. And you reject the British opinions as evi- dence? Mr. Carter. I do, in general; and that for the reasons stated, tiiatthe opinions of the American Commissioners have been form- ed in pursuance of the duties imposed upon them by the '.erni£ of the treaty, in accordance with that conception of their functions which is contained in the treaty; and the views of the British Commissioners are based upon a different conception. That is all i purpose to read at present from this report. It gives a general description of the nature and habits of this animal, the conditions of seal life upon the islands and the facts attending the migrations of the seal. h -^mtM- Ittf . jui&ir molestation by man, or orther ter- res rial enemies, should be included. The defenceless condition of these aninals upon the land renders this security ini's Is. The old bulls Arive them away immediately. It is not until the age of six or sr.en years that they are lit tor ser- vice, or called upon to render service upon the rookeries. And until they arrive at that age they haul out, as it is -ailed, by thomselvcs, in places behind the rookeries, or upon sandy beaches away from them. While thus hauled out by themselves these young males are, of course, separated from the rest of the herd, and they can be driven from the places where they are to a couven- •liMw- n to these lis purpose ;eive to be ove pnumer- ound for the r ortlier ter- iou of these no terrestrial i(!al require- oxeinpt from ould speedily aces does not KJuction. Oh hie of afford- preservation e know re- South Seas, ot however were visit- ;ry speedily wrts, ahstains niwa animals s to his power ,• praticrthle to "non-breeding lie permanent •oved by the upon these the seals at perfect con- rive there it rd the non- lie breeding ately. It is B fit for ser- erics. And s -ailed, by ndy beaches Lselves these of the herd, to a conven- — ~ii. — ' — —-—^ OF MR. CARTER. 287 ient place for slaughter, without working any disturbance to the breeding rookeries. Fourth If the herd were exempt from any depredation |,y man its num- bers would roach a po nl of e.,nilibrium at which the deficiency of oodo," other permanent cond.lions, would prevent a farther increase. At tl, point Uie animal hemg of a po%«mo». nature, an annual draft from non- Ire S males might he mad. by man of 100,000 - perhaps a larger riun Xr .^ without causing any appreciable permanent diminution of the herd The fact that is there stated that if this animal were not disturb- ed at all by man, the numbers of the herd would eventually reach a maximum at which they would remain is more fully stated explamed and justified by the American Commission'M-s in their ' report 11 ,s, I suppose, a perfectly familiar conclusion to all naturalists that all races of animals, if undisturbed by min have a tendency to increase, up to a certain maximum. The; Kie subject to the attacks of enemies other than man; and there are certain causes at all times operating upon them which would eventually prevent their increase beyond a certain amount. If this were not so of course the animal races would hU the seas eventually In the case of the lur-seals they do have enemies other than man. We do not know what all their enemies are. Their greatest marine enemy is known. It is the killerwhale, which follows these herds makes Its attack upon them, and doubtless kills a great manv' How many of those that are born each year are thus killed by their natural marine enemies there is, of course, no means of determi- ning. The President. I.s that killer whale hunted and destroyed bv man? ^ •' Mr. Carter. iN o ; 1 do not think it is. I never heard that it was. The President. It is not an object of whaling.* Senator M'.-gan. I think Uiat it is the one which yields oil and wi>aleboue; and, of course, if it is, it is hunted by inan assi- duousiy. Mr. Carter. It may be true; but I have never heard myself that the killer whale was hunted by man. Its means of escape are too great. * Lord Hannen. Is it really a whule? r Mr. Carter. It is suggested to nje that tli(> killer whale is a small whale, and not taken either for its bone, or its oil. That I shall venture to state as our view of the fact, so far as that is important. The President. In point of fact, the protection by man of the seals does not go to the extent of taking this killer whale for the sake oi preserving the seal herds? ■ -^ ■ .IT ■• fyr kl? »> ORAL ARGUMENT f ■: Mr. carter. No; man does no extend his protection to the herd '" I^^Zii seals were h.ft to its natural enemies, I have said it wdi^ increase to a certain maximum point, winch pmnt would be de erm^ned by the operation of various causes, ^ufiurjency c. Ld would be one. That would furnish a natural hmit to tie ncrease of the herd. Another limit to the mcrease o the he d o Inothcr circumstance that would operate to l.mit he mcrease "f he herd if left to natural conditions, is the contests ajnoug the males themselves for the possession of lema es. Ot course, ^ nr sumably there is an equal number of males and toma es lln e.ch velr and as the animal is in a high degree poly- .amou onJmale answering for anywhere from twenty to forty or iny females, there are Uerce conllicts between the males tor gam- in J porsessi^n of the females, and gaining p aces on these rook- eries^ Those contests are very deadly, and result chsadvanta- geously upon s.al life upon the rookeries in different ways, it frr n Ho slau-hter of t great many males ; and it interferes vei> Sly wSi hel!;^^^^^^^ of'reproductton during the season o repro- dut' on The way in which these contests between the males ope- rxtt to reduce the numbers of the herd, is evidenced m vnrH)us ^t^r diLs of highly polygamous animals; ^or mst^ hu a o _ the American bison, now nearly extinct. That ^vas a niMny ooulmZ animal; and the extent to which the males were d.sa- Uod ami killed by conllicts with each other was very great. 1 belt he s me tLg is true of all other animals which are .ghly polygamous, with deer, and elk, and moose and «^>ch «"""^ ^.^,., , The President. Are the bodies of those animals that are killed by one another picked up for the use of their turs? Mr. carter. No; 1 apprehend not. ' The President. There are quite lost. Mr cirter They are lost. The breeding rookeries a ;e let I^^^' X.^Ttluv as Dossible They cannot be recovered witli-ut undisturbed, as Idi as possimc. n^^y f foi-inrr thom When eoiuK «mong the rookeries for the purpose of taking them >N Utn the supply of males is not excessive, of course the coulict^s are not so tVenu^^tn number, and not so fierce and deadly m characte^ Taket^iis herd of seals when it has reached its maximum under condUion where it is not disturbed by man. If man appears upon ZZZ, and makes a draft upon it^ he c-|ake a certain niunb wWhniit affecting the normal numbers ot the herd. hat arises •om rhe1:::unfstance that the animal iy^olygamous in its cha- racter If he takes no females, but confines h s draft to males and leave enough males for the service of the who e herd, he does not ouch the bfrth rate of the herd. Consequently there conti- nu s shI to be as many born as before, and the herd would pre- » the herd liavc said int wouUl iciency of lit to the the herd, c increase its amoDg IJf course, d females jree poly- to forty or ; for gain- liese rook- isadvanta- ways. It rfercs very m of re pro- males ope- in various ice, bull'alo IS a highly i were disa- y great. I 1 are highly limals. it are killed nes a-e left ired with' Hit 2m. When llicts are not In character, inium under ppears upon tain number That arises s in its cha- iift to males, herd, he does ■ there conti- d would pre- OF MR. CARTER. 2fi9 serve its numboi-s at that maximum point, suffering a slight dimi- nution at lirst by the number of males 11, at are taken. The President. Do you mean to say that would be a sort of peacemaking, and consequently a sort of taming the animals, chan- ging their modes of life and a domestication? Mr. Carter. No; I do not mean that, in that sense. The President. If you suppress the occasions of lighting be- tween them, of course you make them tamer, Mr. Carter. You do not suppress them. You affect them to a slight degree, but not to a sufficient degree to make any appre- ciable dilTerence. You still leave a large number. You siill leave a suporffuous number. They are still abundant after you have made your draft from them. The President. That is one of the modes of man, of going among these animals and domesticating them. Mr. Carter. It is whal I call husbandry. 1 do not go so far as to assert that it makes a substantial change in their nature. [ only assei-l the fact that you can take a very large number from them without in any degree diminishing the normal numbers of the herd. You diminish it at first, of course. If you have a herd of five millions, male and female, and take a hundred thousand of them, you diminish the herd at first by that tOOOOO; but you will soon reduce the size of tlie herd to a number, below wliicli this annual draft of 100 000 — that particular number I assume — will not carry it. They continue the same. Of course it is the same with seals as it is with any other polygamous animal, the same as it is with sheep or horses or cows. You can lake a cer- tain ni iber of males without in any degree diminishing the num- bers of le herd. It is a matter, not of scientific knowledge; it is a raattei not for abstruse investigation. It is a matter of common barnyard observation. That is all if is. I have stated as a fact which I suppose to be capable of substan- tiation that, taking this particular herd of seals, you can make a draft upon it of 100 000 young males without any danger to the stock, and without diminishing the normal numbers of the herd. What is the evidence upon which that statement can be sup- ported? Of course experience must alone determine the question of how many you can take; betiuse we do not know what the number is of the dilFerent sexos on the island. We do not know how many males there are, and we do not know how many females there are. W^e do not know how n.iany are de- stroyed annually. We have no knowledge of that sort' to appeal to; and of course we must rely on expei-ience alone. But we have a very long experience. The President. Are the seals counted on the ishuuis? MaaiTK^iK^iflHtfCJMkiiikM 1*1 ' ^l!il riiSi. : i 1 - ,1 'A I., -it ! 260 OHAI. ARGUMENT Mr. Carter. No- The President. No one knows Ihcirnumbep.' Mr Carter. Oh no; altompts have been made to estimate their numh(M-s in ways like these. Those occupying a space, say mieoi square wouhl be counted, and then tlie whole area would Ta ta^d and upon the assumption that each 100 ieet contain- ol as many, a compulation would be made; but all accounts now ^ree that all the methods now relied upon tor the purpose cu de- termining what the precise number there is are only misleading You cantay there are more than a million; bnt whether there arc two, or three or four or five millions, no man knows or can know. Con ectures have been made, and the fact has been stated by ob- sei^^ers, based npon conjecture, and tiiose slatements have received a certain degree of credence; but the result of the evidence is tha it is impossible to tell with any approacii even to precision, what the'numbers are; and that the failure to roach accuracy is so com- nlete that it is best not to rely upon any attempts. ^ The President. As a mat^c oi fact, the herdsman does no knoTvmucli of his herd, oxcop . to killing part ot the increase Mr carter. Ho does t,oI know how many there are ; that is vervccrttin. lie knows, however, that there are n great many Zve' I have said that a draft of 100 000, can be made from this narticular herd. The evidence ol that is this. ^ The nussians discovered those islands in 178fi or 1787 hey did not know, or if they did know, paid no attention to, he laws nature in rderence to the increase of these ammals and the de- ease of them; and the. made indiscriminate drafts "Pon --' taking both males and fi?males. They were governed probabl> by the consideration of the state of the market- how many the mar- et wo Id take prohtably. Of course it would not do to throw a very^reat many upon the market, because that would not be pro- - filable But this sort of indiscriminate attack npon them very soon , ea V reduced the numbers of the herd. They then tound Ihem- ?elves\.ompelled to take notice of the fact that the animal was po- Ivgl nous, and that it was only by the exercise ot care, and b> adding to natural laws, that they could preserve this valuable ace l^iov then began to contine their drafts to young males; Lndfnu% established a system under which the draft was whol y Smiled to\oung mal.s; and that system was tully and perfecth established somewhere about 1810. ,.^t«hlished The President. That system was not yot tully estdblishtd under the UusNjan Ukase o; 1799? Mr Carter. No; it was not. \ , The Resident. Nor even during the greater part of the second IJkasc of 1821? nalc their ICC, say, •ea would t contain- unts now ose of took an enormous number. The President. The Russian lessees had no more pow^ei . Mr carter. The Uussians had no authority to prevent it. llie United States Government had established no authority. The President. Was the Russian company dissolved by tlic ""' Mr!'c^ter. No ; but it had no longer any title to the breed- '"^TiirPresident. And no American company had been formed? Mr. carter. No ; no new American company had been formed . and the United States (Government had established no authoiity over them. So there was a period of lawlessness there. Anyone could do as he pleased. There was a sort of interregnum so to speak. That was availed of by many persons who made an in- discriminate attack - or to some extent ^"^^^^^^''^Y;;^^^^,- J."^ the seals. In the first year they took in numbers about 240,000. Mr. Justice Harlan. What year was that? Mr carter. 1808. They tried to confine themselves even then, to^he Scing of males'; and they were greatly aided in that effort, ana the seals were greatly spared by the -t-al ^e^^^ which the natives wh.) did the driving had acquired againt killing a female. Th- eslablisliment of the system and its^ long mainte- nance upon the island, of saving the females, ^ts obvious benehls and util ties, its manifest necessity to a preservation of the heid Zd so habituated the natives to it that they had acqmred a^ aversion to the killing of females; and that aversion had a bene i- cial effect even during this period of unregulated capture^ Stil it is not improbable, and there is some evidence to ^^ow tha there were perhaps thirty or forty thousand females taken at that ;r. Subsequently to that the United States - ^Wished its authority, leased the property to a company by a lease, one o Ih x^gu ktions of which gave the United States power to contro the number that should be taken annually; and under that the lessees from the first began to take 100,000 young males a ^%he president. Can the Government fix the number every year? Mr. Carter. Every year. The President. And alter the number every yeai . Mr. Carter. Alter the number. ablished 1 to prc- 3nt there c called, and they cr/ The d by the he breed- i formed? n formed? authority Anyone num so to ade an in- Le — upon ; 240,000. »lves, even led in that i\\ aversion aint killing ng mainte- )us benefits )f the herd, Lcquired an id a benefi- ture. Still, show , that iken at that ablished its ease, one of iv to control under that ung males a umber every ear? OF MR. CARTER. The President. Without owing any indemnity to the com- pany? Mr. Carter. AbsolUiCly at its own pleasure ; and it has agents, superintendents, there, for the purpose of observing the con- dition of the herd in order to enable it to exercise that dis- cretion the more wisely. I may say further in reference to the slaughter of females, and to the protections against it, the United Slates upon acfjui- ring the sovereignty over the islands, passed laws making it a penal oll'ence to kill any female. It was a peual olfence to kill any seal at all without its authority, but a penal offence to kill any female under any circumstances. It began, as I say, by taking 100,000 a year. The President. Is that written down in the grant also, that they are not to kill females? Mr. Carter. I cannot say. The President. No other person has authority to kill a seal, you just said. There are laws against the killing of seals. Then if the only ones who have authority to kill a seal are the company, then the company must be interdicted from killing females? Mr. Carter. It is interdicted by law — the law of the Uni- ted Stales. A statute of the United States binds even the ac- tion of the executive government. The executive government of the United States could not give authority to kill a female seal. It is a crime. Mr. Justice Harlan. Mr. Carter, some of the Arbitrators want to know whether the concession granted to this company was granted by the executive department under the authority of an act of Congress? Mr. Carter. It was. There was a special act of Congress providing that the islands might be leased out and provision made for putting the privilege up at auction and obtaining the highest bidder ; and the lease was executed in pursuance of those provisions. The government was compensated in two forms; first, by a gross sum paid annually and then by a royalty upon each seal killed. Lord Hannen. It was only the source of the lease that we wanted to get at — whether it was under the direct power of an act of parliament, or whether it was done by the executive. Mr. Carter. It was done by the executive department of the government under the authority and in the discharge of its du- ties imposed upon it by the act of Congress. The President. By a special act of Congress ? Mr. Carter. By a special act of Congress. ^ ^" "HTumi'SiSSw? 264 OHAL ARGUMENT The President. Not made for this company, l)ul made for the leasing? Mr. Carter. Oh no ; not made for this company. Mr. Justice Harlan. In Section i of tlic Act of Congress of July 1st, 1870, it is provided '' That the Secretary (»f the Trea- sury shall lease for lln^ rental mentioned in section of this act " the privilege of taking seals on these islands. The President. The act of leasing to such company was the more action of the executive. Mr. Justice Harlan, lender the authority of the act of Con- gress. [The Trihunal thereupon took a recess. J • [The Court resumed at 2.18 p. m.] Mr. Carter. When the Trihunal rose for its recess 1 was stating that, as a matter of fact, it is possible to take 100,000 young males from the herd without diminishing its normal number. Mr. Justice Harlan. Are you .speaking of the present time or a previous period? Mr. Carter. 1 was taking the herd at its maximum amount ; that is, I assume that if man withholds his hand the herd will reach a certain maximum beyond which it will not go if left to ex^ lusi- vely natural causes. If man interferes and confines his draft to the young males he may take 100 000 annually without diminishing the normal numbers of the herd. The first draft will of course diminish the number byjhc number taken ; but after the first few years the normal number will remain the same. 1 had stated, as supporting that view, that drafts to the extent of from fifty to se- venty-five thousand had been taken under Russian occupation, and the herd had increased from a depressed condition, so that at the time when it passed into the hands of the American Government its number were as large if not larger than ever. I had spoken of the irregular and indiscriminate drafts of 1868, when 240 000 were " taken in one year. When the I'nited States came into possession i»s lessees began by taking 100 000 annually, and they continued to take that number annually until 1887 — a period of seventeen years. It was not until 1884 that any real diminution in the size of the herd was observed. Now let us see what fortunes the herd had been subjected to in the course of that period of seventeen years. This inquiry introduces me to the subject of pelagic seal- ing and the attack which was thus made upon the seals by man. If the members of the Tribunal will turn to page 366 of the Case of the United States (Report), they will there see the amounts of the draft proceeding from this kind of attack del by the hand of man, "m OF MU. CAHTKn. MB nacle for [igrcss of Ihc Trca- i of this f was tho :t of Con- as stating mg males at time or amount ; will roach ,0 ex^'lusi- is draft to minishing of course first few stated, as fifty to se- )ation, and that at the overnment 1 spoken of 000 were possession continued ' seventeen in the size es the herd ■ seventeen elagic scal- jyman. If the Case of lunts of the nd of man, and that is hy pelagic sealing. The practice of pelagic sealing begun in t87;2. Now, speaking of pelagic s(>aling, I do dot mean that kind of pelagic sealing that hud been carried on alway,; hy the Indians on the coast; 1 class that kind of pelagic sealing wilji Ihe causes of diminution which proceed from natural enemies of the seal other than the acts of man. The herd had assumed a nor- mal nmximum with that element prior to the lime which 1 am taking into consideration hegan. Pelagic sealing increased from to year, year as indicated hy the tahle of lignres which I now read : The nunibfii' of seal skins acliiiilly recorded as sold as a rosull of pelagic sealing is shown in the following tahle :* Yuar 1872. 1873. 1874. 1875. 1876. 1877. 1878. 1879. 1880. 1881. No. of skins. 1,021) 1882 — 1883 i,949 1884. l,t)i(i 188S 2,042 1886, :i,700 1887. 0,593 1888. \2,rm 1889. i;),(ioo 1890. ia,54i 1891. Yr>ar. No. of ikin*. n,7oo 0,193 •li.lKtO i:),ooo :)8,9I)7 :t;i,Hoi) 37,789 40,998 48,519 62,5UU ' Number esliniatod from value given. Now, during a period of more than ten years, this draft of too 000 young males was made hy the United States upon this herd without any substantial diminution of its number. The contrary of that will he asserted ; at least that proposition will not be ad- mitted to the extent to which I have slated it here. So far as tln^ evidence is dealt with on that subject on the part of the United States, it will be dealt Avith hy Mr. (]oudert, I have not the time to go through the evidence ; nevertheless 1 shall slate the main grounds upon which that statement is supported. The evidence showing, as the United States contends, that up to the year 1884 there w^as no substantial or perceptible diminution of the number is derived from the testimony of persons who were on the islands and who knew Ihc facts. There is no evidence to the contrary substantially contradicting that. There are some vague and un- trustworthy conjectures that a diminution had been observed prior to that time, but the substantial evidence, I think I am well justi- fied in assuming, confirms the position which I now take ; and that is, that for a period often years and more this draft of 100 000 was taken by the United Stales without any substantial diminiili(m t»f the numbers of the herd. In 1884 it will he seen that pelagic sea- ling had assumed large proportions, the numbers taken in that year being 14 000, while in 1885 13 000 were taken in this man- e® IMAGE E TEST TAI V] S'*' ^■m <*^ 1.0 I.I 1.25 Photogra] Scieno Corpora ■■ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 •i-' IIIIU 1 2.2 40 12.0 1.4 1.8 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 \ iV ip o % V ^/^: T»B«*gr«*B'>»^ plainest of fools who kills the goose that lays llie golden eggs. Here is a property the annual income of which' is very large, and that annual income can be made permanent, but only on condition that the normal numbers of the herd are maintained. It is there- fore (he interest of the United States (Government to prevent the taking of excessive drafts. It is a question of self-interest — of that interest which operates most strongly upon the minds of men. What is the interest of the United States is also the interest of the lessees themselves. The United States (lovernment has adopted the policy of leasing out these islands for a long term — twenty years — and the lessees pay a considerable gross sum for the pri- vilege. It is therefore to "their interest to keep the herd at its highest remunerative strength. 1 proceed : Seventli. Pelaf,'ic sealing has three inseparable incidents : (1) The killing; can not be connned to males; and such are Ihe greater faci- lities for taiiing females that they comprise three-lourths of the whole catch. (•2) Many seals are killed, or fatally wounded, which are not recovered. At least one-fourlli as many as are recovered are thus lost . (3) A large proportion of the females killed are either heavy with young, or have nursing pups on the siiore. The evidence upon these point is fully discussed in Appendix. Eighth. Pelagic sealing is, therefore, by its nature, destructive of the stock. It cannot be carried on at all without encroaching pro tanto upon the normal numbers of the herd, and, if prosecuteil to any considerable exteul, will lead lo such an extermination as will render the seal no longer a source of utility to man. There can be no discrimination exercised in pelagic sealing. Every seal that is found is killed, and no distinction of sex can be observed; and, in point of fact, the amount of the catch is, as we maintain, three-fourths females. Now the evidence upon that point will be more fully discussed by my brother Coudert. 1 have time only to call the attention of the Tribunal to some leading fea- tures. In the lirsl place, U) what we should suppose to be true from the probabilities of the case. Here is a herd of seals — ani- mals which from their nature arc highly polygamous, insomuch that one male suffices to serve from twenty to forty females, and for u long series of years large drafts have been made upon the males. The females therefore greatly outnumber the males — perhaps three or four to one. Therefore the catch of females ought to out- number the catch of males by three or four to one. Again while the seals arc on their northerly migration the females are easily approached and more easily killed. Such are the probabilities; now what is the evidence as to the fact ? The testimony given on "^^^ V C OF MR. CARTER. 269 our side by a multitude of depositions proves that the catch of fe- males IS Hs much as eighty or ninety per cent, of the whole num- ber taken. That evidence is derived from individuals engaped in pelagic scaling. In the next place we have the evidence of the furriers who handle the skins, and who can tell at a glance the dif- ference between a male and female skin ; and their evidence tends to show that the proportion of females is very much greater than seventy-five per cent. Against this we have a very large number of conllicting affidavits —on the part of (ireat Britain, and 2 may allude to these affidavits. There are twenty-six witnesses whoso depositions were given on the jiart of (ireat Britain who state that the catch of females is larger than that of males. Nineteen agreed that the proportion was sixty per cent, of females in the whole catch, one placing it as high as eighty per cent. There were tliirty- five witnesses who said that the numbers were nearly the same Thirty-eight stated generally that more males tiian females were taken; and then there were thirty who slated that there were so- metimes more females and sometimes more males. And there were, as I have already said, nineteen who testified to sixty per cent. Now, putting all that together, it does not dis- place the superior evidence submitted on the part of the United States, fortified as it is by the probabilities of the case, that at least seventy-five per cent, of the catch is composed of females. In • the next place, in pelagic sealing there are of course— it must be so — a great many seals fatally wounded which are not captured Now the general purport of the evidence ofithe United States is to the efi"ect that at least a quarter of the number of seals that are wounded and eventually killed are lost and not recovered. And the other fact which I have stated as an inseparable feature of pelagic sealing is that a large proportion of females arc either heavy with young, or nursing mothers. Those killed on their mi- gration north of the Pribilof Islands are heavy with young. They give birth to their young a day or two after landing. They appear to land only when forced to do so for the purpose of giving birth to the young. And these affidavits give sickening details which I do not think it proper to dwell upon now respecting the slaughter of females heavy with young. They are skinned upon the deck of the vessel, and the young drop out bleating and crying and remain in that condition; sometimes for days. After giving birth to their young on the island the females are obliged to go out to sea in search of food, and they travel great distances, sometimes, it is said as far as a hundred and fifty miles. They have been found and killed at such a distance, and it was apparent from their con- dition that they had young on shore. The details of the killing of these nursing animals— mammals with distended breasts, are IP-? 1 TjJi 270 OIIAL AR(.UMENT sickoning; hut I do not dwoU upon them here because I am only d(!aling with the material facts which I shall endeavor to bring to bear upon the question of property. Now this recital of the prin- cipal facts which it is needful to take into consideration in deter- mining the question of property embraces the following proposi- tions which 1 believe cannot be disputed by the other side : 1. The seal is a mammal, highly polyamous, but producing one only each year. Its rale of increase is, therefore, exceedingly slow. 2. It is defenceless against man (m the land, and is easily found and captured at sea. 3. The present draft made upon the herd is not by a few bar- barians to supply their immediate wants, but by civilized man to supply the eager demand of the whole world. 4. The race may be substantially exterminated by man by either form of attack, that the land, or that upon the sea. ; Now as to the land, the possibility of extermination is admitted. The race can be exterminated by the Unided States. The seals are there, absolutely within the power of man, for live or six months of the year, and Ihey could all be killed. And if any remained after an indiscriminate slaughter in one year they could be killed in the next. It would take but Iwo or three years to exterminate the whole of Ihem. So far as they constitute an ingredient of the commerce of the world and a bounty of nature useful toman, they could be absolutely exterminated by the United States if the United States chose to do such a thing. They can also be exterminated by pursuit at sea. That will not be admitted by the other side, but the members of the Tribunal will see that that point is beyond dispute. The learned counsel for Great Britain take the ground that this herd will not stand an annual draft of 100,000 young males — that that is destructive. Now we contend that it will stand a draft of that amount. There is of course a certain number of young males that may be taken, and we think it ranges as high as 100,000. If you go beyond that point you begin to destroy the herd, because you do not leave a sufficient number of males for reproduction. Our position is that the limit to which a draft may go is as high as 100,000. The position of Great Britain is that that is too great a draft, and they offer what they conceive to be evidence tending to show that this is so. They point to the limi- ted draft which Russia made as being the safer number and they say that the herd began to diminish under the larger draft made by the United States before pelagic sealing began; well, according to them, the herd will not stand a draft of 100,000 young males annually. Then, if it will not, what draft of females will it stand ? Why, under the system of pelagic seahng, that has already reached /^^mMmS T* ■■ to bclwocn sixty and scvonly thousand a year ; and whon wo take into consideralion Ihft number killed but not recovered — The President. Is the number killed by American vessels included? Mr. Carter. On page 207 of the Report of the Hritish Commis- sioners will be found such evidence as wo have in the Case showing the catch of the I'nited States vessels. I thought that was included in the pelagic catch contained in the tables of the American com- missioners. But I am corrected in that particular, so that the table from which I read must be increased by the amount of the American catch, whatever it may be, in order to get the true ligures. But the American catch cannot be easily determined. Sir Charles Russell. I thought the ligures at page 207 embraced all. Mr. Carter. There is a difference, however, between the Arae-* rican and British Reports as to the amount of the catch of the Cana- dian pelagic sealers. The table contained in to the American Case Says Iht the catch was 62,500 in -1891 , whilst the British Report says 08,000. But so far as these details are important, they will be dealt wi'h by my brother Coudert when he comes to treat upon the evidence. The point to which 1 wish to draw the attention of the Arbitrators here, is that it is perfectly manifest that the race can be exterminated by pelagic sealing as well as by the sealing on land, because if it cannot stand a draft of 100,000 males it most certainly cannot stand a draft of 50,000 females annually. It could not stand a draft of 5,000 femafes, because the killing of the females operates upon the birth-rate and consequently upon the increase. 1 think itwill be demonstrable upon the assumption favored by my learned friends on the other side that if it will not stand a draft of 100,000 males it will not stand a draft of 10.000 females. The race maybe exterminated therefore as well by capture on the sea as by capture on the land. Mr. Justice Harlan. \Vhat is the duration of life of these seals ? Mr. Carter. 1 take their productive life to be about eighteen years; that is, the female seal, according to the Report of the American Commissioners. Mr. Justice. Harlan. My recollection is that the average life of the seal is about liteen years. Mr. Carter. Now let me call the attention of the Tribunal to the striking difference betveen dealing with a herd of fur-seals like these, as regards keeping up their numbers, and dealing with polyga- mous domestic animals of any sort, such as horses, cattle, or fowls. Iney can be raised all over the surface of the globe ; there is hardly a spot where they cannot be produced. If there is a great demand for them in the market the production of these animals will be ''% jVW ■'~'^'T""-"f - 272 OIIAI. AH(;UMENT 9lim\ilato(l, and thoic is immcdialcly a saving of fomnlos. and (ho nunibors Uillod will l)0 taken from I lie males. Conscqnontly, lliciv is an immense increase, and llial increase can he carried on irido- fmitely. In reference to the females of domestic animals, there need he no rnle against killing, hecanse these animals can he mnl- tiplied to a perfectly indelinile extent. With the seals, however, the case is far dilVerenl. There are'only fonr places on the globe where this animal is prodnced, and the demand for sealskins far exceeds the supply; and the ol)ject is not only to preserve the pre- sent normal numher, hnt to increase it. To do this there is no way except saving all the females. Every reason and motive in the world unite to condemn the slaughter of any single female unless she be barren ; for you cannot destroy on(^ without diminishing Ihe race pro tanto. And these are Ihe conditions lo which we are confined, owing lo the circumstance that there are only four places on the globe where these useful animals can be protluced. We must accept the conditions and content yourself with them. Now, having shown the dilference between the se animals and domestic animals of a polygamous character, I will pvocred to speak of the dilTerence between the seals and wild animals, such as birds of the air. wild ducks, fishes of the sea, mackerel, her- ring and all those lishes which constitute food for man and upon which he mak(>s prodigious attacks. There you cannot confine yourself to the annual increase. You do not know it; you cannot separate it from the stock ; you can- not tell male from female, and you do not know whether there are any more males than females. There is no reason why, in mak- ing drafts, you should make them from males rather than females. Therefore you cannot practise any kind of husbandry in reference to wild animals of the description I have mentioned. That is one of the distinguishing characteristics of these seals as compared with other animals over which man has no control. With the seal, man, if he does his duty, and accommodates himself to the law of nature, can practise a husbandry and obtain the whole benefit which the animal is capable of affording without diminishing the stock; but with other wild animals, such as ducks, lishes, wild ^ame, he can practise no such husbandry at all. And here it will be observed how Nature seems to take notice of the impotence of man and furnishes means of perpetuating the species of the wild animals last mentioned. In the first place, she makes provision for the production of prodigious numbers. Take the her- ring, the mackerel, the cod ; they do not produce one only at a birth but a million ! They produce enough, not only to supply all the wants of man, but the wants of other races of fishes that feed upon them. They inhabit the illimitable regions of the sea; their -"ir* mmmsi'' mmmmm ■n ^ OF MH. CVUTEH. 273 sources of food are illiiniluhle, and llioir produclivo powers are iliimilable also, and therefore man can make such drafts u[>on them as he pUiases without working any destruction of llieni. There is another mo(h; designed by nature for their preservation, and that is the facility wliich she gives them to escape capture. Man hiys hold of some of them which come witliin his range, but the great body of them never come there. With the seals it is otherwise. They have no defence. They arc obliged to spend five months of the year on the land where man can slaughter them ; and even at sea Ihey caimol escape him, as liie evidence clearly proves. The distinction between the seals and the domest- ic polygamous animals and other wild animals is extremely im- portant and worthy of careful observation because of its bearing upon this ([uestion of property. Marquis Visconti-Venosta. Do you know any other animals beside the seal that are situate in like conditions ? Mr. Carter. None under precisely the same conditions. I hear my learned friend whisper " sea-otl((r "; but you cannot practise any sort of husbandry with the sea-otter. And yet, such is the value of the sea-otter, that man has almost exterminated that animal. The President. They are not protected. Mr. Carter. They are protected by the laws of the United States; they are a part of the wealth of the Northern Sea. They were formerly the principal element of value in those northern seas ; and the value altaclied to the skin of this animal was very great even when it was found in larger numbers. The President. You will not put the sea-otter on the same legal fooling as you do the fur-seal ? Mr. Carter. No. So far as I am aware, man has no sure means of preserving the sea-otter, for it seem to me that he has exter- minated it almost altogether. Then take the case of the canvas- back duck, a bird which abounded in America. As long as man made but a slight attack upon its numbers — fifty years ago, when there were no railroads and when the means of transporting it were quite imperfect — this bird was found in great plenty, but it was confined to the locality where it was found. But now it can be transported five thousand miles without injury, and the whole world makes an attack upon it. The law may protect it a little, but it cannot protect it altogether from the cupidity of man; and this creature too, is fast disappearing. In other words, these birds have all the characteristics of wild animals, and none of the characteristics of tame animals. You cannot practice any husbandry in regard to them. No man and no nation, can say to the rest of the world that he has a mode of 18 274 OH A I, A II (IL mi: NT dealing with thcni which will tmahlo him lo take Iho annual in- crease without destroying iho stock. I shall make use of that hereafter : and you see now the important hearing it has. No man and no nation can say with regard to the lish in the sea that they can protect them. II" they are in danger ol' destruction, they cannot say " We can enforce hy our power a limitation of the annual draft lo the annual increase;. " There may be some (ish as to which that may perhaps be said. When a more accurate knowledge is had of the habits of lishes, it may conu; to be ascer- tained that the inhabitants of some shores can protect some races of (ishes which resort to that shore, provided other persons are required to keep their hands oil'. The President. And that would give a right of appropriation, in your view? Mr. Carter. Yes; that would tend that way. If they could, and no one else could. That would be the tendency of my ar- gument. 1 am glad to see that the learned President catches it. The consequence of the proved facts is that the fur-seal cannot maintain itself against unrestricted human attack. It cannot do it. That is admitted here. We have a joint report by all these Commissioners which is lo the eil'ect that the fur-seal is at present in the process of extermination, and that is in consequence; of the hand of man. The treaty itself under which you are sitting admits it; for it admits the necessity of regulations designed to prevent extermination. The cause of this diminution, the grounds and reasons which are working tlu; extermination of the seal are disputed beetween us. My learned friends upon the other side say it is this taking of the seals on the islands that is, in part, causing it. We say it is the pursuit of them b- pelagic sealers; but, whatever the causes, there is no dispute be reen us as to the fact. These seals are being exterminated; and that means that the race cannot maintain itself against the hand of man unless the assaults of man are in scmie numner restricted and regulated. As I have already shown, this consequence of the inability of the race to maintain itself is inseparable from the killing of females. That race cannot maintain itself unless the slaughter of females is prohibited. It is a mammal, producing one at a birth. The rale of increase is extremely slow, ant that increase can be cut down by a very small annual killing of the mothers from whom the olTspring is produced. This inability of the race, this infirmity of the race to hold its own in presence of the enormous temptation to slaugh- ter which is held out to man, is inseparable from the slaughter of females. The killing of males, if it were excessive, would pro- duce the same elfect. No doubt about that. W' e do not dispute. ^mm ;nc(l to OF MH. CAHTKR or deny, Ihal. All wo siiy is thai you cun cany llio killi^^ of males to a certain point wilhoul any injury .vhatever. The President. Mr. Cartel, may I -beg to ask you a question? Mr. Carter. Certainly. The President. The American Company, the lessees of the I'rihilof Islands, consider the fur-seals as their property, or tho property which thoy ai'o to dispose of, according to the ;^rant liy the United States. If they consider that Ihey have a MwrX right to these animals do you not think they have reason to C()m|)lain that the liiited States allowed |>ela{j;ic fishing by some of their fishermen on the American coasts, and can you slate, as a matter of fact, whether the Company, or the lessees, have applied to the I'niled States (iovernment to make an enactment to prevent that iishing, that pelagic sealing, according to the right which has been given to them. If I understand well your purport, and if your purport is the same as the lessees or the American (^mipany, it is an injury to them that pelagic sealing should be carried on and practical destruction of female seals be ^,i 'mI oh by American lisliermen. Do you not thirdv that they have ; right to complain, and I inquire whether they ever did comi>lain fo the American Government sinc(^ 1884 for instance, wi clj is Mie date you slate as being the initial dale when they began to p^rcei , o that pelagic ""I'l.ng was offensive to their righh. Mr. Carter. I think tiie lessees of th' 'slands would have a moral right to complain to the United Slaf(!S if the Tniled Stales, having leased these islands to lliem uiuter certain conditions, allowed their own citizens to c-irry on pelagic sealing, or anv other form of destructicm. They would have a moral right un- doubtedly to complain and a very strong equity to (;omplain; but under the circumstances they have not, for the very first thing the I nited States Government did was to pass laws ngainst it. The President. On the islands? Mr. Carter. Gh no; on waters as well. The President. In the adjacent waters. If did not pass laws against American fishermen doing it elsewhere? Mr. Carter. But the I'nited States Government exercised all the power which Congress at the time supposed it had to prevent pelagic sealing. It supposed that in prohibiting pelagic sealing over the waters of Alaska — that is the phrase used — it embraced all those waters which it had acquired from Russia by the cession. The western boundary was that line which is seen drawn down there {hidicaling on map). The President. That is not the question. Mr. Carter. They, Congress, assumed that '' all the waters of Alaska " cmbraceall that portion of Bering Sea, and that, therefore, ''■t'Mf' ' k^ ~ in ORAL ARGUMENT their enactments prohibit pelagic sealingovor all those waters; and the United St"'os Kxccutive (lovernment has so considered those enactments. It does seize whenever it can, and exercises its ut- most diligence in seizing any American vessel canght anywhere in these waters engaged in pelagic sealing. Mr. Foster. And always condemns them. The President. That is not quite my question. My question is, does the American Company contend, as I understand you to contend, that the owners whoever they be, of the Pribilof herd, have a right of property or protection m these animals wherever they be; and if they have the right of property and protection, have they any legal right as well as moral right to complain of the United States not punishing pelagic sealing anywhere else wherever the seals may go ; for if I understand your purport they have a right of property or protection any where — not only in Alaskan waters. Mr. Carter. I agree to your suggestion that the lessees of these islands would have a moral right. The President. No'; I ask you whether they have a legal right? Mr. Carter. Not quite a legal right, perhaps, because at the time when their lease was executed and their rights were acquired it might be said to be the fair interpretation of that document that they took their right to the furseals subject to the existing condi- tion of things and that if there was any failure on the part of the United States to repress pelagic sealing they took it subject to that failure. 1 should, therefore, not consider that they have what is called a legal right; but 1 should think at the same time they liad a moral ground to say to the United States : " You are the owners of this herd, and being the owners of the herd, and being a nation, you have a right to protect them wherever that herd goes. Having that right and having let the privilege of taking these seals on the Pribilof Islands to us, we think that you are bound — bound in the exercise of your just powers — to repress this pelagic seal- ing. " I think they would have a right to insist upon that. The President. I would call that a legal right. Mr. Carter. No ; 1 do not quite consider it a perfect legal right because it might be said to these people : " No, we have never undertaken to protect this herd everywhere on the seas. We executed to you this lease. You know what the laws were. You knew what protection you would get. You did not ask for anything more. Having accepted your lease under those circumstances you must be content with it. " * ; The President. Iii fact they have not asked for any more. They have not asked for an act of Congress, a statute against Amer- ican pelagic sealing. ■■ Lli^^Mj!iim.il¥ ' iu u i waters ; and siderod those srcises its ut- ht anywhere i\Iy question •stand you to 'rihilof herd, lis wherever ] protection, complain of nywhere else ^our purport e — not only 5sees of these 1 legal right? Bcause at the vere acquired acument that cisting condi- e part of the ubject to that have what is ime they had e the owners ling a nation, oes. Having lesc seals on ind — bound I pelagic seal- n that. perfect legal " No, we ^here on the .'hat the laws You did not }■ under those any more, igainst Amer- OF MH. GAUTEH. 277 I know of no Mr. Carter. I cannot speak upon that point, evidence in the Case. Mr. Phelps. They have. Senator Morgan. I would like to say, Mr. Carter, in that connection that the number of seals that are permitted to the lessees to be taken is regulated by the lease and by the law. Under the lease of 1870 they were permitted to take not exceeding 100,000 seals annually which number might be reduced by the Government of the United States without any liability whatever for damages, according lo their estimate and opinion as to what public policy required. Under the lease of 1890 they were allowed to lake not exceeding 60,000 under the same conditions. So that what ever number the United States fixes annually of at any time ,of the year they choose to fix, it is the number that they may take and is the number they have {Agreed to abide by. They have no riyht to any greater number than the United States chooses to award to them. Therefore they cannot have any interest direct or indirect in the question whether we are preserving the seal herds or not if they get their number. The President. They have no direct right lo the average of the herd. - Senator Morgan. Not at all — not the slightest. Mr. Carter. 1 should still be disposed to agree with the sug- gestion of the learned President even under those conditions. Senator Morgan. That there would be a moral right? Mr. Carter. That there would be a moral right. Senator Morgan. I do not think so. Mr. Garter. That there would be a moral right in the lessees to call upon the United States to exercise that authority to preserve this herd; for they might argue : If you did exercise that autho- rity this herd would be in a condition in a few years to give us instead of 60,000, a 100,000. Senator Morgan. If you will allow me, the Congress of the United States which has but recently adjourned has made a provision of law by which all of the statutes that now apply to the Bering Sea shall be extended in their full force over any area of waters that might be determined by this Tribunal as being within the prohibition or within the "regulations which they have prescribed. The Congress, of the United States have prepared in advance so as to extend their penal and other laws over the area that this Tribunal is lo determine upon. It has done all that can be done under the circumstances. Sir Charles Russell. That was merely a provision to enable the United States to give legal effect to any regulations, if any, that should be enjoined by this Tribunal. lii f >( i'„i 278 ORAL ARGUMENT Senator Morg^an. That was in the hope of a proper adjust- ment of this question. Mr. Carter. It was a looking forward on the part of the United States to a concurrence in any measures which this Trihunal might adopt whicli would insure the preservation of the fur- seal. The President. What 1 wanted to come to, if you will allow me lo make my point a little more clear, is this : According to the 8th question of our article 6 we have to determine whether there is a right of pro|)erty and protection in these seals. I think your contention is that there is a legal right of property and pro- tection. Mr. Carter. Yes; it is. The President. That is for the United States; hut you do not admit of. a legal right or a moral right for the lessees of the United Slates to claim the right of property and protection. I think what Mr. Senator Morgan just explained accounts for that. Mr. Carter. Yes. The President. I wanted to make the distinction clear. Mr. Carter. Yes; I apprehend. If these islands were not in the possession of the United Stales Government, hut were in the possession of private indiviihials, I think there would he a moral right on the part of those individuals to call upon the Uniled Slates Government to exercise its powers on the high seas to prevent the destruction of those seals. The President. That is what Ihejljiited States demand from us to day? Mr. Carter. It is what the United States demand from you to day. It is what I am now endeavoring to show to this Trihunal. I am taking one step, and that is to say that the United States has a right of property here. My next step will he that having that right of property, they have a right to go there with lorce and protect it; and my next step will he that if they have not the right to go there with force and protect it, you ought to pass some regulation giving Ihem Ihat right. The President. Then theydonot protect their own property, — as yet, against the pelagic sealing. Mr. Carter. They do not protect their own property as yet, for the reason that they do not want to disturh the peace of the world. The President. Would it disturh the peace of the world if they were to act against their own citizens engaged in pelagic sealing? Mr. Carter. No; not at all; and we continue to act against our own citizens. 01 MH. CARTER. 270 Irom ./ The President. No, you do not do that. You do not act against your own citizens everywhere. Mr. Carter. So far as our laws go. The President. I say your laws do not go as far as your contention. Mr. Carter. No ; the laws do not go as far as our contention goes. The Congress of the United States is a different hody from the executive department of the United States. The exec- utive department of the United States suhmits questions of law, takes its position, here. I am here for the purpose of arguing them. Perhaps the Congress of the United States may not have gone through all the processes of reasoning which I have gone through. They act upon their own views and upon their own conclusions. They have taken the ground and have evinced their intention of protecting these fur-seals, and protecting them for their own henefit, against the attacks of pelagic sealing, from whatever quarter — their own citizens or others. They may have understood that their powers were confined to Bering Sea, and therefore limited their jurisdiction to the Bering Sea. They may have acted upon that 'assumption — an erroneous one, in my judgment. Mr. Justice Harlan. The President refers to the failure of Congress to enact a statute forbidding American citizens from taking seals on the North Pacific. Supposing that Congress could pass such a law, and did, what effect would that have upon the pelagic sealing, if the subjects of Canada' were left at liberty to pursue it? The President. That is another question. Mr. Carter. It would tend, possibly, to diminish the attacks, to some extent; how much, would be "a question. Of course, it might be argued by the Congress of the United States, it might be said by Congressmen : " If all the world is to be permitted to go up there and take the seals, we might as well let our own citizens go. We will not protect the seals against attacks by our own citizens if other people are to be allowed to attack them ". The President. You want to convince us first and the Ame- rican Congress afterwards, while you ought to convince the American Congress first and us afterwards. That is what 1 mean. It is merely a point in my mind. Mr. Carter. That the American Congress, after this Tribunal shall have established American rights, will liesitate at all in exercising the utmost degree of protection, is scarcely to be apprehended. The President. But it might have been in argument before us that the American Congress Irnl already admitted the right. ^'^1 Wi^^W«WSk**i;->i.,ir,f»5.-.-, 280 ORAL ARGUMENT '} 1 ft'' Senator Morgan. You will remember thai Lord Salisbury, I thinlv or Lord Rosebory, in discussing the modn\ vivendi which is now governin},- this matter, nuule the objection that the British Government anil the American ( JovernmenI would be tyin"' their hands by agreeing upon the prohibition of pelagic sealing during the pendency of this litigation, and permitting other nations to come in and take the seals at their will. Both Governments had to take the risk of it. Mr. Carter. Yes; that is undoubtedly true. But still the observation of the President is correct, namely, that if the United States had a property in these seals and a right to protect them upon its own possessions, it could al all times have prevented its own citizens from taking seals even in the northern I'acilie Ocean. It could have done that. It has not done it; and so far as that is an argument bearing upon the merits of this quesfion of property, 1 must allow it to pass unanswered; but as to the force and weight ■jf it, I must be permitted to say that it docs not seem to be very signilicant. The President. It merely shows the question is a delicate and disputed one. Ml-. Carter. The policy of passing laws of that character, the direct operation of which would be — allowing that these pelagic sealers were mere marauders — to restrain your own marauders for the benefit of the marauders of another nation, is not a very obvious one. There is one other fact perfectly indispulable in regard to pelagic sealing, and that is tliis : ihe" moment its destructive effect reaches a point where the maintenance of the industry on the Pribilof Islands ceases to be remunerative — that is, when it reaches that point where it is no longer worth while to maintain that establishment of two or three hundred Indians which are kept upon thet islands — then, of course, that industry must be given up; and when that industry is given up, that population must be withdrawn. They cannot live there without outside support. And then, of course, all |)rotection to those islands against the maraud- ing excursions of people who want to kill them upon the land is gone, and when that guard is withdrawn and all protection taken away, that herd of seals is exterminated. It is exterminated for the United States. It is exterminated for these lessees. They can no longer get anything out of it. It is exterminated for the whole world. It is exterminated even in respect to these pelagic sealers, for their occupation is gone also. They are all gone, in a common calamity, and gone very quick, too, after the guard is witiidrawn, an>^ that will take place just as soon as it ceases to be prolilablc to maintain it there. «■ OF MR. CARTIiU. 281 pelagic Now, there is a supertluity of young males. That super- tluity of yt)ung males can be taken upon the islands, and the taking can be limited to that, provided all interference is prevented by sea, provided pelagic sealing is stopped. That fact — although it appears to be manifest — that there is a superfluity of young males, is one which I wish to place beyond doubt. We say it amounts to 100,000 ; but whether it amounts to iiO,000 or 100,000 or i!00,000, there 2,9 a superlluity, and that superfluity can be sepa- rated and taken by the I'nited Slates on those islands without injuring the stock. As I say, that seems to be self-evident, but I do not know that it will be admitled, and I choose to state one or two circumstances which prove it. We have witnesses long resident upon the island and in charge of this business, who swore to it; bul it is also proved by Ihe overwhelming experience of one hundred years. It is proved by the fact that Russia, after her occupation of the islands, and while she did not conline her draft to this superfluity of males, adopted a course which tended towards the destruction of the herd and came very near destroying it. It is proved by the fact that when she corrected her methods and confined her draft to this super- fluity, in 1840, theherd continued to increase; sothal when twenty years later it passed into the possessi outsiders and from other illegal And Section 327, on page 58 reco|;d:;:i^.:^,/tn^:2: S'r^o.^": ParUcular instance has hoen 'Elands, the seals were ve.'v ,reatlv tXT'rl""' ^^^ «'^'''-icc about (he accordnigtonalivocounl/thenu he o '^^^ Th's occurred irH 836, when, rednred lo about 4,000, and (h?« e^ e? ' ,,f fn'' '" ^^ ''^"' J^'*'""' ^'^^ k.l led in »''alyearconsi;tedof upi mho' ll 'r, ""f """''^'- «'' ^^'^'^ of (he same kind have occurred since ./h T? / ''''''''''""^ ro^pectmgthe amount and posit 1 ofuie 1 „ ^ i^ ' T''^^''*" inforn.ation shows (hat such adverse condili n. n '*'''"'"^' ^''^ '" ^'«rious years seldom with ,ho san.e i„tc;:;::!;yrinS;""''/" '"■^' ''''' "^""«'^, P-J^abiy the wilh.irawal of iht^^^J^u^Z^'"''''' T''"'' **' ''''' ^°"-^''^^' »" gradually been introduced H^ien^' ""'''' ^•''^''in'ially that which had experience, but with ^fy^unJov^nt'^^r r'' "'^!' '' ""'■'' P-'""^-*! lo (he number of seals alknve. o ie ki , ,' P^'*"'';, ^'"^ exception related this time suddenly and verrhri, h J^'Hed annually. The numbe. was at Ided. as is elsewhere ;„7edo;f/de^^^^^ being in fact more than do.t former years showed that tleRusian^ 'f " '•'"'' "^" «^Perience of many might he n.aintaine,l wi , a reason ,bl ' 7'' ' /''''; ' """^'^•^ ^^"""^^ kiU'-'g. of the breeding groun.l t | ad in f-. f '"?^^ "^ ^''' '-'"""""-d well-being mation, resull^f in a gr;dU Ian .fet'lvT' '"^' '' ''" ''''' ''^^^"^^'•^ '"f-- The much larger nun.berpemiuLu: K^ I I ^ '"7"'"'f '" ""™^^^'" '^''«<^^'^- once removed the new con'Iro. u/trt.;: r^mn^'f S.l^ri^^^r^^' """"'^'"'^ ''' ■ steady, and gradual increase in the number of seals. I continue to read, COO. Theoretically, and apart from this ,„estion'of number and other ; . OF MR. CARTER. 283 matters incidental to the actual working of the methods employed, these were exceedingly proper and well conceived to insure a largo continual annual output of skins from the hreeding islands, always under the supposition tiiat the lessees of these islands could liave no competitors in the .North Pacific. It was assumed that equal or proximately equal numbers of males and females were born, that these were subject to equal losses by death or accident, and that, in consequence of the polygamous habits of the fur-seals, a large num- ber of males of any given merchantable age might be slaughtered each year without seriously, or at all, interfering with the advantageous proportion of males remaining for breeding purposes. 661 . The existence of the breeding rookeries as distinct from the hauling- grounds of the young males, or holluschickie, was supposed lo admit, and did in former years to a great extent admit, of these young males being killed without disturbing the breeding animals. The young seals thus " hauling " apart from the actual breeding grounds were surrounded by natives and driven off to some convenient place, where males of suitable size were clubbed lo death, and from which the rejected animals were allowed to return to the sea. The carcasses were skinned on the killing ground, llie skins salted, and at a later date bundled in pairs and shipped, with such duplica- tion or checking of count as might be supposed to afford guarantees to the agents of the Government and to the lessees that the interest of both were fairly treated. 602. There can be no doubt that if the number permitted to be killed had been fixed at an amount so low as to allow for exceptional and unavoi- dable natural causes ol' interference with seal life, and if it had been rearranged each year in conformity with the ascertained conditions, [killing might have been continued without general damage to the seal life of the Pribilof Islands, and very probably even with a continued gradual increase in numbers of seals resorting to the islands up to some unknown maximum poinl. Such results might have followed, notwithstanding the practical imperfection which clearly attached in execution to these theoretically appro- priate methods, and in spile of the important change from natural conditions which any disturbance in proportion of sexes involved, if the demands made . in the matter of annual take had been moderate ; but when the number lixed for killing resulted, as has been shown, in an average slaughter of over 103,000 seals, it bore so large a proportion to the entire number Of animals resorting to the islands as to lead necessarily in the long run to serious dimi- nution. This decrease continued, on (he whole, in an increasing ratio, being due not only to the actual number of seals slaughtered, but also to the numbers lost in various ways incidental to the methods of control and modus operandi on the islands, which loss, though formerly a mattei of minor im- portance (because counted against a large annual surplus), in the face of the greatly decreased numbers, became a very serious addition to the total of diminution. In short, from a transcendental point of view, (he methods pro- posed were appropriate an 1 even perfect, but in practical execution, and as jugded by the results of a series of years, they proved to be faulty injurious. The President. Will you he kind enough to remind us of the maximum annual numher of the slaughter underthe Russian rule? Mr. Carter. At first it was somewhere in the neighborhood of 30,000. In the last years of their occupation, it was increased to somewhere from 30,000 to 70,000, ; ''I ■ ^ ■ i . Vi i lffryi i Vh ii if iiii j i 284 ORAL ARGUMENT 16, i ;'. I ii D- 1» !l g ■ W Sir Charles Russell. You will find, sir, a table giving the figures at page 13"2 of the Hrilish (Commissioners report begin- ning in 1878 and going down to 1891. Mr. Phelps. That is more assumption. Mr. Carter. We do not concede that to be a correct state- ment. Sir Charles Russell. It purports to be a correct statement. Mr. Carter. It purports to be that; in fact it is not even approximately correct. The President. You do not know thai the Russian Government had the same rule as Ihc American Government had of fixing a limitation for the annual taking? Mr. Carter. It did have the same rule. The President. Th(^ same rule all the time? Mr. Carter. After the system was established of limiting the drafts, to the males. Senator Morgan. In 1847. Mr. Carter. The learned Arbitrators will perceive from those passages which 1 h^vc read from the British report that there is a full and un(jualilied concession that the methods thus emplo- odby the American (Jovernment on the islands arc perfect in theory, and llie only delect alleged in relation to them is in tlieir practical execu- tion; and the only particular here in which they mention a fault in the execution of those methods is that Ihey do not conline the draft to a sufficiently low limit. What that limit is they do not attempt to say ; hut the complaint they make of the execution in these me- thods is that too large a draft is drawn. My proposition is that there is a point at which it is perfectly safe to make a draft without any danger whatever to the herd. ' What that point may be is another quosticm. We say 100,000; and shall be able to make that good. 1 have gone thus far only upon facts which I conceive either to be admitted, or overwhelmingly established — established in such a manner that we may say they are beyond dispute. There are a good many other particulars here in which there is very conside- rable conflict in the evidence. We have our own assertions in respect to those points upon which this conflict exists; and we shall endeavor to satisfy the Arbitrators that our view is correct; but at this point I choose to say that in my view they are not ma- terial upon this question of property. 1 want to state a few of these points which 1 consider to be immaterial upon this question of property. I can argue this question of property without consi- dering any of these disputed propositions. Those things are more or less disputed ; and I do not base any part of my argument at present upon them. In the first place, it OF MR. CAMTKH. JHl ' is said that not so large a proportion as 75 per cent of the pelagic catch is females. If it were not any where near that figure — if it was even 20 per Cent, it would answer all flu^ purposes which I desire. Second. It is not agreed that so great a numher as one quarter or 28 per cent are wounded and are not recovered. Third. It is not agreed that females go out for food at great distances upon the sea. Indeed, I cannot say it is agreed upon the side of (ireal Britain that nursing females ever go out for food. Fourth. It is not agreed that coition lakes place on the land. They assert that it takes place elsewhere. It is quite immaterial where it takes place. Fifth. It is asserted on the part of (Jreat Britain that more or 3 , less commingling lakes place between the Russian and the Alaskan \ herds. *' There is no evidence that there is the slightest commingling; but as far as conjectures go, it is only to the effect that there may be a commingling of some few individuals — wholly unimportant. Sixth. It is not admitted on the part of Great Britain that the seals stay so long on the Pribilof Islands as the United Slates assert that they do. That again is of no importance, whether they stay there three or four or five months; if tiiey stay there long enough to submit themselves to human power, so that man can lake from them the annual increase without disturbing the stock, that answers all the purposes of my argument. Again, it is said that raids take place upon the islands and a point is made that a great many seals are lost, not by pelagic seal- ing, but by illegitimate raids upon the island by sealers which the United States does not protect against. It is immaterial whether there are or whether there are not for the purposes of my argument; but there arenol, in our view, any of any consequence. And again, what I have already said, it is alleged that a draft of 400000 young males is too large. We do not think it too large. But what if it is. We can find out the right number. Experience will tell us that ; and of course self-interest, the strongest motive operating upon naen, will insure our obedience to its dictates. Then again it is said that the lessees of these islands are care- less and negligent in the methods of taking these seals and sepa- rating them and driving them for slaughter, the assertion being that the drives are too long, that they are made in a way that is oppressive to the seals, that a good many of the seals driven and \ ' ""-- 'l|--H-i SBH 286 ORAL AIKiUMENT OF MH. CARTER which aro not fit for capture but turned aside to go back again, are so much injured that they never get back and are practically lost to the iierd. ^ We conceive all those statements arc unfounded; hut even if they were true, they would not be material. They would simply show we had been guilty of negligence there. There is nobody who IS under so strong a motive to practice diligence as we are, and It IS presumable certainly, if there are any neglects, that they will be ascertained and corrected. [The Tribunal thereupon adjourned until Friday, Aprii21, 1893 at 11 : 30 a. m. I , , ' ■^. -..,., ^■-.-..^. r f- | --|- |iii i ii rti fi , |i ' | i; ii rn r «ii i mi i iMi i tTiwiiiiiiiiiil i ii i B IiMV again, are tically lost •ut even if uld simply is nobody as we are, , that they 121,1893, TlllUTEENTII DAY. APRIL, 21- IHy.'J The Tribunal met pursuant to adjournment. The President. Mr. Carter, will you proveed? Mr. Carter. Mr. President, the principal part of my argument yesterday was devoted to a review of the questions of fact con- nected witli the nature and hahits of the fur-seal, and the modes by which they were pursued and captured; and that review of facts led to these conclusions as matters of fact: In the lirsl place that the United States in consequence of their proprietorship of the Pribilof Islands had a control over the seals which enabled thera to take the supcrlluous increase and supply it to the uses of the world; that that opportuniy il had always improved and still improves ; that no other nation, or the citizens of any other na- tion, have the power, or the ability, to do that thing; that the race of fur-seals could not maintain itself against unregulated and un- restricted attack; that it could be destroyed at a blow almost on the land, and it could also be destroyed, alilhough not so rapidly, on the sea; that all pelagic pursuit of the animal was necessarily destructive in its tendency, and if carried to any considerable extent would work an entire commercial extermination of the race in a comparatively short period of time; that it struck at once at the stock, and not at the increase; that its depredations were principally aimed at the females, and not at the superfluous males, and that no discrimination could be made. 1 am now to call attention to the incjuiry how the question of property !s affected by those facts in the light of the principles which 1 have endeavored to lay down respecting the institution of property and the grounds and reasons upon which it rests. I wish to apply those principles to the question of property in the fur-seals, and bring those principles to bear upon the conclusions of fact to which I yesterday arrived. Let me recall the main proposition early established in the course of my argument, and which I have endeavored to keep in view throughout, namely this : That the institution of property extends to all things which embrace these three conditions — • first; that they are objects of human desire, that is to say objects 4 ■m M 288 on A I, Anr.uMK.NT of u ility second; liuit ll..>y air «.xhauslil,lo, llmf is In say Ihn supply ol I ,om ih |,mit(Ml. thoro not |„m„k ("moukIi lor all. And tNn.tia llM.yaronipal,l..nr..xrl.isiv,.appn,pnalion. All things ol wiMcl, I .MS,. I „•,.,. cmi.iilious <-an l.o pnMli,-at..(l am prop,.rlv mi,! nolli.MK wl.i.l, ,|o..s „„l nail., all llioso conditions can bo ,•,.«» rdod as pntpcrly. ^ Co.worning llio first hvn of thoso conditions, no debate wbalo- ver IS n..c..ssary. Tb.. utilily of f|„. animal is adniilled. Tbal Ibeyar.. objects ..f cxlrcin.. Imman desire is conceded. Tbal Ihe s.i,.ply IS hm.le.l is also conceded. Tbe race is exbanslible Ib.'re ,s not enonKb for all. Tbe only question, tbcrefore, as to wbetber lb..y aro property or not, must turn upon tbe determina- lion ol Ibf. point iHu'lhvr or not th,',, are smcptiblr of rxchmvc npproi,r,at,nn. Tbal is tbe interostinK point in reference to tbe Muesl.on wbetber seals are properly or not. Are Ibey capable of exclusive approprnil ion by man.' In Ibo lirst place, we must bave a very clear perception of wbat IS meant by tbe l,.rm '• r.rrl„xir,- appropriation ". Wbat is .1 Ibat must be done Ibat an owimm- of a tbing may exclusively appropriate ,t.^ Is it necessary tbat tbe tbing .nust be actually in manu, as ,t were _ m tbe actual possession of tb.. owner so tbat no pers(m can fake it Irom bim wilbouf an exercise of forced I3 tfiatnecessary.or is sometliingsbortof tbat sufficient? In Ibe early agesofproperfy Ibat seems to bave b.-en necessary; and pronertv and ownersbip were in fbose early ages identical, or rnf r fbev were confoun.led. Tbere wore no recoguized riglits of ,„ertv except in respect to sucb property as tbe owner wa. in fife actual possession of. Tbe skins upon tbe back of tbe buntcr Ibo bow and arroxy wbicb be used in tbe cbaso, and tbe but' or the cave, wb.cb be inhabited, were all in bis actual possession or under his immediate power. They could not b.. taken from tlitm , and there were no subjects of property beyond those which could bo possessed in this fnll and complete manner. But we see that as the institution of property is developed that is no longer necessary. A man may own not only the half acre of ground which be tills, and winch bo can immediately defend, but he Tn 1^1' ^r^'""^ *''r-''"^' ""'''' ^y ^^^ ^''^'^^ title as he can own lie half acre; and in reference to all personal property tbe extent ol the ownership which is permitted to him is unlim! ited. He may not actually possess it. He may not be present to defend it ; and yet tbe law stamps bis personality upon it so tha It be comes Ins property, a part of him, an extension of his personality to that portion of tbe material world, so that when that thing which he thus owns is invaded his rights are touched L- ' '"^»feliB^> WW g< R W-aimM fl^ ^ wm say tho Jl. And, All tilings |)<'rly and regarded tc wluilo- '(I. Tluil That I he hanstihlo. lore, as to i't(>rmina- ■ exclusive ICO to Ihe :apal)lc of cplion of What is Inclusively ctiially m fr so that orco? Is 1 the early property lii 'r tliey I ipui'ty, lb in the ;^ hunter, the hut, (ssession, ken from ,0 defend se which t we see o hjnger ground I, hut he ts ho can leiiy, the unlim- prcsent lit so that of Ills lat when [touched, UK MU. C.AUTKH. 289 his personalily is touched. Here we see the dilVerenee helweeii tlie two conceplioiiH of possfssion and id' (>wncr\/ii/), originally closely identillcd. iiiseparahlt> from each oth(>r. as it were, con- founded together, hut with the progress of society and the devel- opment ol the institution of property, se|iaral(>d, and the conception of ownership, as tlistiiict from the necessity of possession fully recognized. I have many authorities to support tliii' hut I must avoid reading authorili(>s hecause it takes so nuich time. lUil to hriefly develo|) it, 1 may read one or two that are (|uil(> significant. I read from page H"! (tf the Argument of the Inited Slates an extract from the writings of a very distinguished Knglish jurist and writer upon general jurisprudence — Mr. Sliel(h)n .\mos. He touches upon this suhject : Tln> I'licl (ir iiislilulioii of owiiiTsliij) is siicli uii iiiilis|)i'iisni)l i)\MiL>rsiii|i uii Iho pail of iiidiviiliiai poisons, of lliosf lliiiif.'s which aie neodcd for tho siislciiauci' of physical life, hcconips iiicrcasinffly rorngni/ed as a jios- .siliility or iiocessily. One cd' l.hf niosi iiii|)oilaiil steps out of sava^jory iiilo civili/alioii is mariifd l)y Ihe fad that Ihe seciiiily of temirfi do[)ciids upon some furllior condition Ihan Iho uici'c cii'curnslancc of possession. Tht! use o( liie prodiiils of ilic cailii, and slilj nioro, Iho inamifacluie of Ihoni inio novo! substances, coiisisis, f,'oiiorally, of conliuuous processes oxionding over a ienglh of lime during which llio walclifiil atUjnlion of Iho worker cai> nly bo inlerrnillonlly (ixod upon all Ihe several points and slagt!s. Tho molhods of apricultnro and grazing, as well as Ihe siinplesl applications of Iho principle of division of labor, siinilailyi presuppose Iho lopeated absence of Iho farnior or mechanic fioni one part of his work, while he is bestowing undistraclod toil upon another part; or idso entire absorpliou in one class of work, coupled with a steady reliance llial anolher class of work, of equal importance lo himself, is Ihe oliject of corresponding exorlion on Iho piirl of others. In all these cases liie more fact of physical bidding or possi^ssitin, in Ihe narrowest souse, is no lest whalever of Ihe interests or claims of persons in the Ihings by which they are surrounded. The extract from a French writer Toullier which follows in a note is so long that I will not read it ; hut it is to the same effect of mark- ing the distinction hetwecn possession and ownership, and showing that ownership is a development in the course of civilization of tho institution of property, and that ownership at present no longer depends upon actual possession at all; it depends upon rights which the law gives. If the law chooses to stamp the personality of the owner upon any particular piece of property, however large or howeve: extended, whether it is in his possession, or out of his possession, then that object upon which the law thus stamps the quality of ownership, is the subject of exclusive appropriation in the law. 19 .:«Hii ■i-a !*■" 290 ORAL ARGUMENT I ! It is the law that does this. Originally property doponded much upon individual effort and the power of indivulual delence Now in the development of civilization it depends upon law; and whal'ever the law regards as the suhject of exclusive appropriation is to he regarded as properly provided it presents the other condi- tion"^ which 1 have mentioned. The inquiry is, therefore, under what circumstances and to wh'it extent will flie law stamp the qualitv of ownersphip upon things which either are not possesso.l, or cannot he actually possessed, hy any owner during a consider- able part of the time. Under what circumstances and to wiiat extent will the law assign to a man a title and defend it? That is the interesting question. . ,, , The best way to answer that is to see what the law actually does ; and we may take, in the first instance, the case of Innd. As I have already said, land may he owned by a private individual to any ex- tent He may own a province if he can acquire it . The law places no limit upon his acquisition and it will defend him iu that posses- sion. Why is it? As I have already shown the institution ot pro- perty docs liot depend upon anv arbitrary reasons, but upon great so- cial reasons and great social necessities; and, therefore, the answer to the question why the law allowsanextentof property to be owned by a man which 'he cannot by any possibility actually possess, must be found in some great social necessity; and it is that ne- cessity to which 1 have already alluded, namely, the demands ot civilization, which make it necessary that the sources of the Iriiits of the earth, audits productiveness, should he increased in order to accommodate the wants of the increasing population of mankind. No land will be cultivated unless you award to the individual tlie product of his labor in cultivating il. The motives of self interest are appealed to, and men are told : " You may have, and we will defend vour title to, as much land as you can acquire. lliat is^ the only way in which the earth would ever be cultivated. I hnt is the only way in which it is made to produce the enormous in- crease which it now produces; and although it is not itself capable of actual possession by the owner, yet in view of the prodigious advantageswhich are acquired by stamping the character ot owner- ship ui.on il, the law concedes that ownership, assigns the title to an individual, and protects and defends him in it The same is the case in reference to all movable property, all p.-oducts ot manufacture and of labor- agricultural implements and tools, goods of all descriptions. A man may own magazines full ot I hem which he cannot by any possibility, by his individual arm, protect and defend. AVhy is he permitted to do this: Because the wor d cannot otherwise have them. They are the price which the world mu't necessarily pay for these possessions, or otherwise it must 1 mm OF MR. CAHTKn. 291 ; doppiulcd al del'ence. in law; and ipropriation >thor condi- ifore, under stamp the I posses^o(l, a consider- nd to Aviiat I? That is tiially does; As I have il to any ex- elaw places that posses- jlion ofpro- pon great so- , the answer to be owned Uy possess, t is that ne- demands of of the fruits sed in order of mankind, dividual the f self interest and we will re. " That is ^^ated. That normous in- tself capable e prodigious ter of owner- igns (he title The same I pi-oduots of ts and tools, s full of them arm, protect ise the world ich the world i-wise it must do without them : and it cannot do without them and support the population which civilization brings upon the earth. Take the case of useful domesticanimals;the same thing is true. Man may own as many as he can acquire and breed; and they may roam over almost boundless areas, over his own property or the properly of the public and still his title is complete and perferl. In the barbaric ages a man could own but few and when the num- ber increased it was the property of the tribe; but (hat condition of things w(mld not support the demands of civilization. You must appeal to the cupidity of men and arouse them to labor and to ef- forts for the purpose of increasing the stock of domestic animals ; and therefore a title is awarded to as many as a man can bring into existence. The great prairies and wastes of the interior of the United States, and of large regions in South America are fed upon by countless herds, and yet the title of the owner to every one which he can identify J' distinct and absolute. That is for the same reason. You could not have them unless you gave that ownership. And society could not enjoy ihe henelit unless it paid this price. You will see that in all those cases the owner is enabled to pre- serve the principal thing without destroying it and yet produce a great increase for the use of mankind. The cultivator of land, the title to which is assigned to him, does not waste it. He do'cs not destroy it. lie does not convert it into a desolation, he does not extract its richness from it and then leave it incapable of fia'ther product. lie cultivates it. He manurefe it. He not only extracts a great product from it but he increases its ability for further pro- duction; and so also in regard to Ihe races of animals. The stock is not invaded so long as you allow individuals the ownership of whatever they are able to prodvu;e . They preserve the slock every where, and they increase overwhelmingly the product which can be aifovaed for the uses of mankind. Hot step for an instant to where this result cannol he acc(mi- plished ; and society at onces refuses to allow an individual pro[)erly in them; refuses to consider the things as the subjects of exclusive appropriation. Take the birds of the air, the fishes of the sea — wild animais generally. A man cannot by any exercise of his art or industry so deal with them as to furnish their increase for the usi^ of mankind without destroying the slock. lie cannot do il. He can only take them indiscriminately. I[e can practice no hus- bandry in relation to them; and if they maintain their existence under his attacks it is because nature has made such an enormous provision I hat they are practically inexhaustible, or because nature has furnished them with such facilities for escape that man can- not capture any considerable number of them. Consequently in w^ 292 OHAL AlU^UMENT reference to all of these wild animals where the award of owner- ship to an individual man would produce no great social blessing, in other words, where there ai-e no social reasons for awarding exclusive possession, an exclusive possession is not awarded, and, the thing is regai-ded as incapable of exclusive approj)riation. But, even in the case of wild animals, although the institution of property in respect to them would not accomplish any social good, would not prevent their extermination, still society resorts io the best means in its power to prevent their destruction, and it assumes a sort of custody or ownership over them by the eslablis- raent of what are called'" game laws ", more or less effective for preserving the wild races of animals, but still ineffective where the demand for them is ;so great and their facilities for escape so little that the ravages of man become destructive. There are some animals which lie near the boundary lines betwen the wild and tame and it is very interesting to see how the law deals with these, and how perfectly in accordance with the principle I am endeavoi-ing to sustain. Take the case of bees ; they are perfectly wild. Nothing can be wilder. Nevertheless man can induce them to return to a particular spot ; and in consec(uence of that can take from the bees their product, and can therefore increase the production of honey, — a most useful article — to au almost indefinite extent. If men were driven for their supply of honey to find the hives of wild bees in the forest their demand could never be supplied and the bees themselves would si)eedily be exterminated because the food which they eat would be taken away; but if you award a property in the bees to man, permit him to defend his' title to them, and to every swarm t!i;it forms itself in a hive, and, at the appropriate season leaves in order to create a new habitationloritself — ifyougivehim a title to that, enable him to practice a husbandry, allow him to consider as exclusively appropriated to himself what in its o ni nature is absolutely inca- pable of appropriation, — if the lav> will step to the aid of human infirmity and grant these rights — then you can have this product of honey multiplied to an indefinite extent. Society does it. It does it for that purpose. The same is true of the wild geese and swans. The breeding of these is an industry, to be sure, not carried on on so large a scale ; but it presents the same principles. If we were driven for our sup- ply of such birds to pursue the wild flocks with such means as are adapted for that purpose, the supply procurable would be extreme- ly small; but if man can so far reclaim them as to wont them to a particular place, take the annual increase from them and pre- serve tho stock, then without injuring the supply of the world you greatly multiply the product which is applicable to the uses of i.<»M ' w«>» » w'ii' ii it i iiiiw« i iil »i :'i»i».t i .i|| i «lii>i,*i < 'Wi»i'i l !- wm OF MR. CARTER. 293 man In other words, you bring in tho occasion upon which the law will lend its aid to man, and say that these things shall be dee- meed exclusively appropriated; and it docs so. The case of deer upon which I have already enlarged is the same. Pigeons the same. The reindeer of Lapland is another instance of an animal especially wild, but in which the law assigns to man a property interest and deems Ihem exclusive property although they wander over vast regions, and, instead of tollowing their owners, I believe the owners follow them. Sow we see the principle which lies at the foundation of the municipal law which I alluded to in the early part of my argument, the municipal law of all civilized nations concurring upon those points, and declaring in regard to every one of these animals com- monly designated as wild, that if man can so deal with them as to take their annual increase and preserve the stock then, notwilii- standing they may lly out of his possession at will, still, the law will regard them iis subjects of exclusive appropriation. Ihit the law does nolstop there. It is inleresling to observe that it will go to all extremities, wherever there is a social advantage to be gained and will allow a Ihing to bo the subject of property and to be regarded as the subject of exclusive ap|)ropriation, although it is absolutely intangible. Take patents i^)r useful inventions, products of the mind, and, originally, notthe subjects of properly at all. Ihit as society advances, as civilization developes, as the niu'd ot these products of tho mind increases, society piu'ceives that it cannot have Ihem unless it encourages the pro^luction of them; and there is no other way of encouraging the production except by awarding to the meritorious auth(»rs of them all the benelits of a property interest; and it does so. We have had for a very long series o years a property awarded in respect to inventions in the uselu arts. The principle of a monopoly, odious in general, is applied here; and society does not, or ralher will not slop there. Ihal extension of the rights of property to inventions in the usetiil ar s did not go so far as to give a right of properly in all the products of the mind. Literary works, books of every description, were still not the subject of property. They could be appropriated the world over, liy whomsoever pleased to appropriate them, and without giving'any ground of cimiplainl to the author; but all ot us understand how gradually and by degrees that has been consi- dered to be a wrong and not in accordance with the principles o natural law, not in accordance with the principles of justice; and so, after a while, the rights of authors in Iheir intellectual products were secured to them bv co|)yrightlaws which are enactiMl 1 sup- post ■' every civilized state; and now there is a tendency and dis- posiiion and determination, let me say, to carry it still turther. T -i 29i OHAL AHGUMKNT ' t I An inlornalional copyriglil, securing the Ijcnofits of ownership in the products of the mind all over the world is impatiently awaited and will probably, ere long, be enacted. This is the development of the institution of property. This is the development of the conception of ownership as distinguished from actual possession. Society will award this right of property, and will determine that things can be exclusively appropriated whenner there is a social good to be accomplished. It is thus that human society, proceeding step by step, and from age to age, I'ears its majestic arrangements, making provision for the satis- faction of every want of man, and every aspiration towards civili- zation, aiul shaping and conforming all its methods in accordance with the dictates of natural law. What is the general conclusion in respect to animals which 1 conceive to be established by this reasoning? It is tliis : That wherever an animal, although conmionly designated as wild, volun- tarily subjects itself to human power to such an extent as to enable particular n en, or a ])articular nation, to deal with that animal so as to take its annual increase and at the same time to preserve th(> slock, it is the subject of property. That proposition seems to me to be so reasonable up< u the mere statement that it ought to be allowed without argument; but I have endeavored to begin at the beginning, and to show that every ground and every reason which supports the award of property any where and to any extent, applies to that case, and makes the animal the subject of property. it only remains to apply that conclusion to the particular ani- mal about which our controversy is concerned-seals. I need not, of course, recapitulate again the facts. They are all fresh in your recollection. It is enough to say that they do submit themselves voluntarily to the power of man to such an extent as to enable the owners of the Pribylof Islands, to whose power they thus submit themselves, to take the superlluous annual increase without de- stroying the stock ; and that is the way and the only way in which the human race under civili/ed conditions can continue to enjoy the benefits of that blessing of Providence. Unless an award of property is made to the United States in that animal, or what is equivalent to it, the fate of the animal is already sealed. In looking at the meritorious features which the owners of tlie Pribylof Islands exhibit, and which constitute their title to this award of property, it may at first sight appear that they do not have the same sort of merit that the cultivator of the land has to the bushel of grain that he produces, or that the manufacturer of an agricultural implement has, which is in every part of it the fruit of liis labor; but when you look closely into the case yon will see that the merit of the owners of those islands is precisely of the OF MR. GAllTEH. 290 same character and goes to the same extent; and tliat the present existence of that herd is just as much due to a menlonous vo un- tarv exercise of etlort on the part of the owners ol those islands as anv product of mechanical industry is due to the workman who fashions it. This species of property it will bo remembered is culled by lilackstone property per industriam and very properly called so Now, what industry is exhibited by the owners of these islands to entille them to say that the seals are their property /..;• induslnam? They remove a population of hundreds of people at Kreat expense to those islands, feed them, keep them there to pro- tect these animals and their breeding places against all enemies. Unless that were done, marauders would swoop down upon those islands and destroy them at once. In the next place they do not kill the seals indiscriminately. They practice abstinence, self- denial. They might kill every animal as it arrives and put its skin on the market al once and get the full benefit ol it. Ihat is the temptation always to man, to take the utmost that he can and to lake it at once lor present enjoyment. But the owners o the Pribylof Islands practice a self-denial. They forego present enjoyment. They forbid themselves that enjoyment and they do it in'lho hope of obtaining a future and a larger good. 1 wish to dwell a moment upon the merits of that particular lea- ture of abstinence. 1 have given in the printed argument a mul- titude (d- citations which illustrate the merit ol this ([ualily ot abstinence as a foundation for property. Ml political economists for instance, in treating of the questior^ of interest, and the moral right which a man has to exact interest for the use of money, defend it upon this ground. Capital is lent and interest is taken upon it. What is capital? It is the fruit of saving. A man who hasproduccdsomething.insteadof spending it in luxuries, saves it; no man can save for himself alone. He saves for the whole world as well He saves something which will support productive industry, and the whole productive in.lustry of the world depends upon the savings of the world. If it was not for the practice ot this abstinence which leads to the accumulation ol wealth which may be employedfor the purpose of sustaining productive industry, productive industry woubd be impossible. ^ Mr Senior, in his Political Economy — he is an author ot reco- gnized authority - says (1 read from page 93 from the note : Hut althouL'h human labour and the afzeucy of nature, independently ol Ihaflnan. a.^ the pri.nary productive power., ^»'«V-«;,;:-;, « ^X"!" of a third productive principle to give them complete ellicient>. Uu mos hbo ous population inhahitinp the most fertile territory, if they devoted all lei hUm r to the production of immediate results and consumed Us produce as HaroJe would soon lind their utmost exertions insufficient to produceeven . the mere necessaries of existence, ^ ^ !j-i:^=^ 296 OHAI, AHGUMENT To the lliird principlo or instrument, of production, without which the two olliors are inonicioni, we siiall ;/ive the name of abstinence, a term by wliicli we express the conduct of a person wiio either abstains from the unproductive use of what he can command, or designedly prefers the production of remote to ttuit of immediate results. After dellning capital as " an article of wealth, the result of human exer- tion employed in (he [uoduction or dist' Ihution of wealth ", he goes on to say : " It is evideni that capital liuis dellnei. is not a simple productive instrument. It is in most cases the result of all the three productive instruments com- bined. Some natural agent must have all'orded the material; some delay of enjoyment must iji general have reserved it from unproductive use and some labor must in general have hcen employed to prejjare and preserve it. By the word abstinence we wish to express that mjcnt, distinct from labour and the tujcncii of nature, lite cnncarrence of which is nccrssnry to the existence of capital and which stands in the same relation to profit as labour docs to wages. Wliorovor you can find among- men a disposition lo forego immcdiale enjoymenl for tlie purpose of accomplishing a future good you tind a prime element of civilization, and it is that which society encourages, and \vt)rthily encourages, I have no lime lo read further from these cilations upon the merit of ahstinence ; but I especially commend them lo I he attention of the learned Arbitrators. That iswiuit is exhibited ui)on these Pribylof Islands. The United Slates, or its lessees, do not disturb these animals as they come. Tiiey invite them to come. They cherish them wmie they are thnre. They protect them against all other enemies. They care- fully encourage, so far as Ihey can, all the offices of reproduction, and. at the appropriate time they select from the supertluous males, that cannot do any good to the Jierd and may, under cer- tain circumstances, do injury to it, tin; entire annual increase of the animal and apply it to the pur|)oses of mankind; and, without the exercise of those qualities, as is perfectly plain, that henl would have been swept IVom existence half a centui-y ago, and the Pri- bylof Islands would have been in the same condition in respect to seals as the Falkland Islands, or the Masafuera Islands, and other localities, once the seats of mighty populations of these animals. It is upon these considerations that I base the position of the United States, that it has a right of property in those seals. There is no principle upon which the law of property rests which does not defend it, and there is no rule of the municipal law itself, so far as that law speaks, which does not support it. They defend it completely and absolutely; and when we step beyond the boundaries of municipal law lo the moral law, the law of na- ture, that law which is the foundation of international law, it also speaks with a concurring voice; and in whatever direction we pro- secute our researches wo find uniform support for grounds or reasons on this subject, they all concur and contribute to this one ■AS*.- ■■ I) lorogo OF MR. CARTER. 297 conclusion that upon every ground of right and reason, the pro- perty of the United States in that seal iierd is coniplolo and ab- solute, not only while it is upon the islands, bul nherevor il wan- ders, and protected by tlie safeguards which properly carries with it wherever it has a right to go. If there were anything which might be urged against this con- clusion, we might he disposed to hesitate. Hut what is there that can be urged against it. What right is there that can be set up against it? If tliere were anybody who could set up a right against this conclusion, a dillerent case would be made. If any man or set of men, or any nation, could say : " This conclusion of yours, plausible enough in itself, defensible enough in itself, nevertheless comes into collision with a right of ours, defensible upon like grounds, that is, mural grounds. " If that could be set U|), it would raise a doubt. Hut what is there? What right is there in these pelagic sealers — for theyareall we have to deal with — to contend against this conclusion? What is their right founded upon? As near as I can ascertain, it is a right to pursue the animal because it is a free swimming animal, in the first place, and because, in the next place, there is no power on the sea to prevent it. That does not suggest a principle of right at all, a right to pursue an animal because he swims freely in the sea — aright to destroy him on that account. What ground is that upon which to attempt to establish a right, I should like to know. Why should one be permitted to destroy a useful race of animals, a blessing of mankind, because they happen to move freely in the sea?, 1 cannot conceive that that suggests even the shadow of a right. The other ground asserted as a defense for pelagic sealing, namely, that however perfect the property right of the I'nited Sta- tes may be, they have no power to interfere with pelagic sealers on the high seas, is wholly untenable. It seems to amount to the solecism that there may be a right to do a wrong upon the sea! There is no more right to do a wrong upon the sea than there is upon the land. What is this right to carry on pelagic sealing? W'hat is this right to take these free swimming animals in the sea, mostly females heavy with young, or sucking their pups? What is that kind of a right? We have seen that it necessarily involves the des truction of the animal. How can you connect the notion of a right with that ? It is a right to sweep from the face of the earth and deprive mankind of the use of a useful race of animals. WMiat sort of an act is that, to destroy a useful race of animals? It is a crime; is it not? Mow else can it by any possibility be correctly described? It is a crime against nature. It is a defiance of natur- al law; and if it were committed within the boundaries of any civilized and Christian state, would lie punished as a crime by mu- if ."^w ORAL ARCUMENT :, .;■;!■ nicipal law. It has no cliaractorislic, anJ no quality, but that of a ri'lutr. What good does it acoomplish? Docs it give to man- kind a single seal which cannot be taken in a cheaper, and a better way? I have already shown that the entire product of this animal can be taken upon the islands by a less expensive method, and in a way such as to preserve the quality of the skins in a bettor manner. It does not do a single good to mankind. It is possible thai seals may be allorded at a less price for a time to the world l)y the practice of pelagic sealing. Of course if you can put upon the markel, in addition to what is taken upon the islands, another hundred thousand seals taken in the water, you can temporarily reduce the price; and, although the method of taking them is more expensive, the world may get them for a while at a less cost; but you are taking the stock, are you not? You are not taking the increase. The question, and the only question, is how the in- crease of the animal can be best taken for the purposes of man- kind. You have no right to have anything else. Anything else is destruction. Therefore these sealers are doing no good to mankind. They are doing no good to anybody. They are des- troying the occupations of the large number of manufacturers, of whom ti,ero are thousands, residing in Great Britain and whose occupali()n consists in manufactiu'ing the skins for market. Their occupation is taken away by it. They are doing injury in every direction. They arc doing no good to anyone, not even them- selves, for their own occupation is gone in a few years. Nature has so ordered it that any pursuit or occupation like this which consists simply in destroying one of the blessings of Providence, does no good, and nothing but evil, in any direction. We say we are taking the entiie product of this animal, furnishing it to the commerce of the world in the least expensive and in the best man- ner. Why do you not permit us to do it? Why break up this employment? There seems to be no good loason for it. Then again, as I have already said in an earlier part of my argument, one of the limitations to which property is subject, and especially pro- perty owned by nations, is a trust for the benefit of mankind. Those who have the custody of it and the management of it have a duty in respect to it. Indeed the whole subject of rights should be regarded as one dependent upon duties, rights spring- ing out of duties, rather than duties out of rights. It is the duty of the United States to cultivate that bounty of nature, the possession of which is thus assigned to them, and to make it pro- ductive for the purposes of the world. That is their duty. Why should they not be permitted to perform it? Can a reason be assigned why they shall not be permitted to perform that duty. They can not perform that duty, if the animal is destroyed. mm OF MR. CARTEn. 29!» lit that of e to nian- i a bettor lis animal d, and in I a l)ettcr s possible ihe world put upon 1, another iiporarily n is more cost; but iking the V the in- s of man- gling else I good to are dos- turers, of id whose t. Their ■ in every en them- Nature lis which ovidence, ie say we it to the best man- ic up this it. Then ment,one ially pro- mankind, ent of it of rights s spring- the duty ture, the ke it pro- y. Why eason be hat duty. ;d. Has Ihe United States the right to destroy that seal? It has the power. Has it the right? Has it the right to go upon those islands and club every seal to death and thus deprive tin; world of the bonelit of them? Certainly not. Have these pelagic sealers any better right to do that than the United States have? 1 have no doubt that if Ihe United Slates should wilfully say : "We will destroy that property. Although having the ability to preserve it, we will destroy this property " — and it were the case of a piece of properly the use of which was absolutely necessary lo mankind — if the seal contained some quality which was highly medicinal, a spe- cilic against certain diseases which aftlict the human race, and the possession of which was necessary in order to enable the human race to withstand such disease — the world would have a righl lo in- terfere, lake possession of those islands, and discharge those duties which the United States were betraying. What duty have these pelagic sealers in respect to these seals? They have none because tlicy cannot do anything but mischief with them. The United States has a duty. It is to cultivate that advantage which in the great partition among nations of the blessings of the earth has fal- len to their lot. It is the duty of the Unitecl States to preserve it, to cultivate it and to improve it. Shall they not have the power to do it? Is it not the duty of other nations and other men to abstain from interference? It seems to me that nothing can be plainer than that conclusion. There is no righl, therefore, that can be set up against it. Well, if there wcro something less than a ijight, if there were some inconvenience to which mankind were subjected, if pelagic seal- ing were prohibited and an exclusive properly interest awarded to the United States, we might hesitate; but there is not. Then.^ is no inconvenience even. There is indeed a suggestion on the partof Great Britain of an inconvenience in this particular. It is said that it is building up a monopoly for the United Slates, ena- bling them to gain a monopoly in the sealskins and thereby ac- quire a great prolit. Well, I admit that it is a monopoly. 'I'here is always a monopoly when one particular nation or particular men own an entire source of supply. It is not an absolute mono- poly, for there is a certain competition on the part of Russia atui Japan; but it is in the nature of a monopoly of course. Where there is an object in nature of which the supply is limited, if the source lies wholly Avithin the power of some particular nation it must necessarily have a monopoly. That is unavoidable. Hut it is a monopoly to the United States, of course, only because the United States bappens to have those particular islands. The pos- session of them, the sovereignty over them must be awarded to some nation, and therefore a monopoly is in a certain sense neces- \ tt "^ 300 OIIAI, AI\(iUMENT ;, ;; sary. Uul is if uii injurious monopoly, is it an objoclionablo mo- no[)oIy7 Not at ail. Senator Morgan. The islands vvoro bought chiefly on that account, \v('"c llicy not? Mr. Carter. I do not know that they wero. 1 hardly think they wore. Senator Morgan. What else was there? Mr. Carter. Thr those circumstances make, as they probably do nuike, a lai-ge profit, is there anything unfair or unjust about it? Taking into account what is paid to the Uni- ted Stales and the profits (d'Ihe lessees besides, all of which nuist be fairly regarded as the profits of the industry, there is of course a very large profit upon every skin that is scdd ; that is to say, the price of the skins may pay two or three times over for all the labor and all tlm expense which the gathering of the product costs. There is a very largo prolit. That goes to the United States, and to these lessees, is distributed among them. It is exacted, of course, from the citizens of the United States the same as it is from the rest of the world; but it goes to the United States and these lessees. What objection is there to that? Is that anything more tliana fair remuneration from this bounty of l*rovidencewhicli is placed in their custody and in their conti'ol, and for their labor, their efforts, and their exertions in preserving it and furnishing it for the use of mankind ? Of course not. It is perfectly fair. II may be the source of a prolit. So there are a thousand things in commerce which are the sources of prolfit to particular nalfons which have natural advantages over other nations in producing them. The advantage is not different in its nature in this case. In short it comes to this : That if is only by the exercise of the care, industry and self-denial on the part of the Government of the United Stales that the world can have this blessing, '•"he whole of it is thrown upon the world and the price is determined solely by the buyers and by what they see fit to give. If the; owners of the islands shtmid see fit to withhold from the market at any parti- cular time any considerable number of these skins, what would they do with them? Flow would they gain by that procedure at all? The next year, or the next — some time after that — they would be obliged to throw the part withheld upon the market and that would depress the market so that the loss they would incur in that w-ay would far exceed any gain that there was any promise of. No, there never can be any temptation for keeping any part of the product, except under very unusual circumstances, such as a decline in the demand owing to some special circumstance, which might induce the proprietors of the islands to say : " We 30-2 OH A I, AH(;UMKNT think we can do liollcr with the skins n(>xt year than this year. " Kill ill ^(MJt'ral tli<\v can reap no unliiir advantaj^d from the posses- sion ol' this iialnral monopoly. Tlicn! is aiiotlhT siif^j^t'slion I observe in the Case and Ai'mi- menl on the part of (ireal Hiitain. These meritorious grounds upon which liie title of the rniled States depends are. of course, perceived l»y the other side, and they seek to Jind something of a similar nature upon which to support their alleged right. What have they? I have discovered two things which they put forward or suggest. They recognize the natural advantage which the owners of the Islands have, owing to the seals suhmitling them- selves fully to the power of man there and the thing Ihey put against that in this : They say this seal has Iwo hahiltits. One is on these islands and the other is in the sea along the coast of British (loliim- hia. That is they seek to attach the seals to Hritish territory, Canadian territory, and say that they have a superi-' ^^nt also grounded upon favorahle conditions of locality, oi That does not amount to imough lo la" ...i.l. it is not an advantage which enables them to deal with the seals in any dilTe- rent way. They still cannot take them in any other way than hy this iudiscriminato pursuit which sacrifices males and females alili,. — Ol- iVmales to a larger extent than males, it does not enable them to practice a husbandry in respect to the animal, and to give to mankind the l)enetil of the increase without destroying the stock; and so it should be dismissed, even if it were true in fact. It is not true in fact. It is only a conjecture. The seal has no winter lialntat. He is on the move all the time; if he has a iuibitat along the coast of Hritish Columbia, he has the same habi- tat ab)iig the coast of tklifornia and Oregon, which is territory of the United Stales, and along a vast extent of this southern part of Alaskan territory and of the Aleutian Chain. A winter habitat along the coast of British Columbia, if it were anything but an imagination, is too slight to form any figure in this discussion. What is the other ground of merit? That is rather more sin- gular, as it seems to me. They say the seals consume along the shore of British Columbia a great many fish in the sea. The sug- gestion is, I suppose, that if the seals did not consume those lish, the inhabitants of those shoves would catch them and that, there- fore, the seals take away those fish from them ! In other words the intimation is : " Wc *"< ed these seals with our fish! " All I have to say in reply to that is that the fish which they consume, these squids, and crustaceans and cods, and what not, which these seals take arc not the property of Canada, or of Great Britain. They are the properly of mankind. Mankind feeds these seals. It is from mankind that they get their sustenance. They take it this yoar. I i\u' posHt's ' iiiid Ardu- ous grniiihls ', ol' conrst', riiothing ol' a J- lit. VVhaf put lor wan ■ wliicli I lie lining (lieiii- y put af;ninst (' is on these •itish (loliiin- ish territory, "• 'oiit also It is not an in any dilTe- way than hy and lemales It (loos not ! animal, and it destroying were true in The seal has ; if he has a e same hahi- i territory of thern part of inter hahilat hing hut an liscussion. icr more sin- aie along' the sa. The sug- le those lisli, 1 that, there- other words r fish ! " All liey consume, , which these ji-eat Britain. r. these seals. They take it nnal increase of this animal and furnish it to the world if you will only cultivate it. It is your duty to do so, and when you do that, wa^cl the h'-netit of these seals, and we^'et it in the ..niy way which it can he afforded to us. Therefore, the arji^ument that the; lish which these seals consume are fish belonging to British (lolunihia and that, therefore, the inhahitanls of that region have an e(iuity of a superior character in the seal entirely disappears. There is neither fact nor reason to support it. In reaching these conclusions as to properly in seals, it will be observed that I rely on no disputed fads; upon no facts which are in serious di)»pute. I have said so at least. My assertion in that particular may not be accepted; but I feel quite sure that when the members of this Tribunal come to consider the facts, I hey will agree that all the facts I rely upon, are placed beyond dispute. They are conceded, or placed beyond dispute by the evidence; but I could really make the whole argument upon a much narrower ground of fact and keep myself within what is absolutely indis- putable. Here is the report of the joint Commissioners; it will be found at page 309 of the Case of the United States, and contains the follow- ing : 5. We are in Ihorougli a;?reemeiit that for industrial as well as for other obvious reasons ilis incumbent upon all nations, and particularly upon those having direct commercial interests in fur-seals, to provide for their proper protection and preservation. 6. Our joinland several investigations have led us to certain conclusions, in the llrst place, in regard to the facts of seal life, including? bolh the exist- ing conditions and their causes; and in the second place, in regard to such remedies as may be necessary to secure the fur-seal against depletion or commercial extermination. 7. We find that since the Alaska purchase a marived diminution in the number of seals on and habilually resorting to the Prybilof Islands has taken place ; that it has been cumulative in effect, and that it is the result of exces- sive killing by man. The President. Is that in accordance with what you have said? 1 1! 4^ t I. I In , 5 , .,i - •■. -i ■ ill :m OKAL AHCiUMENT I tliink you slated lliat diminution has boon taking place since ■1884 or at least since tiie Alaska purchase, which was in 1867. Mr. Carter. This report does not slate any diminution at suc- cessive periods; nor does it state the beginning of the diminution. The President. Your statement I believe is that the draft of one hundred thousand seals a year would not alfect the condition of the herd? Mr. Carter. That is my statement. The President. Thai draft was observed for several years after iiie Alaska purchase. Mr. Carter. Yes. ii will be observed that there was a prodi- gious taking just prior to the establishment of regulations by the Tnited States which diminished the numbers of the herd a great deal. That diminution began then in 1869; but unless that had been increased by pelagic sealing ! have m* doubt that the draft of one hundred thousand a year couhl be maintained. Hut I lake the statement of these Commissioners that " since tlie Alaska purchase a marked diminution in the number of seals on and habitually resorting to the Pribylof Islands has taken place; that it has been cumulative in its elTect and that it is the result of exces- sive killing by man. " I take that linding to mean this : That this herd of seals is at the present time in the course of extermi- nation, and that that extermination is due to killing by the hand of man. I take those two facts and that is all lluit is nccessarv for the pui-pose of establishing a full foundation for the property argument. It follows from thai fact that fur-seals must perish unless their kil- ling h vcqulated ; and it follows from that that all nnreijulated killing hwrong. It follows, i say, from that that the extermination of the seals which is in progress is due to tinrcgulated killing. 1 do not say now ivhere unregulated. It follows that all unt'cgukitfd killing is wnuig, because it leads to destruction. We know that there is a mode ol killing by which the race can be preserved and tlun is by conhning it to the I'jybilof Islands; and we know that sealing upon the high seas cannot be regulated. All uiiregulal"d sealing ■ is wrong. Sealing upon t he high seas is, and must be, unreguhUc.d, because no discrimination is possible between the stock and the increase; and. more than that, the attack of the pelagic sealers is principally iqnm the stock, and )wt upon the increase, for wherever a single female is killed the stock is struck directly. Therefore, slanding upon the mere finding of this joint report there is fact enough upon which all the conclusions of my argu- ment may be sustained. There are some technical objections that are urged against the award of property. It is said, you cannot identify these seals. 1 ft ij '' *fe«i l W 8 iwwafi > feaB i»a » «afe <» :iin! i iMi i ill i ij » )MMW I frMW»iaLjyuu:j:[yjiii l ^ ng place since •as in 1867. inution at suc- he diminution, at the draft of I the condition LM'ai years after V was a prodi- ilaiions by the e lierd a ji^reat inless that had tliat the (h-aft d. But I lake ce the Alaska seals on and n place ; that it jsult of exces- n this : That se of extermi- l;- by the hand 5 necessary for the property nless their kil- fiilff fed killing lination of the inj^. I do not >if/.atfdk\]l'mg V that there is 3d and thai is w that sealing iilal"d sealing , imregiihiUul, stock and the igic sealers is for wherever s joint report of my argu- h1 against the • these seals. OK MR. CARTER. 30;i The seals found upon the Pribilof Islands may perhaps come from the Commander Islands. As 1 have already said, that is founded upon conjecture, in dealing with a large subject like this the mere possible circumstance that there might be a few individuals intermingling is of no conse([uence at all. No judicial Tribunal would take notice of it at all. The great fact is obvious, and I think admitted, that the great bulk of the herd which goes on the Northwest Coast of America and between the Prybilof Islands and the stale of California has its breeding place at llie Prybilof Islands; and every individual of it at sonu'lime or other, visits those islands and submits itself to the power of man there. There is another tinngthat is suggested and that is if a pro- perty right should be allowed in these animals to Ihe I'nited States it might interfere and prevent the enjoyment by the Indians along the coast af an immemorial right and privilege of theirs to hunt seals for their own purposes. Thai right of the Indians, such as it is, deserves very respectful consideration. It stands upon something in the nature of moral grounds, I admit. They have something of a better claim than these pelagic sealers. There is some reason for saying that you should not deprive these Indians wlio have lived along that coast always and who have from time immemoral supported themselves to a greater or less extent by going out in their canoes in the sea and spearing these seals, of that mode of sustaining existence. II might subject them to starvation. You must support I hem at least if you do deprive them of it. The force of these, considerations 1 have no disposition to disguise. But what is the nature of that case. That is a pursuit of the animals, not for Ihe purpose of commerce, but by barbarians — for they are such — for their own existence. It is a pursuit which of itself makes an insignificant attack upon the herd. It is a pursuit which, considering the magnitude of that herd and Ihe size which it would reach if left to its natural enemies it is a pursuit which I have classilied and consider among the natural enomios of the herd just as much as the killer whaie. it is isisignificanl in amount. It does not atl'cct the si/e of the herd; it does not ail'ect any of the con- ditions w'luch I have considered as neces:iirv for Ihe preserva- tion of the existence of the herd. It is, theref';'\ , a pursuit which might be tolerated without danger to the !ii;nl. Therefore, it is quite possible 'hat the Tnited States should have ^ a property interest in the seals, subject, however, fo the right of the Indians to pursue them in the r.ianner in which they were accustomed to so in former times; that is to say, for their own purposes, and in canoes from the shore. That is a barbaric pursuit. That is an instance which with the Government of the 20 T-J*!** \-m 30G ORAL ARGUMENT mI I'nitod States is quite familiar, of the survival of barbaric con- ditions down into civili/od life. It is a condition with which the Government of Great Britain is also perfectly familiar, for it hf.s to deal with it in many quarters of the globe. So long as the Indians exist, and until they arc provided with other means of subsistence, they should be allowed to pursue their natural means of subsistence; and this is one. It is not one which would threaten or endanger the existence of the seals at all; and it cannot be supposed that the United States would ever undertake to interfere with these Indians so as to deprive them of their rights. But there is one limitation to that. This is a survival of bar- baric conditions, ft is a barbaric pursuit, and being a barbaric pursuit, does not endanger the existence of the herd, because it is not carried to sufficient extent. There is not a population suffi- cient dependent upon it; liut i( will no! M' , with seals. That is a dealing of civilized nations with seals. Barbaric na- tions have rights which civili/ed nations have not, in certain [larti- culai's. As I have said niiiny times in the course of my iirgument, the attack bybarbarians upon the friiils of the earth is limited, con- fined, and generally not destructive; but when civilization makes its attack upon them, its methods are perfectly deslriiclive, unless those ap|)liances are made use of which civilizalion supplies, and by which that destruction may be avoided. Therefore there is no diflicully in aw^arding to the United States a right of property subjecl lo the right of the Indians lo capture in the manner in which I hey were formerly accustomed to do before the use of ves- sels for pelagic sealing, but not to the right to go out in pelagic sealing vessels. The President. Do you not think it is very difficult lo draw a legal line of iimilation between what an Indian is allowed to do for himself, and what he may be allowed or permilled to do in the service of an European or civilized man? Mr. Carter. There are always practical difficulties connected with Ihe dealings with barbaric tribes. There ari^ilways greater or less difliciillies; but there are no insuperable difficulties con necl(Ml with il. The President. Do you find there is a sabstanlial legal dilfer- encc between the two cases? Mr. Carter. There is a substantial dilTerence. If ■MbMBi m i lmwmn- ro i *ii»jm i niij i .imnim!E j i i i iBBM:i>uiMBi i iU> | fliQiuiwa rharic con- 1 which the iliar, for it So long as ithor means leir natural liicli would all; and it underlalvO im of their ival of har- a harharic ooausc it is iifion suffi- of that piir- II will not them up. in of fu'-n." 'i- I'ic nat[iM> , larbaric iia- rlain [)arti- ai'gu incut, milf'd, con- lion uuikes live, unless pplios, and there is no 3f property manner in use of ves- in pelagic t to draw a ed to do for do in the connected ays greater ulties con cgal dilfer- The President. Between the case of an Indian lishing on his own account and an Indian fishing on the account of a civilized man Mr. Carter. I think there is a very substantial one. The President. A substantial legal dilferencc? Mr. Carter. Yes ; I 'hink so. When I speak of legal, I mean moral or international grounds. There is no shar[) distinction. The President. Moral and international arc* two ditferent fields of discussion, I think, though they may often join. Mr. Carter. Not so different as may he supposed. Tlie President. They are not contrary. Mr. Carter. Not so different as may be supposed. International law rests upon natural law, and natural law is all moral, The law of nature is all moral; and it is a great part of international law. If the dictates of the law of nature are not repelled by any actiuil usage of men, then they must be allow 'd to have their effect, and the dictates of the law of nature are the dictates of international law. To say that they are moral does not distinguish them at all from such as are legal. We have sharp distinctions, of course, in municipal law between what is moral and what is legal, but in internalional law whatever relates to actual human concerns, the property of nations, and actual alfairs, whatever is dictated in res- pect to these by the law of nature, is not only the moral law, but the b^gal law also. There is the broailest sort of difference between the Iwo cases. The Indian goes out and attacks and kijls the seals for the |)nrpose of sustaining himself, making a skin which he is going to wear, and getting food to eat. Lord Hannen. Is it to be confined to merely their sustenance? Were Ihey not the only suppliers of the skins in the lirst instance? They barlei-cMl the skins, for there was no other source until the Pribylof Islands were discovered. That trading so frequently re- ferred to was a trading in tliese, amongst other skins. Mr. Carter. That is true; they were original traders. They were made use of for the purposes of commerce. Hut that was comnieroe. Lord Hannen. Yes; carried on by the natives. Mr. Carter. Hut it was commerce. They were sup|)lying the commerce of the world. They were not furnishing themselves with clothing. They were not furnishing themselves with seals for food. The President. That you consider was allowed at the time, and would not be allowed now. Mr. Carter. Ueiore the HussiauL^ discovered these regions, they were inhabited by Indians, and those Indians did pursue the f fr< 308 ORAL ARGUMENT seals in that way. Tlial is pursuit by barbarians without mcl hod ; without niaUinp: any oH'ort to preserve the slock, destructive, of course, in its ciiaracter, but not of sufficient extent to endanger the existence of the race of the animal. As I have said, it is only when the world makes its attack through commerce that the exist- ence of the race of animals is in danger. It is only then. When that begins, then the danger begins. Of course at the iirst begin- ning of it, when the Russians discovered this country, and traded with these Indians and got these skins, that was the beginning of un attack by the world generally upon this stock of seals. That was the beginning of an attack by civilization through commerce, which is its great instrumentality. Of course, at that very early period, when the draft was very small, it did not threaten the exist- ence of the stock at all; but by and by it did. When the existence of the stock is threatened, what are you to do? That i'^' the (jueslion. The Pi J-'-^i't^. That is a point of fact which may create a dif- ference in rig cording to your view? Mr. Carter. i'^ distinction which I mean to draw is between a resort to a pursuit of these seals for the purposes of personal use of the people, such as they were in the habit of making before they were discovered by civilized man for tiie purpose of sujjplying the world with these skins. That is the distinction. The first pur- suit, which is confined to the barbarian, is not destructive of the stock. Nor is the other, as long as it is limited to certain very narrow proportions and conditions; but when it is increased, then it does threaten tne stock. What must you do then? You must adopt those measures which are necessary to preserve the stock. And what are the measures which society always employs for that purpose? I have detailed them already. It is by award- ing the institution of property. Must society withhold its effort? Must it forbear to employ those agencies because here are a few hundred Indians in existence wiio may have some rights in refer- ence fo them? No; they arc not to be considered, surely. W^e cannot allow this herd of seals to be extinguished just for the pur- pose of accommodating a few hundred Indians vipon that coast. Surely not. The President. It may be that the civilized fishermen are not mon^ than a few hundreds also. The number of men employed is not absolutely a foundation of legal discrimination or legal dill'er- ence? Mr. Carter. You mean that those that are employed on the Pribylof Islands are a few hundreds ? The President. No ; I mean pelagic sealing may be carried on by a few hundred or a few thousand Indians ; but that is another K^J,^^ m m s mm^imsKr ■ OF Mil. CARTKR. 309 lit melliod ; I'uclivo. of ) <.'nilaiigor , it is only t the oxist- n. When lirsl bogin- aiul traded 'ginning of a Is. That commerce, very early 1 the oxist- are you to 'oato a dif- is between 'rsonal use )ot'oro they i[) lying the 1 lirst pur- ivo of the rtain very ased, then You must the stock, iiploys lor by award- its elfort? are a lew s in refer- rely. We 3r the pur- hat coast. len are not in ployed is pgal dill'er- [ed on the carried on is another matter. The dilTerence you make is whether they are Indians or civilized? Mr. Carter. Yes. The President. Suppose the Indians engage in commerce also, selling or bartering the skins. You would allow that also? Mr. Carter. VVhen it is not destructive. The President. It is a question of proportion, a (lueslion of measure, with you? Mr. Carter. If it is destructive, then it is not to be allowed. They have no right to destroy this race of animals. The President. lu order to give you satisfaction, the question would be to know what limits the pelagic sealing may bo carried to without being destructive? Mr. Carter. Yes; that is practically the (juestion; if you can say that pelagic sealing can be carried on without being destructive. ' The President. Hy Iiulians, at any rate? Mr. Carter. By Indians in their canoes, in the way in which it was originally carried on. That docs not threaten the existenc of the herd. The President. That is a natural limitation. Mr. Garter. It is possible to do this. It would be possible for the people, now engaged in pelagic sealing, for instance to say : The Indians are permitted to engage in pelagic sealing. We are prevented from doing it. We will just employ these Indians. The President. That is the difficult point. It was the point I just hinted at. | Mr. Carter. Yes; they might say, " We will employ those Indians. We will employ them to do the work which we are pro- hibited from doing. " The Indians are perfect sealers. They can destroy this race as quickly as anybody else, if you hire them to go out there as pelagic sealers. I assume that cannot be done. The principles, the grounds ami reasons, upon which 1 rest the right of property of the United States, proceed upon the assump- tion that the blessings of Providence are to be preserved and made continually useful to man; and whatever the mode of attack which is made upon them which is in violation of that principle must be suppressed. Senator Morgan. If you will allow me, Mr. Carter, I under- stand your position to be this, and if I am mistaken I hope you wil! correct me : that the United Stales Government, being the owner of these seals, has a right to make an indulgence, an exception, in favor of those Indian tribes becauseof their dependent condition, so long as they conduct that sealing in accord'vncc with their orig- inal customs ? Mr. Carter. Yes ...;-;„. ^ -;,.;-^,^v,.-/^ ;,::'.-.;.,/.■ '+1* 310 ORAL ARGUMENT Senator Morgan. I wish to suggest that both firoat Britain and Canada and llie United Slates have found it necessary, in order to estahli>h and promote agriculture, ooninierce, the peace of the whole country, in respect to the Indian tribes, to deprive them, at their will, of all of what are called theirnatural rights of hunting and wandering — their nomadic wanderings — and conline them to reservations. All of Ihese countries have found it absolutely necessary to do so, until it is a matter of universally admitted law throughout the continent of North America, until you get to iMexico, at least — and even in Mexico — that the Indians shall be doall with in such way as the supreme power chooses to do in their general pubhc policies, giving them in the United States, and doubtless in Canada, when they are tried in the courts, the privi- leges and benelits of the provisions of the constitution, which operate in favor of personal rights of liberty, property, etc; but neither of these Governments has ever hesitated, on any occasion since they have had power to enforce their laws against the Indians, to confine them to reservations, cut them off from hunting on the plains the wild bufialo. Ihe deer and all other wild game, and absolutely to enclose them within bounds, which they are not permitted to go beyond at all. Mr. Carter. Oh yes ; that is perfectly well established in the practice of nations. The President. Is it in Canada? Mr. Carter. 1 do not know how it is in Canada. Mr. Tapper. Since the President refers to me, 1 will say that there is a distinction in all those cases. Forinstance. on the plain, where the Covernment, representing the Crown, makes this arran- gement by and with the consent of the various tribes, thev come then under treaty rights made with the Crown. They have 'certain privileges, and .oming under the direction of the Crown, they submit themselves to the care of the (Jovernment. The (iovern- ment provides for them, giving them their rations and sujiplies ; and for the sake of those and for the support, they submit them- selves to the regulations under the Government. But on the Pacific coast the Indians are practically as free as the whites. Senator Morgan. I speak, Mr. President, if you will allow me to explain my statements, of the power exercised. If it is exercised in a single instance by Canada or the United States, of course the whole power is necessarily implied. When we speak of a treaty with an Indian tribe, we do not speak in the sense of treating or making an engagement with a foreign govern- ment or foreign power. The Induins are entirely within the limits and dominion of the respective governments in America. A treaty that is spoken of is a mere agreement for the purpose of ''■*.... ? ! 3S»affia.eaikgi4m tmmm ■■ m OF MB. CARTER. 3H Britain and ', in order y. peace of rive them, of hunling- nline liiem absolutely nil ted law to Mexico, II be dealt lo in their tales, and the privi- 3n, which , etc; but y occasion le Indians, ing on the game, and sy are not led ii Ihe II say Ihat the plain, his arran- hey come ve certain own, they e (iovern- supplies ; mit them- II I on the liites. allow me If it is ed States, ►Vhen we ak in the n govern- /ithin the America, lurpose of pacifying them, and not based upon Ibe idea that Ihey have any sovereign right to treat at all. They are tiie subjects of the general local government, and more particularly so, 1 think, than can be found any where else in the world. That is the universal history of the North American continent. In the decisions in the United States, the Indians are called the wards of the nations ; and the United States are their guardian. Sir John Thompson. I might say, in addition to what Mr. Tup- per has said, that the only penalty for roaming contrary to the provisiims of the treaty is the withholding of the benelits of the treaty from the Indians. There is no law in any part of the coun- try to prevent an Indian going where he pleases. In justice to Mr. Carter' s position, perhaps I ought to add this : that in establish- ing close seasons for fishing and hunting, the Indian is included as well as the white; but an exception is made in favor of such as may take by fishing and hunting for his own sustenance. Mr. Carter. The survival of barbaric conditions in civilized life is a perfectly familiar problem, both to Great Britain and the United States, in many parts of the world. It presents its diflicul- ties, no doubt. They are dealt with as they can best be dealt with. It has been stated, and sometimes with truth, that at times cruelty has been shown to the native inhabitants, and that at other times perhaps too much generosity is shown to them. The problem is a diflicult one; but the difliculty does not dispense with the necessity of a proper dealing with it. How was it to be dealt with? Here were thousands and thousands of Indians in the western part of the United States, living upon the bultalo, living upon herds of buffalo that roamed over a boundless area of territory; and here was a vast population pressing in that direction all the time. What arc vou to do? Are you lo station an army along the boundary, along the frontier, and say that civilization shall not go on beyond this point? Are you to protect these Indians and the bulTalo in their wild condition forever, and say that this part of the fruitful earth shall remain forever a forest and a waste? Is that what you are to do? Is that the dictate of civilization? No; you cannot do it if you would. Civilization will press forward and will drive out the Indian in some way or other. The only thing you can do is to deal with them gently and gradually, and protect the barbarian from violence and secure him a subsistence as best you can. Lord Hannen. Was there ever any law in the United States for the preservation of the bison except in the Yellowstone Park? Mr. Carter. No; mme that 1 am aware of. I think not. Senator Morgan. No ; there never was any law of that sort except in that park. Mr. Carter. No; none of that kind. The consequence was 312 OHAL AHGUMKNT ir thai tlin Tnitod Stales iu dealing with that problom did it hy (rcaly; but wlial arc Irealii's Ijolwccii a poworl'iil nation aixl tlu-so tribes ot Indians? They are not capable of j-iving consent. They do not deserve tlu; name of tr(>aties. Tlie> arc called so; but what is the ellect of Iheni? You lake away from the Indian his huntin- gruuiul. ^ou have to sup[.orl him by giving him rations; and I suppose the same thing is done in Canada. That is what it comes to. I hey oceu|)y territory which is filled to produce prodi'-ious quanlilies of wheat. ""' That earth must be cultivated. The Indian will not do it If you lake It from Ihem, what do you do? You give them rations I hat IS what Ihey do in Canada. Thai is what they do in the Uni- ted Stales. Thai is what they do wherever this pnlblom of dealing with barbaru; tribes is treated with generosity and wilh justice • but the march of civilization, the interests of civili/alion and the demands of civilization cannot be made to wait upon Ihe destinies or demands of these few barbarians. That cannot be done ; and when the question comes whether they arc to be permitted lo ex- terminate a race of animals like Ihe seal, not for Ihe purpose of supplying themselves, but because they are the em|)loyes (.f men who are prohibiled from doing it, of course you mustprohibitlhem as well. The President. That is I heir livelihood also ? Mr. Carter. The livelihood of the Indians. They have a right to pursue their livelihood as long as it is confined U, getting the seal lor the purpose of clothing for their bodies or for meat ; but when they want to engage in commerce and clothe themselves in broad doth and fill themselves with rum in addition to their origi- nal wants, a dillerenl problem is presented. Hut pralically it would be of no account. The only wav in which ihey pursue, or ever have pursued the seals is in single boats going out from the shore. They can take a few seals that approach the shore rather more closely. The pelagic sealing that threatens the existence of the herd , consists in a large vessel provided With perhaps a do/en or lifteen or more boats and a very large crew, that follows the seals olf ai sea it may be hundreds of miles, capable of standing any weather and continuing on the sea for months. It follows them up, puts out its boats wherever it sees a number sufficient to engage attention, and slaughters them in that way. Thai is what threatens the existence of the herd. If sealing in boats from Ihe shore were permitted, probably it would never occasion any serious danger. No boat can go out, of course and stay over night. They cannot go more than a few miles be- cause they must come back again before dark. It is but a few seals they can take ; and that docs not threaten the existence of the herd. j-i4fc.. " '' gSmSiRi'^-- - MR. r-AFlTEIl. '■itf- il l>y li-ealy; tlicso tribes Tlioy do not what is the lis hunting lions; and 1 lat it conies prorJi'^nons i>t do il. If cm rations. in the IJni- II of (h'aling itii jnslico ; on and the K' destinies done ; and itled to ex- l)iir()(>se of fcs of men jliihitthem avo a riglil 5^otting the moat ; but msolvos in heir origi- ily way in igle boats, : approach '■ threatens provided ory lai'ge ndreds of im the sea horever it ters them the herd. y it would of course, miles, be- fcw seals the herd. The attack which civilization makes upon it, and which it has no right to make in a deslnictive way, is this sealing by vess(>ls with crews aiul boats which go on long voyages. It is that which is destructive. The answer to this suggestion of the right (d' the Indians lo make their attack upon the seals is this; that it does not create any serious practical diflicjilty in relation to the problem. Of course it is not to be supposed that the I'nited Slates are going to take away from that people their means of subsistence, at least without supplying them in turn. Their history abundantly repels any suggestion of that sort. They have never intlicted any such barbarity upon them. Their right might be declared t(» be subject to that of the Indians. The President. Is the sealing on the coast carried on by In- dians from the United States or only by Indians from (lanada? Mr. Carter. There is no sealing by boats on the coast from the American territory, I think ; because there are no Indians, I think, on American soil who are given to that ])ursuit. Mr. Justice Harlan. When you speak of boats you mean canoes? The President. Yes; I understand that. Mr. Carter. I am told there is one tribe of Imlians, at least, the Makah Indians, who are on Aniei'ican territory, who do practice sealing in boats to a greater or less extent. There may be others. l^et me say in concluding my argument upon this question of properly — and 1 am about to conclude il now, that I have endeavored to put the case of the (lovernment of the I'nited States up(m no selfish reasons or grounds, nime personal to themselves, but upon grounds which interest alike the whole world. I have not put this property in seals as the peculiar pro- perty of the United States, in the sellish sense of property, but as a property in which all mankind is interested; all mankind hav- ing a right to enjoy, all mankind seeking to enjoy; but absolute- ly limited in its enjoyment to one method, and that is by employ- ing the instrumentality of the United States in this husbandry upon the Pribilof Islands. The President. You do not state that it is absolute properly. Howewer, you state that it is property in the sense of article 6, do you? Mr. Carter. It is properly in the sense that they are en- titled to the exclusive custody and management of it and to prevent any interference with it from aay quarter; but when you say property in the sense of beneficial interest, enjoyment, then I speak of the interest of the whole world. The President. So according to your view, in this number nii OnAI, ARdLMKNT live. " Has the United Slalos any liglil, and if so, what right «)f proporly " propci'ly iiorc would he qualified properly. Mr. Carter. I shall not leave that question indisposed of. It does not come up at this point in my argument, hut if the learned iMvsidenl is disposed and will give me a distinct question — The President. If it comes in at another time, I shall he satisfied. Mr. Carter. It will come in lime. We ask for nothing here which is not equally for the inleresi of all nations. We ask for nothing thai is going to injure anyhody. We ask only for that which eiiahles the world to enjoy the henefits of this property; and to grant what we ask takes nothing away from anybody, not even from fhese pelagic sealers, e.xcept the pursuit of an occu- pation of douhtful profit for a few years. In the allotment he- Iweon the diU'erenl nations of the world, of the various advan- tages which the earlh alTords, this particular one happens to fall to Ihe I'niled Slates. It is her duty to improve it and make it productive. The performance of that duly will indeed he pro- fitahle lo hei'self, and rightfully so; and nohody ought to grudge her that. liul it will he equally advantageous to the whole world, aiul all she asks is for an international Tribunal, repre- senting the whole world, to award her the i)rivilege of doing il. She has done it in the past. She is capable of doing il in the future, if permitted to do il by the abstinence of the rest of mankind from a destructive pursuit of the animal. That is all she asks. Assuming the right of property in this herd to be establish- ed in the United States, the next question is what right she has of defending and protecting herself in the enjoyment of that properly. Hut, as I am to deal shortly with another aspect of the question of properly, namely, with the industry that is established on the islands, irrespective of any right of pr(q)erty in the seals themselves, 1 shall ])ostpone a discussion of the rights of protection and defence which a properly interest would give until I have concluded what I have to say upon that aspect of the question which relates to ihe industry carried on upon the islands. [The Tribunal thereupon look a recess.] [The Tribunal resumed at 2.10 p. m.] Mr. Carter. There is one extract from the Report of the British Commissioners which I intended to read in the course of my argument, showing, that a husbandry is possible with the seals, and that it is carried on on the Pribilof Islands. It is an extract ^^!Sff;^?B^!^Sf property ion of the ty interest ' upon that carried on the British irsc of my I the seals, an extract OF MR. CARTER. 315 from the Report of the Hritish Commissioners, on page i.'iO, beyond the sections. It is a newspaper extract (reading) : Tlio Anicriciiii ftir-soal li.ul a uairow pscapo of siiariiif; tlip fatti of its soiil- linrn kiiuired. In a paper dealing willi this subject, a writer ^'ives the foUo- winj{ arconnt : — " Early in this century the seals were almost exteiininatod in many of the islands in the North Pacilic, and were Ihcie as inlliU'ssly slan^'iiteied as they were in the Bass Straits and the New Zealand coast. The extermination was, as it were, commeiued, had not Hnssia liist and the United Slates afterwards leased the exclusive rifiht of killing seals on the Prihylof Islands— a famous sealing place — to a sinj-'le Comjiany, by which means the seals were saved, as the Company had an interest in keeping up the supply of furs. " This single experiment, the writer states, has proved conclusively that fur- seals can be farmed as easily as sheep, atid that sealing should not be thrown open without restrictions. Seals are a property the Stale should Jealously guard. On the two Pribylolf Islands it is computed that ilOOOOt) seals resoit annually. These islands, fiom the value sf the fur-seal, were discovered in the year 1786, when the slaughter commenced, and was prosecuted wilhoul ,?; until the year 18;t!t, when the number had been so reduced tbul the business threaten- ed to be entirely destroyed within a few years. The President. Do you know where that paper comes from? Mr. Carter. The substance of it is a newspaper extract. Sir Richard Webster. It is referred to in the letter on page 38. Senator Morgan. And is a reply to a circular from the (Jover- nor of Tasmania. The President. That is a British official — Mr. Martin — is it not? Does not the British Government endorse his views? Sir Richard Webster. On page 154 you will find that the British Commissioner sent a circular of inquiry. The President. But that implies no approbation of the views — it is merely for the purpose of inquiry? Mr. Carter. It is a paper presented by the British Commis- sioner as having been received from persons familiar with the subject. (Reading again :) The destruction was then stopped until 184;!, when it was gradually resu- med, though, instead of the indiscriminate slaughter which had before been permitted, only the young males (i years old) were allowed to be killed. The rookeries continued to increase in size until 18j7. The President. All Ih.i is in agreementwith yourown conten- tion, Mr. Carter. Mr. Carter. The general tendency of it is in accordance with our evidence, but it must not be taken as minutely in accordance with our contention. 1 read these extracts f f . t e purpose of showing the conclusions of the compiler of this inio/iaation. (Rea- ding again :) The Company who leased the right of sealing in these islands were restricted "^^'^UEw''^-. P*5^^-^-«? ^^ - m OHAL ARfiUMKNT alioiil Iho year 18(50 to ."iOOOO soal-skiiis annually. From 1821 to 18.19, 7.">8:>()2 I'nr-scals wfic killed, ami :)7:2HUV I'nini ISi.'i to l«(li. From annllier aulhorily, Mr. Ilittcl. I find llial \viit«n liic IJnilfil Slates (iovcrnuifiil took pos- session .'t' llie islands in 1 8(17 several American linns took possession, and tlio wholesale slauf-'liler of seals lie^'.in afresh, (n 18118 not less than 2()00()() seals were killed, ami for 180".) it is said the i.iimlii'r wasnot far helowllOOOOO. The IJniled Stales' government, fearing tiieir total exiinclion lease the sole rig'it of seal-llshiiiH on tiiese islands to one (Irm, restricting Iheallowed numlierto inO(MH). From what he had I n aide to lay before the Fisheries Hoard, no time should ho lost in at once takintf steps to proti'ct the seal lisheries in Hass Sliails. Wherever proper reslric lion has heen inlroduced a most va- lualde industry has heen started in connection with tln^ seal industry, and, instead of the three years, as has been proposed hy tiiis Hoard, he siroiiKly recommended live years for the close season, and if ;it thai time the seals have increased Ihe (iovernment might he recommended to lease llie islands, allowing only a certain ininiherto he taken annually and on no account to al- low the females to be killed. I como now to llio oIIkm- bcanrli of tlio qjiostion of property, nnmely, liu' |»rop(>ily wliu-ji llu^ I'Tiitod Stales (ioveninieiil asserts in the imhislri/ carried on hy llieni on the I'rihilof Islands, irres- pective of liie qneslion wlietluT they Inive property in the seals or not. S-rppowing, for Ihe purpose of argument, that my conclusions w< re not ;«.dmilted that Ihe I'nited Stales have jiproperty in the seals lliemselves, or the seal herd which frequent the Islands, they assert thiil they have a pro|ierly interest in the industry which is there carried on of such a chiiraeler that they are justilied in pro- tecting and defending it against any wrongful invasion. Now, for tin' purpose of the argument upon that (|uestion, I employ the same hasis of fad which I have employed in discussing llie o' lion of property in the seals. And, hriefly, I assume as facts assertions, which are suhstanlially undisputed. That this indua..y was established originally hy Russia, and that she employed care, labor and devoted expense tc its establishment, carrying thither a large number of native Aleutians from the Aleutian Islands, for the purpose of guarding the seals and carrying on the business of selecting the superflmms increase in order to supply the market; that no interference was made with Hnssia in the enjoyment of that industry during the entire period of her occupation, down to the time when the Islands passed into the possession of the United States; that the United States continued to carry on that industry also without interference until pelagic sealing was introduced; that the elfects of that industry were in all respects benelicial, not only to the United States, but also to the M'hole world; and that sub- stantially it succeeded in securing the entire annual increase of those animals and devoting it to the purposes of commerce without diminishing the stock; and that by means of this industry the stock of seals has been actually preserved. And to show the beneficial ^ tywa w w H '^' ^ ' ^\}*smm,MTumi'f^mmm»smtsiJdsm^mmy>ii^&i^ ^^^.r 182) to 18.19, From iirinllier int'iit took pos- fHsion, ami tlio nil 2()0()()() seals w :i()00()(>. The i the sole ri^'il iwt'd niimlifito lies Hoard, no •al (isliciics ill I'll a most va- iiidiislry, and, il, ho slioiiKly lime the si-als isi' llii' islands, account lo al- of property, nioiil asserts ilands, iiTOS- tho seals or eoiiclnsions iperly in the Isliuuls, they try whlcli is ilied in pro- I. Now, lor employ the \^ the (I' s I'iicts Ihis in(iua.,.y ployed care, yiuji; thither Islands, lor business of the market ; ment of that lown to the F the United hat industry oduced; that ial, not only id that sub- incrcas? of irce without ,ry the stock le beneficial OF MR. CAIITEH. Mt results ill that particular, we have only to compare the condition of the Prihiluf Islands with lluit of the islands in the Southern Ocean — the I'alkland Islands, and others where the race has hetui entirely destroyed. And I mi{j;hl add that it is <|uite possible that with the prohibition of pelagic sealing', and the establishment of similar rules and regulations (»ver the sealinj; g^rounds of the Sou- thern Seas for the preservation of the animals, those islands might be stock('d anew, and similar advantages might he enjoyeil in many |)urts of the world to lliose now produced by the industry on the Pribilof Islands. This result might be brought about u..J the benelit to mankind greatly increased. The President. Do you mean that that should bo a matter for international ccmsideration, or that il should be ell'ectod by muni- cipal laws ? Mr. Carter. If il were recognized that the seals were pro[>erty, there would then be an inducement to nations holding sealing grounds, pelagic sealing being prohibited, to cause those grounds lo be protected and regulations might be made for the prosecution of the industry. The President. It might be a result of the present Arbitration. Mr. Carter. It might be, and that is one of the circumstances which should engage the attention of the Tribunal, It is not only a (piestion of preserving the seals which now exist, but of making the natural resources of the earth available for their possibilities. Now that industi-y established and curried on by Russia formerly, and now carried on by the United Mates is unquestionably a full and perfect right. That is not disputed.' It is a lawful occupa- tion. It interferes with the rights of no one else. It is useful to the persons who carry it on, and useful to the whole world, and it has a further utility in the sonse that it preserves these races of animals r.nd applies the benelit lo mankind, while at the same time, preserving the stock. In its several aspects, therelore, it is a full and perfect right; and that right is not disputed. What is asserted against il, is, that the United States have no right to prevent other industries which come in conflict with it. It is said on the part of Great Britain : " We also have an industry in these seals and our industry is a right just as much as yours is a right. " Now of course the validity of that argument rests upon the question wether it is a rif//it; we are thus again brought face to face with the question whether this practice is a, right. If it is a wrong, then of course there is no defence for it. Upon what ground can it be defended as a right? What moral reasons support it ? 1 know of none ; I hear of none suggested, I hear of no consideration in the nature of a moral right suggested as a foundation upon which that pelagic sealing '"ii^''ikfh:~K'b^-:., 318 ORAL AHGUMEiNT p'*;j*;il F ,1 I J w I ,' < I 4 -C" i 1 1 . : ! I can be sustaincl. The only grounds I hear monlioned are two — first, that the seal is a free swimmin;/ ani'/ial; and, secondly, that the seas are free, and there is no municipal power which can restrain the pursuit which is thus carried on on the high seas. Thaf assertion, thi refore, rests upon the assumption I hat there is di)i(jhl to destroy any frce-sivimmbuj animal in the sea. However great a blessing, however useful that animal may be, it is said by the pelagic sealers " we have a right to destroy it, a right to pursue it, although that pursuit involves its destruction. " But they have no more right to destroy a free-swimming animal than any" other animal, either by practices on the sea, or by practices on the land. If you are taking only the increase, you may have a right, but if you are destroying the race, then your right is gone. To be sure, there are many free-swimming animals in the sea — th, herring, the cod, the menhaden, the mackerel -— the taking of which must necessarily be in lescriminate. You cannot take them in any other way ; you cannot otherwise appropriate them to the uses of mankind. Mankind must seek them in that way, or do without them. And therefore the pursuit of those ani- mals on the high seas is right enough. And in this connection I have observed that nature, in the enormous provision which she makes, of Ihese animals, i,upplies barriers against their destruc- tion hy man. But the seal is an animal which can be taken and applied to Ihe uses of mankind without diminishing the stock, aud consequently you have no right to adopt another mode of pursuit which sweeps these animals from existence. The President. Is tliere no other mode regulated by usage to prevent the cxhauslion of the stock ? 1 mean are there not certain rules in regard to other species besides the seal? Mr. Carter. I know of no oiher in respect to these other classes of lishes in the high seas that have been or can be applied for tlie |)urpose of preventing their destruction. The President. Do you contend that selection confers the right of |)i'operty? Mr. Carter. Yes; where selection is possible and n<^cessary as in Ihe case of the seal. The President. It is one of the bases of tiie right of property. Mr. Carter. With the seal indiscriminate slaughter is des- tructive, and therefore not right, provided there is a moile not involving destruction by which you can select the victims for slaughter. If there are some men who, in consequence of the natural advantages they enjoy, have such a control over the ani- mal that they can make the selection, that const-f'jtes their right of property. Thus, the United States have indi^ putably the right of property in respect of the seals of the Pribilof Islands, as long mam ioned are two — and, secondly, >\vor which can the high seas, )n I hat there is : sea. However le, it is said by right to pursue But they have than any other ces on the land, ve a right, hut t is gone. To I in the sea — ;! — the h'king au cannot talvC ipropriate them m in that way, it of those ani- this connection sion which she t their destruc- in he taken and ling the stock, lotlier mode of ce. . . ted by usage to lere not certain to these other can be applied >n confers the uuil n<'cessary . jht of property, aighter is des- is a mode not he victims for equence of the 1 over the ani- ites their right itably the right stands, as long OF Mil. CARTER. 319 as they are on the iclands. But I speak also of their right of pro- perty in them on the high seas outside their jurisdiction. Senator Morgan. If the I'nited Stales Irive a right of property as full as can be enjoyed, they have it on the land. Is that right lost on the high seas ? Mr. Carter. That depends upon this (yMisrIeration — the fact that they have a control and possession ot them on the land, and thatlhat control and possession gives Ihem Ihe power of taking the entire benelit of the animal for the use of mankind witlumt diminishing the stock is a ground why the) should be awarded a property m the animal, not only while he is on land, but when he is out at sea. Senator Morgan. My proposition is that thos^e conditions to which you refer d(» establish the right of properly; but does that right of properly follow the migration? Mr. Carter. After you hive once es'^-blished your right of properly on the land, Ihe considerations whicli I have adverted to, establish it on the hig;i seas. I assert the doctrine of a qualitied properly in the case of animals commonly designated as wild, such as bees, wi'd geese, swans and deer; but although the pro- perty of man in these creatures is qualilied, yet whenever Ihey have the insliuct of return as evidenced by the habit of returning — as long as that h.ibit is preserved — the |)roperty subsists, and it subsists as well when the aninuils are out of the possession of the owner, as when they are in his possession. Senator Morgan. The difticulty is in the meaning of a word. I think that when a property has been acquired in an animal or any other lliing that is capable of enjoyment, in the sense in which you have presented it, th? property may be lost when it is out of your possession. But wl'.ile it is in your possession your property is (|uulilied. Mr. Carter. Oh yes; it may be lost by abandoning its home, but while the instinct of return remains, the properly subsists. Now, in reference to the seal, it always retains the instirct to return. The President. In every indivi^Tual of the herd? Mr. Carter. In every individual of the herd; vliat instinct is never lost. Now I say wo are met face to face with the question whether this pelagic sealing is a / .; ' t or not. There cannot be a right to destroy any free-swimm't'g animal, if there is another way by which he can be taken v il'out destruction. 1 next have to say that what constitutes onv> element of the property of the United Slates in the seals and of their property interest in this industry, is that they are performing a duly to mankind. They are cultivating an advantage which, in the division of the blessings ■-'*«ae'^a!»^< }itff 320 URAL ARGUMENT of the earth, lias fallen to them. Has any nation the power of preserving this i-acc of seals for the use of all mankind by pelagic sealing, and is there any corresponding duty on the part of any nation to prosecute pelagic sealing? None whatever; it is mere destruction. Now the other ground on which Great Britain seeks to mainlain this practice is that the seas are free. They say :" You cannot interfere on the high seas with us and our industry, which is a rightful one. That does not follow. Whether a thing is right or not depends upon its moral qualities and, not upon the ability to punish it. A great many wrong things may be done on the sea, because there is no municipal law lf» prevent litem, but that does not give any semblance of right to such proceedings. The distinction between right and wrong is not abolished on the sea; it goes all over the world, and there is no part of the sea which is not subject to the dominion of law. The- refore, to say that " the seas are free for this practice because you cannot punish us for it ", is to make an assertion that has no foundation whatever in moral or legal reason. Of course in saying that the practice of pelagic sealing is wrong, we do not insist that the Inited States have, for that reason alone, a right to repress it. The United States do not assume the office of redress- ing wrongs all over the W(,rl(l ; but what they do say is that where theii- right of proj)erty in an industry is injured by an act on the high seas which is in itself a wrong, then they have a right to interfere and defend themselves against that wrong. Now there are two foundations upon which the right to this industry carried on at the I'ribilof Islands is maintained by the United States, and they have quite a close resemblance to each other and yet are in certain particulars distinct. The first is that that industry is made possible in conse(|uence of a particular natui'al advantage which attaches to the soil of the United States at this spot, and that that advantage consists in the fact that the race of seals regularly resort thithei' and spend a considerable [tortion of their life there, enabling man to carry on a husbandry in Ihem. This right is therefore founded on a natural advantage peculiar to the spot, and is as much a right of tiie nation as any other. The other contention is that it is a national industry which cannot be Itrokcn up by the wrongful attacks of individuals of other nations. 1 call it a natio- ««/ industry for this reason; it is an industry which ref|iiires the establishment of rides and regulations for its conduct, which rules and regulations cannot l)e carried into effect except by the autho- rity of a nation. Senator Morgan. Do you apply that doctrine to all the fur fish- eries in the world? , le power of J by polagic part of any ; it is mere n seeks to say :" You ir industry, Whether a es and, not tilings may V U) prevent ;^hl to sucli rong is not there is no law. The- ice l)ecause that has no f course in , we do not e, a right to 3 of redress- that where 1 act on the e a right to Now there stry cari'ied States, and d yet are in stry is made itage which nd tliat tluit ihirly resort re, enabling is therefore t, and is as (intention is I up by the II it a natio- requires the which rules ' the autho- Ihe fur lish- ■•>iS! 1 OF MR. CAKTER. 321 Mr. Carter. Well, I am not making that point now, but only as to the Pribilof Islands. In similar conditions 1 think it would apply Senator Morgan. You mean that the seals cannot be preserved without national authority. Mr. Carter. That is the very point; I call it a national industry because it requires national protection. The President. You would make a difference between domes- ticated seals and wild seals, as between wild bees and domesti- cated bees? You would say that the Pribilof Island seals are domesticated seals? Mr. Carter. Well, I have considered the question of property in the seals themselves and have done with it. I am now upon th.> question of the right of the United Slates to carry on this mdustry even if they had no property in the seals; and I have stated a means by which this industry can be carried on there and which makes it a rightful industry. Now, where a nation has created an industry by the aid of rules and regulations which it has esta- blished; where it has brought in a population to engage in that mdustry, so that the destruction of that industry would deprive them of their means of subsistence, I maintain tliat the citizens of another nation cannot, for their own temporary benefit, come in and break up that industry. Let me illustrate that. I may assume that there are races of fishes which regularly visit a shore. They may not be the property of the owners of that shore, they may not be the property of the nation which holds dominion 'over that shore; nevertheless, it is possible by making rules and regulations to create an industry in them; and when that is done there is a thing, a creation, which that nation has a right to maintain against the attacks of the people of other nations. The President. That would reate a right of protection over the species. Mr. Carter. That is what 1 am arguing; it would give a right of protection ; the right of protection stands upon the industry which is created. Writers upon the law of property tel! us that property has many forms. Sometimes it is the right to tlie exclu- sive use and disposition of a thing ; sometimes it may consist of a mere hen on a thing; sometimes it may be a right to go upon the land of another and do something there; and sometimes it is what jurists call jio-a mow facultalis; but it a right, and in the nature of property also. Now I wish to give some illustrati(nis which will show what I mean by the right to carry on this iiulustry. These Pribilof Islands are one instance, and there are ollicrs. In our Case are given many instances, where people having a right ot legistation have passed laws for the purpose of protecting fisheries and other industries against invasion. There are many 21 f V 1 322 ORAL ARGUMENT diircronl instances oi' lliat sort. There are many instances where Great Britain has passed hiws of that character. I proceed upon the assumption that lawful and useful industries can he created and preserved by the exercise of national authority in that way. Whether this authority is susceptible of being asserted against the citizens of other nations, or only against the citizens of the na- tions by which the laws were passed, is another question, but the policy is in all instances the same. Now I have instanced the Prib- ilof Islands. Another instance is the fisheries on tiie banks of Newfoundland. Great Britain asserted at an early period a right to the fisheries there, because she had established an indnstr which had been maintained by her subjects, who resorted thither for the purpose of catching lish. When the United States gained their independence, they claimed to share in these fisheries. They said : " We went there and established that fishery; and now, ha- ving gained our independance we have a right to share in the ben- efits to be derived from it". That right was denied, and the at- tempt to assert it was unsuccessful; but it was admitted by both parties, admitted that it was a national industry, although the United States contended that they had a right to participate in it. And there are numerous other cases where laws have been passed by Groat Britain for the protection of her fisheries. The President. Are these rights asserted now? Mr. Carter. Well, I do not think they are practically asserted now as being a property entirely independent of other nations. But they were originally, and they tend to illustrate my argument. They illustrate the idea. The correspondance is printed in our Argument. The President. Yes, but the exclusive right was not main- tained as a right. Mr. Carter. It was maintained as a right, and — Mr. Phelps, flic whole correspondence is in the printed Argu- ment of the Case. The President. Your argument goes to show tliat the right extends beyond the limits of the islands. Mr. Carter. Yes; we have the right to carry on the industry upon the islands; and, having that right, when the carrying on of the industry is prevented by wrongful acts in other places, we have the right to protect ourselves by repressing those acts. Now the pearl fisheries of Ceylon are another instance, as also tiie coral- beds in certain parts of the world which are protected by the laws of the nations that are situated contiguous to them, and in some instances for the benefit of the citizens of those nations only, n the American Case we have referred to a great number of instances where laws have been passed to establish and preserve, govern '•^-'^'mm«^?i^mmmms^^sm'^ MBMI ■> tnces where ■oceod upon 1 1)0 created II that way. rled against IS of the na- ion, hilt the 3cdthoPrih- le banks of oda right to (istr which ithcr for the i;ained their ries. They id now, ha- in the hcn- and the at- ted by both Ithough the cipate in it. been passed illy asserted her nations. -f argument, nted in our i not main- ■inted Argu- at the right the industry rrying on of • places, we 1 acts. Now so tiie coral- by the laws md in some ns only, m of instances irve, govern OK MR. GARTER. and regulate, fisheries and other pursuits carried on on Ihe high seas. Now the general answer to that which Great Britain makes is, that these laws, whether the laws of sovereign states, or of their colonial dependencies, are designed to operate only on their own citizens, and arc not aimed at the citizens of other nations, and that they do not, theref(U*e, furnish any support to the asser- tion that they may be operative against the citizens of other nations. It is oaid that they are only designed to regulate the conduct of citizens of the nations by whom they are made. I am not going to go through the particular instances in which these regulations have been adopted, for it would occupy altogether too much time. In general, I suppose that though these regulations were drawn in terms limited to the citizens of the nations by wiiom they are passed, yet in reality they are designed to be operative upon citizens of all nations; otherwise they would serve only to facilitate a fuller enjoyment of the benefits of the industry by the citizens of other nations, without the competition and rivalry of the nation by whom they are passed; which I do not suppose is their intent. But there are several instances of rules and laws respecting the practice of these industries on the high seas which are admitted by the counsel for Great Britain to be operative upon the citizens of other nations. Turning to the Argument on the part of Great Britain, page 39, we find this : It is next submitted — Tliat international law recof^nizes the right of a State to acquire certain portions of the waters of the sea and of the soil under the sea, and to include them within the territory of Ihe Stale. This alfords a legitimate explanation of the cases of foreign extra-terri- torial fishery laws cited by tiip United States, quite apart from any question whether they apply to foreigners or not. But it alfords no justification for, nor are they analogous to, the Alaskan Seal Statute, as is contended by the United States. The territory of the nation extends to low water mark; but certain por- tions of the sea may be added to the dominion. For example, the sea which lies inler fauces tenm, and, in certain exceptional cases, parts of the sea not lying inter fauces terrce. The claim applies strictly to the soil under the sea. Such claim may be legitimately made to oyster beds, pearl fisheries, and coral reefs; and, in the same way, mines within the territory may be worked out under the sea below low-watermark. Isolated portions of the high sea cannot be taken by a nation unless the bed on which they rest can he physically occupied in a manner analogous to the occupation of land. These principles, though they explain legitimately all the examples of foreign laws dwelt Oi: by the United Slates, show also that no right to, or on, so vast ail area of the high sea as Behring Sea can be acquired. Nor lias any such claim evee been made. Now, we have it admitted here that it is competent to parti- ■3; 324 ORAL ARGUMENT cular nations to assert a right of properly in oyster-beds, pearl- lishery beds, and coral-reef beds, and to assert a right of property, although lliey are out on the high seas beyond the territorial tln-ee-milc limit, and to assert that right against the citizens of other nations. They are obliged to make that admission, for it is impossible to examine the various statutes which have been passed by independent stales upon these particular subjects, without recognizing the fact that they are designed to apply to the citizens of all nations, and are actually enforced against the citizens of all nations. What is the assertion there? Why, that the slate has, by the operation of its rules and regulations, created a national industry in respect to those fisheries, oysters, pearls, and coral, which it is juslitied in protecting against invasion by the citizens of other nations, although these hsheries are situate on the high seas. The President. That does not seem to have been the contention. It was founded rather upon the right of occupation. Mr. Carter. Well, 1 am going to discuss the ground upon which they put it, but they assert that there is a right to protect against the invasion of other nations products outside the three- mile limit. 1 know they seek to base thai upon the right of prop- erty. I contend that a nation has a right to establish an industry of that sort and protect it against the invasion of other nations. They undertake to place a limitation upon it, and to suggest reasons upon which the right is founded. 1 am going to inquire into the validity of these reasons. They say it is 'A property right to the bottom, and that it exists wherever the bottom may be occupii'd, and does not exist where the bottom cannot be occupied. Well, that amounts to this, then, that wherever a nation can occupy the bottom, although oulside the territorial limits, it may rightfully occupy it and exclude other nations from it. How can you occupy the bottom of the sea? Well, you can occupy it only by taking such possession as is possible. You can buoy it where you can reach the bottom, and establish a force and exclude the citizens of other nations from it; and that is all the occupation of the bottom that you can elTect. The assertion, then, on the part of my learned friends is, that wherever you can take such possession of the bottom, you can exclude other nations from it. Now that goes much fur- ther than the Argument of the United States, no part of which goes to support a general right to occupy the sea outside the three- mile limit. We do not assert any such right, nor do we suppose that any such right exists ; but that is their assertion ; and if it be true, you can take possession of thebollonofthesea anywhere ; and if there is any particular pieceof coast off Great Britain twenty miles away where the bottom can be easilly reached, and which is a particularly ItSiSESliSP )cds, pearl- )f property, ! territorial citizens of on, for it is have been r subjects, to apply to against tbe Why, that ms, created pearls, and iion by the situate on contention. ound upon . to protect ! the three- lit of prop- in industry er nations, est reasons ire into the ght to the 3 occupied, ed. Well, occupy the J rightfully y^ou occupy ^ by taking re you can ! citizens of the bottom my learned i\\Q, bottom, much fur- t of which ; the three- ve suppose if it be true, and if there miles away Kirticularly OF MR. GARTER. 325 favorable place for carrying on a cod fishery or a herring fishery, you can take possession of it and e.\cludc the rest of mankind from it. If this bottom theory, upon which they put tiiemselves, has any validity or foundation, you can do that, if the riglit to establish tbe industry rest upon an ability to occupy the bottom, then you can establish one wherever you can reach bottom; and if you can establish it in one place, you can establish it in another. I do not suppose it is possible to defend any right like that over the high seas. I do not suppose it is possible to defend any such right as that over the fisheries of the seas. There must be some other prin- ciple that may be called into play. These regulations are found in the cases of oyster beds, coral beds, beds where the pearl fishery is carried on, beds which are found in a certain proximity to the coast of a country, and which can be worked more conveniently by the citizens of that country than any other. We find in practice that the industries are confined to such instances, and in those instances we find rules and regulatitms passed for the purpose of securing the products of the seas, and designed to make them more useful. Those are the cases in which it can be done, and in those cases it is perfectly justifiable. It is where there is a natural advantage, within a certain proximity to the coast c; a particular nation, which it can turn to account better than the citizens of any other nation, and in respect to which it enjoys peculiar advantages growing out of its proximity, and where, if it is permitted to establish and carry out a system of national regulation, it may furnish a regular, constant supply of a certain product of the seas, for the uses of mankind; which pro- duct, if it were thrown open to the whole world, would be destroyed. That is reasonable. That stands upon the principles which I have been asserting. That is a solid foundation; but it does not rest upon any notion of a right of occupying the bottom. It rests upon the'|fact that here is a natural advantage, a peculiar locality offe- ring particular advantages, which, if improved, will lead to the prosecution of a useful and profitable industry, useful to the na- tion, and useful to the world. Under those circumstances, if one nation is permitted to cul- tivate undisturbed that natural advantage, free from the invasion of others, that industry can be profitably carri* d on, but if all come in, it is broken up. In such cases, therefore, the nation which enjoys this advantage says to other nations, rightfully : " Here is an ad/antage which Providence has placed within our reach, rather than in yours. ^V^^ can turn it to account ; you cannot. We can use it so thtt it ay produce its natural advantages. In order to do that, it a squires regulation. It must not be used at 326 OHAI, ARGUMENT all limos. It must bo iillovvod certain periods of rosl. Tlio ani- mals which form the basis of it are al one lime of the year breed- ing, and should not be disturbed. There are times when the industry should be pursued ; times when the industry should be closed. All that cannot be accomplished without national regula- tion. We have done that. We have created an industry. There is a particular poptilation of ours devoted to the work. Now, you must let us do it. It is not reasonable, it is not fair, it is not just, Ihat you should come in here after wo have created this advantage and despoil it, for a mere temporary gain. You willnot come habitually; you will only come occasionally; and you will interfere only for the purpose of ruining us, without doing any advantage to yourselves. " Senator Morgan. Mr. (Sartor, in point of fact, arc these Ceylon pearl lisheries and the coral lisheries of whicli you spoke held subject to the right of free navigation to commerce. Mr. Carter. So I understand. I do not understand that commerce can be prohibited over them. Oh no; surely not. There is no occasion to prohibit commerce. It is only the regu- lation of the industry that is insisted upon. So 1 have to say that upon conceded principles there is a right in a nation to protect an industry for which it has natural advan- tages, and which it can create, preserve, and improve by means of rules and regulations which it alone has the power to adopt and to enforce. It is conceded that this may be done in the cases to which I refer of the oyster beds, the pearl beds, and the coral beds, no matter how far they are out from land, wherever they are. If Ihey arc so situated as to be the special advantage of a partic- ular power, and thai particular power chooses to improve that natural advantage by the creation of an industry, it establishes a right which it can defend from invasion by the citizens of other nations. The explanation of that which is attempted to be made in the printed argument of the other side is, that it depends upon an ability lo occupy the bottom. That does not explain it. That furnishes no ground of reason whatever. If it were true, it would justify the occupation of a portion of the bottom in any place in the seas, irrespective of the question whether there was a natural advantage or not; and such right to occupy the bottom certainly does not exist. Nor caii you occupy the bottom of the sea. It is not susceptible of occupation, unless the law should choose to de- clare that it should be deemed to be the subject of exclusive oc- cupation; and as I have already, I think, sufficiently shown, the law will not do that merely to gratify the whim or the ambition of any particular individual, or any particular nation, but only for the accomplishment of some great social good. ■■ OK Mn. CARTER. 327 [. Tlio ani- ycar hi-ced- 5 when the y should be )nal rcgula- try. Tliere [)rk. Now, lir, it is not created this ^'ou will not id you will t doing any arc these you spoke e. :'sland that surely not. y the regu- •e is a right ural advan- ; by means r to adopt n the cases d the coral !r they are. of a partic- iprovc that itablishes a ns of other lo be made pends upon 1 it. That 10, it would ly place in s a natural n certainly sea. It is oose to de- clusive 00- shown, the imbition of ut only for That right of creating a national industry based ur-on pecu- liar natural advantages, and based sometimes upon the mere cir- cumstance that it has been created by rules and regulations, is one that is fully established, in reference to many of several dilferent products of the sea. In the protecting of industries of that sort, does the nation extend its juridiciion over those places? Does it make them a part of its territory? Certainly not. It has no right to do that. It is not consistent with the law of nations thai it should do that. There is no occasion for it to do that. There is no need of it. All that it is necessary for it to do is to enforce such regulations on those places as are elTective and sufficient to protect the right from in- vasion by the citizens of other nations. Now let me bring the case of the seal fisheries on the Pribilof Islands before the attention of the Tribunal, and compare them with the doctrine thus established. What natural advantage have the United States, the owners of those islands? One of the high- est; and an advantage, indeed, not at the bottom of the sea, but an advantage on the dry land above the sea, which is within their ad- mitted jurisdiction. By the creation and carrying on of this indus- try there, they have established a business profitable to them- selves, highly useful lo the whole world. Shall they not be able to protect it from invasion? If the coral beds can be protected from invasion far out at sea, if the pearl beds can protected from invasion by municipal regulations operative upon the sea, why should not this fishery be protected in, the like way? It requires no greater exercise of authority. It requires no straining whatev- er of the ordinary rules which govern the conduct of nations in respect to their interests. It is a more illustrative instance, by far, than the case of the coral beds, or the pearl beds, or the oyster beds ; a more illustrative instance for the application of the principle that the nation may protect the industry which has thus been created. To make it entirely analogous, if 'hese seals were in some manner attached to the bottom, if they v.ere in the habit of con- gregating at some particular place on thj bottom of the sea, then, according to the doctrine which seems Co iie made the foundation of the right by our friends on the other side, the United States would have a right to go out and take possession of that bottom, incorporate it into its own territory, and treat it as a part of its own nationality. I am sure we assert no such right as that. We do not ask to go to any such length as that. All we ask is the right to carry on the industry on our own admitted soil, and to protect it from being broken up by repressing acts upon the high seas which are in themselves essential wrongs. 328 ORAL AlKilJ.MKNT Let mo (lofend tlicso pailinilnr inslances of tlio coral bods, the pearl bods, and (lie oyslor bods upon Ibo sanio principles upon which 1 have defended the assertion of properly interest, not only in the seals, but in the seal industry upon the Pribilof Islands. In all these eases, llien- is a peculiar ualural advantage connected with those places and belonging h) the nations which lie in nearest proximity to the places where they are situated. In the next place, they are exhaustible. There is not enough for all ; and there- tore there arises an occasion when you may assert th<^ principles which g(.vern the laws of property. In the next place, if left open to the unregulated invasion of the citizens of all nations, they would be used up and destroyed. The only condition upon which they can be preserved and made benehcial to mankind is that they be allowed to be worked and operated by the particular power which has the best facilities for that purpose. In the next place, they can be preserved only by putting them under a system of re- gulation, which shall be operative upon the citizens of that as well as of other nations. It is necessary that the citizens of the partic- ular pow<.>r, whose citizens go out there and improve and occupy these places, shouhl be also made subject to these regulations. In other words, the general condition is presented that mankind may have the benelit of these advantages if they arc disposed of in this way, and not otherwise; and, consequently, they ought lo be disposed of in this way. The bottom of the sea in these places is not made the property of the particular powers who assert the right to the industries. It is not their property at all. It is not within their sovereign jurisdiction at all, any more than any other part of the high seas, but it is a theatre where their defen- sive regulations may be put in operation, and where the rights of their citizens may be defended. Let me support these views by a reference to the opinions of the best writers. I read from Putfendorf on the Law of Nature and Nations. The extract is found on page 134 of my argument : As for fishinp, tlioiigh it hath mucli more abundant subject in the sea than in lai isiiolliinpsiif)stantiaI almul if. Such lliinKsaicnol llic suhj(>tl oldisciission. Wlion if is said that a mail or a naliori has ((Mfain ri^'hfs (if property, it means that they have some rights whieli ran he enl'orced in some manner. Unw sliiill Ihey enloice fheiii? Thiif is the (|uesli(m. What acts may the I iiiled Slates do? (Jan they extend tiieir sovereignty over the seas loan illimitable extent wherever it may ho necessary fi» proleel the right? No; they cannot. NVe make no assertion of that sort. Wecoiildnol substantiate it, if we did. The sovereign juriscondiction of a nation, is hounded by her territory, with an ad- dition which carries, to a certain (|uulilicd extent, her sovereignty over a distance on the seas commonly taken as three miles. Beyond that the sovereign jurisdiction of the nation cannot he ex- tended. Beyond that her laws, as laws, have no force or opera- tion. IJeyond that, her powers as a legislative power have no ef- fect. The emanations of her legislative power do not extend as exercises of legislative power beyond her territorial jurisdiction. All that we faKe to be admitted. Sip Charles Russell. You mean as against those who are not subjects or citizens? Mr. Carter. Yes ; against those who are not subjects or citi- zens. That is what I mean. If her legislative power extended over the sea. she would have a right, of course, to legislate for everybody mat came within the limits of that legislative power. We make no such pretension as that. This supreme legislative jurisdiction must be bounded necessarily by some line, and that line is, for the boundary of her absolute legislative jurisdiction, Iii,'?h-waler mark. It does not go beyond that, although she may extend it, for most purposes, over a further space which is com- monly taken to be— I do not mean to say it is absolutely limited to that, but is commonly taken to be— a disumco of three miles ; but even there her legislative power is not absolute, for she cannot exclude the passage of foreign vessels over her waters. She can- not, as she can do with regard to her territory, exclude foreigners from it. Over the land she has an absolute power of exclusion; but over these territorial waters, although she may generally extend her legislative power, she cannot extend it so far as to exclude foreign ships from them. Her right to protect her prop- erty or industry is not derived from her legislative power. Where do you get it then? How does she acquire any right to protect it? She has a right to protect it, just as any individual has a right to protect his property, where there are no other means, that is, by force; not by the exercise of legislative power, but by the exercise of executive power — an exercise of natural power — by an exercise of what you may call force. Individuals can defend ntial about it. it is snid tliut I means that omc manner. Uion. What r sovereignty he necessary i> assertion of lio sovereign y, with an ad- r sovereignty three miles. !annot he ex- rce or opera- !r have no ef- lol extend as jurisdiction. who are not ijocts or citi- ver extended higislate for ative power. le legislative ne, and that jurisdiction, igh she may hich is com- dy limited to !e miles; but !• she cannot s. She can- le foreigners )f exclusion; ly generally so far as to 3ct her prop- itive power, any right to [dividual has ther means, )wer, but by I'al power — Is can defend OF MB. CARTFR. 831 their rights and property by the employment of force to a ^-erlain extent. If a man attacks me, I may resist him and subdue him and use violence upon him for that [)urpose; and I may go as far as it is necessary for that purpos(> ; not farther. WhatevcM' forces it is necessary to emjdoy to defend myself, 1 may employ against him. So if a man comes upon my properly, I may remove him, if I have to carry him live miles; and i may employ as much force as is necessary for the purpose of removing him from my pro[)erty; but I cannot employ any more force than is necessary. Those rights of sell-d(>fence and seIf-|)rotection survive to individual man even in civil society, but we may not go any farther than strict necessitv. For the general protection of rights, members of a civil municij/al society must appeal to society itself. They appeal to its courts for protection. They a|)peal to the judicial power, and that furnishes a remedy. What can nations do? Is there any court to which they can appeal? No; they cannot make any such appeal as that. There is no tribunal into which one nation can summon another nation for judgment. What can nations do? They can only use this same sort of self- defensive power that an individual does. That is all. That they can us(( under all circumstance, limited, however, by the same rules and by the same bouiularies which limit it in the case of an individual — necessity. Whatever isnecessary to be done by a na- tion for the protection of its rights, it may do, and it may do it as an individual, and it is no exertion of its legislative power at all. We may make that very plain and palpable by turning to ad- mitted instances of the exercise of it, and take for that purpose what arc co.amonly called belligerent rights. Here is a nation engaged in war. It blockades the enemy's ports. The ship of a neutral nation, friendly to both parties, undertakes to enter that blockaded port, and the belligerent that has established the blockade captures her by an exercise of force, carries her into one of his own ports, and confiscates her, and selh her. What kind of an exercise of power is that? Not legislative power, certainly. That act was committed on the high seas, and outside of the juris- diction of any power. It therefore was not legislative power. It did not operate to extend the jurisdiction of the nation over the place. It was simply an act of reasonable and necessary force employed for the purposes of self-defence. The nation had the right to carry on the war. Its existence, perhaps, depended upon its ability to subdue its adversary. It could not carry on the war successfully unless it had the right of shutting up the ports of the enemy, and, therefore, the necessary purposes of self-defence gave it the liberty to seize the ship of another power, carry it into port, and condemn it. P\ ;j| ,f*' 332 OHAL ARGUMENT i . 1' ^V I- ', t II 1 ; i i\ That is not legislative power. It was not exerted by .easoh of any extension of the sovereignty of the nation over tiie seas. It was simply an exercise of self-defensive power, standing upon the principle of neceRsity and limited by the principle of necessity. Wherever the necessity exists that power exists. I instance the case of blockade. There arc other instances of belligerent rights. The President. You would not admit of that power in tTmcs of peace? Mr. Carter. That is another question. Whether you may exercise a power of that sort in time of peace is a question to which I shall presently come. What I am explaining now is the charac- ter of the act. It is not legislativf ; that is certain. It is an act of self-defensive power. There are other instances of it ii. the case of belligerent rights. Take contraband of war. A belligerent can capture a vessel that is carrying contraband of war, upon any of the high seas. You can enter even the territory of a friendly state, if it i'-. necessary for the purpose of protecting your- self against your adversary; and even when there is no condition of war. They had a rebellion in Canada some years ago, and a vessel was fitted out by persons making use of the soil of the Uni- ted States for the purpose of aiding the rebellion, as it was called. A British military force crossed the Niagara River, captured that vessel in the territory of the IV.aed States — not on the high seas, but in the territory of the Tiiited States. Senator Morgan. You refer to the Caroline? Mr. Carter. I refer to the case of the Caroline. There was a conllict between Great Britain and the United States upon Ihe point as to whether Great Britain had the right to do that; but the conllict was not upon the point of principle at all, it being admitted on both sides that if there war, a necessity for doing that act (ireat Britain was right in doing it; that if there was a well-grounded apprehension that that vessel was going to proceed across the river and cjigage in enterprises hostile lo the authority of Great Britain in Canada, she whs justified in doing that. A ".elebrated instance in history was the seizure by Great Brit- ain oi the Danish tleet in the harbor of Copenhagen. There was a fleet of a friendly power. There was absolute peace between Great Britain and Denmark ; but Great Britain was apprehensive that that fleet would fall into the possession of ^>ance, and the seizure was defended by her ablest statesmen on the ground of necessity. This necessity of nations, when it appears, must have its way; and the inconvenience, the trouole, the damage, the loss which individual citizens of another nation may occasionally suffer in consequence of these exertions of self-defensive authority, are not to be taken into account. ; r' r ;• ^U^. ^ '«4riHS^^^5i;;,i iM^'.m'^^^:.€ ■n 4 T led by .oasoh of or tlio seas. It irulingupon tlie le of necessity. I instance the inherent rights, power in times ithcr you may lestion to which w is the charac- It is an act of 3f it iii the case A bclligeront of war, upon territory of a rotecting your- is no condition ears ago, and a soil of the Uni- ts it Avas called. •, captured that 11 the high seas, There was a tates upon the o that; but the being admitted ;■ that act (ireat well-grounded eed across the lority of Great by Great Brit- n. There was peace between 5 apprehensive ance, and the the ground of irs, must have mage, the loss isionally sulfer thority, are not Wk:- OF MR. CARTER. 333 The President. Do you not think that all of that lakes us out of this sphere of law and right? Mr. Carter. Not at all. We are right within the sphere of law and right. The President. I do not think the whole world generally con- siders it so. Mr. Carter. We arc right within the sphere of law; and i,h3 exercise of these acts of self-defensive auihorily — - lh(> extent to which they may go, the necessities which create them, hoAv far the necessities extend — constitue a great chapter in international law, and are all dealt with, all their limitations defined, and the principle "-hich governs thorn laid down. WliMlis said upon the other side. They agree luat all these things may be done. What do they say? Well, they say that they cannot be done in time of peace, — that you cannot defend yourself by the exercise of force on the high seas in lime of peace. Where, I should like to know, is such doctrine as that laid down? 1 hope my learned friends will find some authority for those positions. 1 have never been able to find such authority. The assertion is that a nation cannot defend itself by an act of necessary force in time of peace — a thing that an individual may do in civil society, a nation cannot do; and cannot do when there is no other means of protecting itself. Of course it must be instantly perceived that if this power of defending yourself and your property from injury against iiie citizens of other nations, is something which a nation cannot do in time of peace — if that is true — the assertion that you have ferny rights at all is mere empty sound. A right that canr-jt be defended amounts to nothing, i would like to have those who assert that a nation can- not defend itself and its propevfv in time of peace by acts of neces- sary self-defence, tell me how they can defend them. 1 hope they will be able to tell me. If a nation cannot defend its admitted and conccided rights in that way, I hope th(>y will be able to point out some way in which those rights can be defended and protected But there is no truth in the assertion that the exercise by a nation of the right of self-defence, by the employment of acts of necessary force, is confined to times of war. There is no sub- stance in that. It exists in time of peace just as well. When'^ver the necessity arises, the right arises, whether it be in time of war or time of peace. It may arise in peace just as much as in war. In point of fact the principal occasions, and the most frefjuent occasions, for the exercise of this right' occur in times of v.ar, and, therefore, the instances in which they are performed .^nd ihe rules which govern their exercise are found in belligerent o^n ditions far more than in conditions of peace. The absence cf sssixsm S34 ORAL AH<;UMENT the occasion is the reason why we find less discussion of these rights in lime of peace, and a want of rules for reguhiting them; but nevertheh>ss the occasion may arise, and when it does arise, then the power must he put in force. Now, let me call the attention of the Tribunal to occasions when it does arise in times of peace, in Uie lirst place, let me allude to those municipal regulations which are devised by dilferent states for the purpose of protecting their revenue. I before remarked that the protection of the revenue of a nation could not well he elleclive unless the conduct of vessels could be taken notice of at a greater distance than three miles from the land. If a vessel intending a breach of the revenue laws of a nation had the power to approach its shores to a distance of three miles from the land, and there wail a favorable opportunity to slip in, it might at all limes evade its revenue laws, and, conse- quently, I suppose most nations — certainly Great Britain anJ the United Stales — Great Britain from a very early periotl and the United States almost from the period of her independence — have enacted laws prohibiting vessels from transshipping goods or hovering at a distance much greater than that of three miles — three or four leagues from the shore being the limit which I think is employed. What is the penalty which they denounce for that purpose? The penally is capture and confiscation. Does that penalty, and the enforcement of tliat penalty involve an extention of jurisdiction out to that limit of three or four leagues? Certainly not. It is an act of self-defence. It is an executive act, designed to protect the revenue interests of the country. So also in the case of colonial trade, a similar device was formerly adopted for the purpose of preventing the approach of vessels in the neighborhood of the colonies of another country, for the pur- pose of engaging in illicit trade with such colonies. In order to enforce such prohibitions, it was necessary that regulations should be adopted prohibiting vessels from hovering off the coasts. Consequently, if a vessel appeared off the coast and did what \yas called " hover ", that is not proceed upon her voyage, but wait there apparently for a favorable time to run in, she sub- jected herself to the penalty of those laws, and may be confiscated and captured. I think no nation has ever resisted the enactment or enforcement of those laws. The President. I do not think you are quite right about that. Mr. Carter. So far as I am aware. There may have been cases whore tin y were enforced under exceedingly unreasonable condi- tions; but i do not myself remember them. The President. I believe cases of that sort have given rise to mS9M H sion of these ulating thorn ; il does arise, to occasions place, let me i devised hy r revenue. I e of a nation ssels could he iles from the uc laws of a ancc of three pporlunily to , and, conse- t Britain and y period and ependence — pinggoods or iree miles — imit which I ley denounce lation. Does ' involve an I'our leagues ? jxecutive act, try. So also k^as formerly of vessels in , for the pur- In order to regulalions ring olf tlie oast and did I her voyage, in, she suh- e confiscated 10 enactment right about ve been cases nable condi- given rise to OF MR. CAHTEH, 33S international communication, between nations. It may ho that they liave led to agreements. Mr. Carter. Of course, 1 will not be at all certain that such has not been the case. My acquiantance with Ihom, I confess, has been derived mainly from the treatment of them that we lind in hooks of international law ; and when they are treated by writers of intor- nalional law, they are treated as reasonable exercisesof the power of self-defence, not ohjecled tobynafions, unlessthey wore attemp- ted to be enforced under very unreasonable circumstances. To illustrate them, I must again refer to a decisi(m which 1 have allu- ded to once before. This was the case where a vessel was seized in time of peace outside the three-mile limit for a violation of a regulation such as I have alluded to. Ills the case of Church i'. llubhai't. (^(Iranch U. S. Sup. Court Reports, p. 189). I read from the opinion of Mr. Chief Justice Marshall on page 181 of my argument : That, tho law of nations prohibits the exercise of any act of authority over a vessel il) the situation of the Auroni and tliat tiie seizure is, on tliat account, a mere maritime trespass, not within the exception, cannot he admitted. To reason from the extent of the protection a nation will afford to forei^jners, to the extent of the means il may use for its own security, does not seem to be perfecUy correct. It is opposed by principles which are universally acknowl- edged. The authority of a nation within its own territory is absolute and ex- clusive. The ssizur'- of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is iteduty repel. But its power to secure itself from injury may certainly be exercised to beyond the limits of its territory. Upon this principle the right of a belligereht to search a neutral vessel on the high seas for contraband of war is universally admitted, because the belligerent has aright to prevent the injury done to himself by the assistance intended for his enemy. So, too, a nation has a right to prohibit any com- merce with its colonies. Any attempt to violate the laws made to protect this right is an injury to itself which it may prevent and it has a rinht to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which i-cmain Ihe same at all times and in all situations. If they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submilted to. In different seas and on different coasts, a wider or more cool racted range in which to exercise the vigilance of the government will be assented to. Thus in the Channel, where a very great part of the commerce to and from all the north of Kurope passes through a very narrow sea, the seizure of vessels on sus|iicion of aKenipting an illicit Irade must necessarily be restricted to very narrow limits; hut on the coast of. South .\merica, seldom frequented by vessels but for the purpose of illicit ti'ade, the vigilance of the government may be extended somewha' further, and foreign nalions submit to such regulations as are reasonable in themselves aiul are really necessary to secure lliat monop- oly of colonial commerce, which is claimed by all nations holding distant possessions. '>'a«ii-:wi^iiM4:st in the industry which it maintains upon the islands. That is the e.vtent of our assertion. If the I'nited Slates cannot protect its property in that way, how is it possible for it lo protect it at all. My argument assumes, of course, that I have been successful in showing that the United vStates ha\e a properly interest in Ihese seals wherever they are, and, upon the high seas, as well as upon the land ; or, if not that, that they have a properly interest in the industry which they carry on at the Pribilof Islands, which they are entitled to protect. The practice of pelagic sealing, we have shown, is destructive of both. The United States cruiser finds a v(!ssel actually engaged in destroying these seals, the property of the United States. She warns her off — commands her to desist from the Irespassin which she is engaged. Suppose the vessel refuses, what is to be done then? Is she to allow her lo proceed in the execution of her tres- pass, stay by her, foll(»w her into some port, and ther(\ in the name of the United Slates, seek redress in the (municipal tribunals? Is she driven lo that? That, of course, would be wholly inef- fective, and if it were effective in any degree, or in any instance, it would require the entire Navy of the United Stales to carry it fully out. You would require a ship of war for every pelagic sealer. That, of course, is absolutely ineffective ; nor does it comport with the dignity of a nation. No nation has ever yet deigned, in the defence and protection of its rights upon the high seas, to wail until it could resort lo the municipal tribunal of some power and there seek lo obtain such justice as might be afforded. One other resort might be suggested. It might be said that the Government of the United States might make the conduct of these Canadian pelagic sealers under such circumstances the sub- ject of complaint to Great Britain herself. What should it say to Great Britain? Ask her to prohibit this conduct? How could Great Britain prohibit it? Only by employing a part of her fleet lo do it. Is it the business of one nation to furnish a force to protect the rights of another nation? Would not the prompt answer of Great Britain be under such circunslances : ''This is not our act; we do not adopt it; we agree that you have a property in these i fe ti nj» i Maiaa»)a ii i.(J"lJiiJ ' 1 r m ORAL AUr.lIMENT seals; \v(< do not (•((mniiuid, encounigo, or in any manner assist, tiic action ol' llii-;e pelagic sealers ; if they are trespassing upon the rights ot the Inited Slates, is that nation so leehle Ihal it cannot defend itself upon the high seas? " What answer could the United Slates make to such an in(|uiry as that? i\o; there is noway in which a nation can protect its rights upon the high seas other than hy the employinenl of force — force employed as an individual would employ it; force not d(!rived from any law whatever, hut force derived fi-om the fact Ihat the nation has a right upon which some one is engaged in committing a tres- pass, a trespass which the nation cannot prevent in any other way, except hy the employment of force. Those rights, frequently asserted in lime of war, are not so frequently asserted in time of peace, hut only hecause the necessity for it does not so frequently arise. But still they are asserted, and must he asserted, whenever a nation seeks to protect with efficiency her colonial trade from invasion, or her revenue laws against smuggling hy citizens of other naticms; and must he asserted whenever she wishes to en- force with efficiency in time of contagion her quarantine laws — whenever, indeed, a case arises in which the rights, or the prop- erty, of a nation may he endangered by the acts of citizens of other nations upon the high seas, whether in peace or war, there is occasion for the employment of force. Inasmuch as I wish to be precise upon this point, I have drawn up a series of propositions which embrace the views entertained and asserted by the (lovernment of the United States upon this particular subject. And they are these : First. The territory of a nation cimsists of the land within its dominion and what are commonly called its territorial waters, which embrace interior gulfs, or bays nearly enclosed by its terri- tory, but connected with the sea by narrow straits separated by headlands, and a narrow belt of the open sea along the shore, of the width, as commonly allowed, of three miles, or a cannon shot. Second. The exercise of the sovereign legislative power of the nation is limited to its territory as above described, except in spe- cial instances where, for reasons of necessity, a nation may exer- cise a limited legislative power over neighboring parts of the sea beyond the narrow belt above mentioned. Outside of the terri- tory of the nation its laws, as laws, have, except as above mentio- ned, no operation or elfect. The ships of a nation, however, are, even when on the high seas, deemed to be a part of its territory. Third. Nor can a nation, with the special exception above mentioned, take any action outside of its territory for the purpose of enforcing its laws, or punishing a breach of them. Us writs, or **^'***Mfcij._ anncr assist, iiii{:^upon Iho lull it cannot (I the United net its rif^lils "oi'ce — force (Ic rived from at the nation itting a tres- n any other ts, frequently ed in time of 30 frequently :'d, whenever il trade from •y citizens of vishes to en- rantine laws , or the prop- )f citizens of )r war, there I have drawn i entertained es upon this nd within its orial waters, II hy its terri- separated by the shore, of or a cannon power of the xcepl in spc- )n may exer- rts of the sea of the terri- bove mentio- lowever, are, its territory, eption above • the purpose its writs, or OF Mil. CAHTKH. .143 other processes, or orders of its courts, cannot ho lawfully execu- ted outside of its territory. lM)urlh. Two sovereign nations cannot exist together upon the same land. The sovereignly of one must necessarily yield to that the other. But all sovereign nations may co-exist upon the seas. They may go and be there as individual ix'rsons upon terms of absolute equality. In legal contemplation they are there whenever the interests which they are bound to defend, such as their ()n)perty, their citizens, or the property of their citizens, are there. Fifth. In the jusi defence of its existence, or its rights, a nation may employ, anywhere upon the high seas, against those whe attack its existence or rights, such force as nuiy be necessary and reasonable. This is a self-evident proposition ; for, inasniurli as a nation cannot prevent invnsions of its rights upon the high seas h\ legislation, and by judicial prm t'dings to enforce legisla- tion, it woubl be absolutely without iinans for protecting them, unless it had the power of necessary self-defence. Any suggestion that it might institute civil suits against trespassers in the munici- pal courts of other nations would be to no [)urpose. Such proceed- ings would be wholly inelfectiv e, and would, besides, not comport with the dignity of the nation. Sixth. The action of the officers and agents of a nation in exercising this right of necessary self-defence may, and should, be governed by rules and regulations, which may, according to the internal constitution of a nation, and the distribution of its powers, assume the form of executive instructions, or municipal laws, or rules. Neither are necessary to the exercise of the power. They serve to govern the exercise of the pow r which exists indepen- dently of them. In constitutional governments, where the sover- eign power is distrihuted among ditferent departments, such rules and regulations may be necessary. Other governni' its cannot insist upon them. Seventh. In the exercise of this power of self-defence the nation is responsible to other nations whose citizens may have suffered from its exercise. If a necessity is shown for its exercise, and the limitations of such necessity have been observed, the act is justified. If otherwise, a wrong has been committed and reparation must be made. Eighth. The capture by a belligerent nation of the vessels of of a neutral power when found carrying contraband of war or engaged in running a blocade are familiar instances of the exercise of this right of self-defence. The rules derived from the practice of nations governing the exercise of such right of captiu'e, with such other reasonable rules as the belligerent nation may prescribe. il «W««P*«^WW»" u. 344 on A I, AH(;UMENT arc logulalions dcsif^iuMl >o govern the condiul of the officers and agents of the helligerent and to prevent abnses of the right wliich would make the helligereni answerahlc to llie neutral nation whose ships havo l»een eaptured. The prize courts which administer lliesc rules, although pro- ceeding according to judicial methods, are not really courts administring justice hetween man and, man, like instance courts, but agencies for th(> purpose of informinj; the belligerent sovereign whether he ought to sustain a capture as regular and rightful, or admit it to be a wrong, for which reparation is to be made. (Hose »'. llinndy, opinion of Johnson, .)., 4 Cranch, 282.) Ninth. The notion that this right of self-defence is a purely belligerent right and cannot be exerted in lime of peace is unfounded. It proceeds upon the manifestly erroneous assump- tion that the rights of a nation upon the seas cannot be attacked or endangered except in time of war. That the instances calling for the exercise o\' the right in time of war are morc^ frequent, and that they are coniparativel\ rare in time of peace, is true; but that they may, and do, arise in time of peace is e([ually true. Tentii. If it were true that a nation could not exercise in time of peace any act of force to protect its rights, it would follow that a nation could not interfere! with a vessel under a diilerent flag which was hovering on her coast, outside of the three mile limit, with an openly avowed intention of evading the revenue laws of the nation; or interfere with a vessel hovering in like manner and at a like distance from the coast of a nation's colony with an openly avowed intention of engaging in illicit trade with such colony; or interfere with a foreign vessel hovering outside of the three mile limit on the coast of a penal colony with an avowed intention of running in at a favorable moment and rescuing convicts; nor, if this were true, could a nation prevent a foreign ship with an infectious disease on board from coming within a distance of four miles from a port, even though it was reasonably certain that the disease would thereby, and at that distance be communicated to its people. Such conclusions would be repugnant to reason, as well as to the actual practice of nations. Filleventh. The municipal laws or rules adopted by nations to govern the exercise of the right of self-defence are not always rigidly limited to a regulation of that right; but sometimes go fur- ther and seek to exercise a limited legislative power beyond the territorial limits of the nation. So far as they have the latter pur- pose in view they arc exceptional, and can be defended only upon grounds of special necessity. Rules and regulations providing for the seizure and condemna- tion of a vessel actually engaged in running a blockade would be a lll(> ol'HctM'S )t' llio light llie noulral hough pi'o- iilly courts incc courts, I sovorcign id rightful, o he made. 282.) is a pundy Df peace is us assump- bo attacivcd jccH calling I'quont, and 10 ; but that cisc in time on Id follow ■ a dillcnMit three mile he revenue ing- in like on's colony L trade with •ing outside ny with an loiuent and n prevent a cm coming 3ugh it was and at that sions would i of nations, y nations to not always mes go fur- beyond the B latter pur- Li only upon condemna- would be a OF MR. CARTKH. 345 mere regulation of the strict right of self-defence and bo ttpen to n(» objection; iuit if they went further and provided for the trial and punishment of the oflicers and crew, or for \\u\ seizure and con- demnation of vessels for pnst breaches of a blockade, they would transcend the necessities of self-defence and assume the character of legislation. The arrest, trial, and (•onvictii»n of |»(>rsons for acts done by them on the high seas assume the right of legislating for the high seas; and the same thing may be said of a law which sub- jects a vessel to seizure and condemnation, not for a preseul invi- sionof the rights of a nation, but for one which has been completed and is past. And so, also, it might be conleuded that a municipal law designed to prevent smuggling, or illicit trade, by prohibiting vessels from Covering within certain prescribed distances from the coast, transcended the re(iuirements of necessary self-defence and partook of the character of legislation. The actual practice of nations has been not to draw a rigid line between the two descriptions of power, but to sanction reasonable restrictions and prohibitions imposed by a nation, although partaking of the character of legis- lation, when they were fairly designed to secure the purposes only of a just self-defence. (Church vs Hubbart, 2 Crancli . 287 .). Twelfth. But it is not necessary fo- the Cloveruineni of the United States to insist, nor does it insist, upon a right to punish individual citizens of other nations who have been engaged in pelagic sealing as having been guilty of a crime, nor upon a right to seize and ccmdemn vessels for having in the past been guilty of pelagic sealing, nor upon a right to establish any area of I'xclusion around any part of its territory. It insists only that if it be deter- mined that it has a property' in the Alaskan seal herd, or a pro- perty interest in the industry which it maintains upon the IVibiloi" Islands, that it follows, as a necessary consequence, that it has the right to prevent the invasion and destruction of those [)roperty interests, or either of them, by pelagic sealing, by the employment of such force as is reasonably necessary to that end. Thirteenth. The Government of the United States conceives that, if its contention that it has the property interest above men- tioned, one or both, be (established, and a vessel fitted out for the purpose of pelagic sealing, under whatever ilag, should approach the neighborhood of the l»ribilof Islands and engage in the taking of seals at sea, it would have the right to prevent such taking of seals in the only manner in which it would be possible to prevent it, namely by the capture of the vessel; and that it can make no diflerence whether such vessel be three, or four, o'* more, miles from such islands; and that if such capture can be made anywhere within four miles of said islands, it may lawfully be made at any *l if ■««««*• ilh'kii 346 ORAL ARGUMKNT n. ; t !i ;^i:; distance from the islandi: where such right may be invaded, in the same manner. Fourtcentli. The United Str.'tes insist that it would have the right hist above mentioned w-ithout passing any municipal law, or adopting any municipal regulation, to secure it, or to govern its exercise; but it, at the same time, supposes that the passage of a law regulating ihe exercise of such right and providing for a mode of condemnation of vessels seized, would be entirely proper, and one of its reasonable duties. That it would serve the same just purposes as are answered by prize laws, namely, to give the citi- zens of ofher nations notice and warning of its intentions, regulate the conduct of seizing ofhcers, prevent injustice and oppression, and inform the government, and other governments, respecting the regularity of any seizure, to the end that, if rightful, it should be adopted by the United States, and acquiesced in by other gover- nments which might be interested; and, if otherwise, be repudiated and made the subject for just reparation. Fiftcerth. In respect to tho seizures actually made and decrees of condeuination thereon, the United States perceives no particular m whi( n they are irregular, unjust, or not defensible as an cxer- cice of the right of necessary self defence. It does not defend any sente.ice of line and imprisonment imposed upon any citizens of othei nations for engaging in pelagic scaling; but insists that any invalidity w ilh which such sentences may be atfected, has no ten- dency to impair the validity of a condemnation otherwise valid. Sixteenth. The fanuliar law of piracy illustrates and confirms the foregoing conclusions. The general consent of nations has sanctioned the practice of the arrest, trial, and sentence of pi- rates, even when they have not invaded any right of the nation so dealing wiHi ^hem, or its citizens, either of person or property. Pirates are evny where justiciable. This is an exceptional in- stance in which nations aie permitted to defend the general order, security, and peace of the seas. But it cannot be doubted that, irrespective of such general consent, and ht'd it never been given, any nation would have the right to defend one tf its own ships from capture by pirates, and, in tiic course of such defence, and as a part < i it, to capture the piratical vessel and condemn it by pro- ceedings in its own courts. Seventeenth. The Governmentof the United States, therefore, bases its claim to defend its property interest in the seal herd and in its industry maintained upon the l*ribilof Islands by such force exertetl u[)on the high seas as may be reasonably necessary to that end upon the followings ground:. : 1. The reason and necessity of the thing, there being no other means adequate to the defense of such rights. , . ■ ,v **>i4fc Invaded, in the -vould have the micipal law, or I' to govern its he passage of a ling for a mode ly prrper, and I tlie same just give the citi- ilions, regukite md oppression, nts, respecting htful, it should by other gover- ;, be repudiated ade and decrees es no particular ble as an cxer- not defend any any citizens of insists that any ed, has no ten- therwise valid, es and confirms of nations has sentence of pi- of the nation so Dn or property, exceptional in- B general order, >e doubted that, ver been given, f its own ships defence, and as lemn it by pro- tales, therefore, le seal herd and Is by such force lecessary to that ! being no other < OF MR. CARTER. 347 2. The practice and usage of nations which always employs this means of defence. Those, then, are the grounds upon which the United States asserts its right to the employment of reasonable force. If it has a property in the seals, that property is invaded whenever they are attacked by pelagic sealers, and that property interest in the seals themselves, and the necessity of defending it gives the United States the right to prevent that practice by the arrest and seizure of the guilty vessel. If it should be decided that it has not a prop- erty interest in the seals themselves, but has a property interest in the industry which it maintains upon the Pribilof islands — a rightful, lawful and useful industry — then its right to arrest the practice of pelagic sealing upon the sea does not depend upon a property interest in the seals but upon the fact that that practice is an essential tvroru/, an;* is, htsides, an invasion of the rightful industry which the United States carries on upon the land. To justify that act of pelagic scaling, it is necessary to show that it is in itself a right, and Jf that were shown, then the United States would have no right to interfere with it ; but if it is in itself a yjrong — if, upon the fundamental and immutable distinctions between right and wrong everywhere prevalent, upon the sea as well as upon the land, that act of destroying a useful race of animals is not defensible as a righ/, then, interfering as it does with the lawful rights and industry of the United States, they have the right to prevent it, and to prevent it by the employment of force. '- ' We have two grounds, therefore, upon which we assert the existence of this right to the employment of force : The hrst is, the reason and necessity of Ihc thing; because the declaration that we have a right involves the concession that there is some means of defending it. To say that a nation has a right which at the same time the citizens of every other nation may trample upon and M>late with impunity, is to commit a solecism. Such a thing as that would have none of the characteristics of a right. We defend it, in the next place, upon the practice and usage of nations. Wherever a nation is shown to have a right upon the high seas which is endangered by the wrongful acts of the citizens of other nations, there, according to the usage and practice of na- tions, at all times, in peace or in war, that right has been defended by the employment of reasonable force. Now. Mr/President, I have concluded my argument upon the question of the right to employ force upon the high seas. I must now contemplate the possibility that this Tribunal may decide either that the United States have no property in the seals, and no property interest in the industry carried on upon the Islands of mwiffKi^* 'Tt>wS?SF*tii^4^"*^:^-**^iteW*-:'\i^*»Wi^»!^^ 1* f!i!f:i IP ' 348 OHAL ARGUMENT which pelagic sealing is a wrongful invasion; or that, if they have those rights, or either of thorn, they still have no power to protect them by the sci/iire and condemnation of a vessel engaged in the practice of pelagic sealing. In either of those cases, the United States would have no power to [u'otect the seals from extermina- tion, and consequently, the subject would be left, to borrow the language of the Treaty, in .such a condition as to require this Tribunal to proceed to the consideration of the last matter which is submitted to it, namely, what regulations it is necessary to establish for the purpose of preserving the seals. Sir Charles Russell. I beg my friend's pardon for a moment. Mr. President, 1 wish to re-state the position which at an early part of these proceedings, we took upon the quoscion of the order of proceeding. We maintained, and maintain, that the questions of right raised in various forms, the first live questions of article VI, are distinct from, and are to be dealt with in argument, distinct from the question raised inarticie VII, which is the matter of regulations. I understand, iiowever, from my learned friend that it would be a convenient thing for him to be allowed to con- tinue his discussion and end his address to the Tribunal, and to cover in that address his views upon the question of regulations. I do not, therefore, ask any opinion from the Tribunal as to whether that course ought or ought not to be permitted. I inter- pose no obstacle; but I wish to intimate to the Tribunal that we do not recede from the position we took bore, and we shall re- spectfully claim the righf to present complete, by my learned friends and myself, our argument upon the question of right, and not mix u|) with that question of right the entirely separate and distinct (juestion embracing ditferent considerations which touch the matter of regulations. With fhat respectful representafion of our views to the Tribunal. 1 do not further interpose. The President. We thank you. Sir (Charles, for the vie\\-s which you take of the manner of proceeding. The Tribunal have agreed that they would allow the counsel of either parly to pro- ceed in their argument, according to their own convenience. We have merely asked the counsel in the proceeding here as much as they would deem it possible, to treat separately in two distinct pa>-ts of their arguuioid the legal questions which are enumerated in article,VI of the Tre /.and the question of regulations which is alluded to m article VII. This, I notice, \Ir. (barter is pre- pared to do. He has been dealing until now wila ihe legal ques- tions, and I think he is coming now to the points which are referred to in articl(> VII. Consequently that is quite according to what we ask you to do, and we are much obliged to you that you do it. The counsel for Great Britain asks for no opinion on ^«i*i.. OF MH. CAHTEK. 3W if they have or to protect j;aged in the 5, the Unifod 1 extormina- borrow the require this latter which necessary to • a moment. at an early of the order lie questions [uestions of n argument, s the matter irned friend wed to con- iinal, and to regulations, bunal as to ;d. I inter- mal that we we siiall re- my hnirned )f right, and eparate and viiich touch presentafion r the vie^v•s ihunal have arty to pro- ience. Wo as much as two distinct enumerated ins wliich is ter is pre- legal ques- which are :e according to you that opinion on the part of the Tribunal and consequently the counsel for Great Britain Avill be free to treat the matter according to their own con- venience, either separately in two distinct arguments, or else in the same way as Mr. Carter has dealt with it. I conceive that with the agreement of all parties Mr. Carter is free (o continue his argument as he intende'l. Mr. Justice Harlan. H' the President means to say for the Tri- bunal that there is a recognized right of counsel to make two arguments, first, «m the live questions named in article 6, and after that, at some future time, to claim a right to enter into a distinct argument as to regulations, I do not concur in that view. And I do not understand tlial the Tribunal have so decided. 1 do not think we need to retire to consider that. ' make these obser- vations so that it will not hereafter be said thai the right is reserv- ed to cut this argument in two and to have this Tribunal make an intimation as to our conclusions upon the hrst five points in article VI and thereby inform the public of our conclusions upon those points before we take up tho subject of regulations. I do not wish to be understood as concurring in that view. Lord Hanneu. That is a dilfereiit question. We have not expressed any opinion, or attempted to come to a conclusion upon that point otherwise than is indicated by Mr. Justice Harlan. I regret that there is a difference between us as to what was agreed upon ; but perhaps we can consider that at our adjournment. Mr. Justice Harlan. I do not uncerstand that there in any dilference between us as to what we ihave decided. We did agree that counsel should proceed in their argument as they should deem proper covering these questions. But 1 understood the President a moment or two ago to say that the Tribunal had decided, or were to be understood as having decided, that the couns(>l for the British Government could proceed with his argument on the main questions according to his own pleasure, and, at some future time, after an intimation of our opinion upon the first five points, make an argument upon the subject of regulations. I understood counsel at an early stage of our procedings to say that he would claim th ise rights. I only inter- vene now *o say that I have not understood that the Tribunal have decided any such thiufv, or Ihfi we have considered that matter. The President. I believe that the counsel for Great Britain do not now ask us to deliver any sort of opinion after they have treat- ed the legal points. I merely understood that they ask to be allowed thai several of them might speak and argue upon the legal points and, after that, resume the argument about the regulations. That is a mere matter of division of work between themselves. One of them will begin speaking about legal points ; another will -*«*!««itow*tjsst< iawr^^SakiiBi- .•«»«■« »i.->e»M«i«fc\,. ^mamm ■M It- U mm i k ; ! I ■ 3S0 OllAL AIKiUMENT continue ahout legal points and then afterwards resume the argu- ment with reference to the regulations. Sir Charles Russell. If I may with propriety interpose, there is no reason why I should not explicitly state what we mean. What we mean is this : That my lcarn(!d friends and myself pro- pose to submit a complete argument, dealing with one subject, and one subject only, distinct and separate in its character and to which legal considerations alone apply; that having presented that argument, unmixed and unconfused with any other on a different subject, we shall then, at what ever moment is convenient to the Tribunal, proceed, may be immediately, to discuss the ques- tion of regulations; but that we shall present two arguments sepa- rately. Lord Hannen. You will not call upon us to give a decision upon the live points before your argument upon the qneetion of regulations? Sir Charles Russell. No, my Lord, 1 have not suggested that at all. Lord Hannen. That is the only question upon which it is sup- posetl there is a difference between us, and that will, of course, disappear in view of your explanation. Sir Charles Russell. I ought to state, perhaps, that I men- tioned this to my learned friend, Mr. Phelps, as a course wbich might obviate the necessity of the Tribunal being called upon to make any decision upon a legal point as to which there might, or might not, be differences of opinion amongst the Tribunal; and I think my learned friend will say Iha', he recognised my suggestion as a reasonable one. Mr. Phelps. Yes; the course suggested by Sir Charles Russell will be quite acceptable to us. The only |)oint of difference at the outset was that suggested whether the Tribunal was called upon to express a decision, or an opinion, upon the previoi s points before hearing the argument in respect to the regulations; bu< as counsel on both sides understand it now, that claim will not be made ; and we do not object at all to the course of the argument proposed by my learned friend on the other side. Justice Harlan. Of course what I state shows that 1 made no criticism of that arrangement at all. I only understood the obser- vation of the President to go beyond that. That is why 1 made any remark. The President, t merely say that counsel for Great Britain will be free to argue their case as they like, and divide tbeir work between them«"Wes as they like. The Tribunal has agreed in leaving all liberty to counsel for either party to argue their case as they like, and the Tribunal not to make any decision until the It 3I{ ■-*»iAfc,:. imo the argii- torpose, there \t we mean, il myself pro- ^ subject, and and to which I'escnied that on a different onvenient to ss the (jues- :uments sepa- ve a decision le qnestion of Liggested that hich it is sup- ill, of course, , that I men- 'ourse which died upon to ;re might, or hunal; and I ly suggestion larles Russell fcronce at the ailed upon to points before u+ as counsel le made ; and ; proposed by lat I made no od the obser- 1 why I made jlreat Britain le their work as agreed in ue their case ;ion until the OF MH. CARTER. a;;i whole argument of the case has been gone through by botli parties. I think we have now come to an agreement and we are ready to have Mr. Carter proceed. Mr. Carter. The subject, Mr. President, which is now to engage ray attention is that which, in a certain contingency con- templated by the treaty, has reference to the fi-aming of regula- tions, to be concurred in by (ireat Britain, for the preservation of the seals. I think I hav(! already observed at sometime in the course of my argument that, however the two nations may have differed upon what may be called questions of right, and however wide their differences may have been upon those ([uestions, there is one point upon which they were agreed at the outset, and upon which Ihey have been at all times since apparently agreed, and upon which I hope they will continue to be agreed until the argu- ment of this controversy is disposed of; that is, the necessity upon all grounds and in the interest of all nations that this useful race of animals shall not be exterminated, but shall be preserved, and its benefits and blessings be made available perpetually for the use of mankind. It will be seen that the treaty itself possesses two principal aspects. One of them calls upon this Tribunal to deter- mine certain questions affecting assertions of right upon the part of the United States, which questions, were they decided in favor of the United States, would, or might, presumably, confer upon that nation the right to exercise this power of protection, and render any further consideration of the question of protection needless. The next feature of the treaty is that, if those (juestions should be determined adversely to the United States, so that it 'ould not have the power itself to take measures for the preser- i'.tion of the seals, then the Tribunal should consider what mea- s,»"es these two nations should take conjointly with each other to ihat end . There is, or may be a question as to the interpretation of arti- cle VII of the Treaty, which 1 will now read : If (hu determination of the foregoiuf; questions as to tlie exclusive juris- diction of tlie United States shall leave the suhject in such position that the concurreuce of Gi'eat Britain is necessary to the establishmenl of Hotiulations for the proper protection and proseavation of the fur-seal in, or liahitually resorlinj; to, the Rehrin^' Sea, the Arl)itrators shall then determine what con- current Uej^ulations outside the jurisdictional limits of tiie respective (iovorn- ments are necessary, and over what waters sucn HPgulatious shouhl extend, and to aid them in that detrrmination the report of a Joint Commission to be api)ointed by the respective Governments shall be laid before ihem, with such other evidence as either Government may submit. The Hif,'h Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Regulations. The language which is used in the beginnin^j of this article is 3S2 OHAL AUGUMENT '\U Sf ;t» " If the determination of the foregoing questions as to tiie exclusive jurisdiction of llie United States ". There arc five foregoing ques- tions and all the five seem to he embraced by that language. And yet when we look to the last of those live questions, we find it lo be, " lias the I'nited Slates any right, and if so, what right, of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit? " That does not appear, on its face, lo be question relating to the exclusive jurisdiction of the United Slates, and therefore it would not, on its face, appear to be j)ro- perly described by the language with which the seventh article begins. My own impression is that that fifth question is regarded by this seventh article of the treaty, as a question relating to the exclusive jurisdiction of the United Slates, using that word '' ju- risdiction " in the sense in which it is so oflen used, in the sense of power. In other words, the Ti'eaty regards the question, whe- ther the United States has any exclusive property interest in the seal herd, and an .xcirisive right to protect them upon the high seas, as a quesiion , f jurisdiction on the high seas, implying the wiew that if lh(: United States has the exclusive property in them, or a property in this industry which justiiies them in exercising a right (»f protection, that it has the exclusive right of protection upon the high seas, and that that is ])roperly enough styled a question of "jurisdiction ". I myself incline lo that interpreta- tion, but as I have already said in a former part of my argument, it is not necessary to go into any nice interpretation of the lan- guage in that particular; for whichever interpretation we adopt, the same result is practically reached. I say it is of no practical consequence which view is ado[)led. The same result will follow, whatever answer is given to this ques- tion of interpretation; for my argument, that the possession of that interest would not give the right to employ force to prevent pelagic sealing, then concur- rent regulations would become necessary. On the other hand, if the language referred to be laken to in- clude all of the live questions, the liflh question being regarded as one relating to jurisdiction in the sense in which that word is cm- ployed, the subject will bo left in such a condition that the concur- rence of Great Britain in regulations will be necessary, provided the Tribunal should be of opinion either that the United States had no property interest, or that such interest gave no right to employ force in its protection. Therefore I shall not engage in any further discussion of this question of interpretation. It is practically of no consequence. What shall be the retrulations for the preservation of the seals ? I must now assume the subject to t)e left in such a condition thai it is necessary that regulations of this character should be contriv- ed ? What are their requirements ? There are two qualihcations mentioned in the Treaty, and two only. In the first place, they musi be regulations operative outside of the jurisdictional limits of the two Governments. In other words, the field of their ope- ration ij to be on the high seas alone. That is one condition. The only other description that we have of them is, that they shall be such as are necessary for tJie preser- vation of the seals. Fitness for the accomplishment of that end is the on'.y reqairement, and that is an absolute requirement of these regulations. But right there I am met by some intir ations, in the Case and in the Argument on the part of Great Britain, that a some- what different interpretation may be set up, and that some limi- tations; will be sought to be imposed upon the regulations which may be recommended by this Tribunal. In the first place, that they must be regulations conditioned upon the consent of other na- tions than Great Britain and the United States, and not operative until the consent of the other powers shall be obtained. I am not exactly certain, but I gather from what is contained in the Case and Argument on the part of Great Britain, that that ground may be taken. It cannot be maintained. In the first place, it is not expressed in ihe Treaty. No such limitation is expressed there; and the omission to express it is in itself sigiiilicant, because the subject of the consent of other powers is mentioned, and there is an engagement at the close of the article, as follows : "The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other powers to such regula- tions". That language of itself excludes any implication that the operation of the regulations is to be conditioned upon the assent of 23 » .«. ^^ t -.£»»^ftti^feji*S^^as--^j^(:4*"' - - 3S4 ORAL ARGUMENT \ other power.s. It assumes that they are to be in operation ; and that it will bo a matter of utility, of convenience, that the assent of other powers shall he gained to them; and the parties engage to take all measures within their power to gain that assent. I say therefore, that not only is it not expressed in the treaty, that the regulations shall he thus conditional, but that we cannot imply it; and that the contrary is indeed suggested, if not absolu- tely required, by the terms of the article itself. Senator Morgan. Mr. Carter, if the award of this Tribunal is to be merely tentative and not binding upon the parties that have submitted this case to the decision of these Arbitrators, why are we sitting here? We are not diplomatists; we are not advising counsel or the particular friends of either Government. Mr. Carter. That is one view, and a very proper and impor- tant one, having the same tendency as the view that I am now sub- mitting to the Tribunal. Senator Morgan. I do not hesitate to say on my part that if this award is to be accepted by the respective governments, or rejected, at their pleasure, and is not to be an award in full force from the time it is recorded and delivered here, I will withdraw from this Tribunal. Mr. Carter. 1 do not understand that there is any suggestion from any quarter that the award of this Tribunal is to be accepted or rejected at the pleasure of the parlies; but it may be argued that this Tribunal may make the regulations which it suggests condi- tional for their operation upon the assent of other powers. It is that supposed position I am speaking" to. I am sure the ground is not taken that the award of this Tribunal may be accepted or rejciod at the pleasure of the parties. The contrary I have reason to know is conceded upon both sides and maintained on both sides. The President. Of course, Mr. Carter, when you speak of other powers, you mean other powers than Great Britain and the United States? Mr. Carter. Yes. There is further evidence derived from the correspondence which preceded the Treaty that it is subject to no such interpretation as that. After the Treaty had been reduced substantially to the form in which it now stands, but before it was signed by the parties, although its phraseology was understood to' be complete, a suggestion came from Lord Salisbury that the award of the Tribunal upon the subject of regulations should be made conditional upon the consent of other powers. That sugges- tion will be found at page 339 of volume I of the Appendix to the Cas.> of the United States in the note from Sir Julian Pauncefote to Mr. Blaine. He says : ■■**A^... ''^ipipi OF MR. CAirrER. m 'ation ; and that assent of other engage to take 1 in the treaty, hat we cannot if not absolu- his Tribunal is rties that have alors, why are e not advising int. )er and impor- I am now suh- ny part that if )vernments, or rd in full force will withdraw iny suggestion to be accepted be argued that uggesls condi- powers. It is 3 the ground is »e accepted or f I have reason on both sides. speak of other and the United rived from the s subject to no been reduced it before it was understood to bury that the ions should be That sugges- ppendix to the I Pauncefote to British Lkoation, Wmthinrilon, Niwemfjer S3, IS9I. Sm : I informod tlie Marquis of Salisbury ot our proposal lo sign llio toxt of llie seven articles to he inserted in llie nelirinp Sea Ari)ilralion af,'reetuent and of the Joint. Commission article, as settled in the diplomatic correspon- dence, in order to record the progress made up lo the present time in the negotiation. Loi.l Salisbury entirely approves of that proposal, but he has instructed me, before signing, to address auole to you for the purpose of obviating any doubts which might hereafter arise as lo the meaning and etfect of article 6, which is as follows : The Arbitrators will remember that the present article 7 stood originally as article 6. If the detern'inalion of Ihe foregoing questions as to the exclusive juris- diction of the United Slates shall leave Ihe subject in such position that the concurrence of Great Britain is necessary lo the establishment of regulations for the proper protection and the preservation of the fur-seal in or habitually resorting to the Behring Sea, the Arbitrators shall then determine what con- current regulations outside the jurisdictional limits of the i-espective govern- ments are necessary, and over what waters such regulations should extend; and, to aid them in that determination, the report of the joint commission to be appointed by the respective governments shall be laid before them, with such other evidence as either (iovernment may submit. The contracting powers furthermore agree to cooperate in securing the adhesion of other powers to such regulations. Lord Salisbury desires to make the following two reservations on the above article : _ i His lordship understands, first, that the necessity of any regulations is left to the Arbitrators, as well as the nature of those regulations, if the necessity is in their judgment proved; secondly, that the regulations will not become obligatory on Great Britain and the United States until they have been accep- ted by the other maritime powers. Otherwise, as his lordship observes, the two Governments would be simply handing over to others the right of extermi- nating the seals. I have no doubt that you will have no difficulty in concurring in the above reservations, and subject thereto I shall be prepared to sign the articles as proposed. I have, etc., Julian Pauncefote. A copy of that note was furnished to Mr. Blaine, and his answer is found on the following page, 340 : Department op State, Washington, November S7. 1891. Sm : In the early part of last week you furnistied the exact points which had been agreed upon for arbitration in the matter of the Behring Sea nego- tiation. You called later and corrected the language which introduced the }' it if -^BB" ^1^^SS9f^!l^f^- - ^r m m i iii mM tim»*: « »imm f «« i»») >' Ur » m m m OHAL AltnilMENT apreement. In fact, the two copies fianind were taken entirely from your minutes. It was done wilii a view that yuii and I should sign them, and thus authenticate the points for tiie Arhitralors to consider. You inform me now that Lord Salishiiiy asks lo make two reseivations in the sixth article. His (irsl reservation is tliat " tiie necessity of any rej^ula- tion is left to the Arhitralors, as well as the nature of those regulations if the necessity is in their judj^ment proved. " What reason has Lord Salisbury for altering the text of the article to which he had af:!reed? It is to be presumed that if ref,'ulati(ins are needed Ihey will be made. If they are not needed the arbitrators will not make them. The agreement leaves the aibilrators free upon that point. The first reser- vation, therefore, has no special meaning. The second reservation which Lord Salisbury makes is that " the regula- tions shall not become obligatory on (Ireat Uritain and the United Stales until they have been accepted by the other maritime powers." Does Lord Salisbury mean that the United States and Creat Britain shall refrain from taking seals until every maritime power joins in the regulations? Or does he mean that sealing shall be resumed the 1st of May next and that we shall proceed as before the Arbitration until the regulations, have been accepted by the other " maritime powers? " " Maritime powers " may mean one thing or another. Lord Salisbury did not say the principi/? maritime powers. France, Spain, Portugal, Italy, Aus- tria, Turkey, Hussia, (iermany, Sweden, Holland, Belgium, are all maritime powers in the sense that they maintain a navy, great or small. In like man- ner, Brazil, the Argentine Confederation, Chile, Peru, Mexico, and Japan are maritime powers. It would re(|uire a long time, three years at least, to get the assent of all these powers. .Mr. Bayard, of the 19th of August, 1887, addressed Great Britain, Germany, France, Russia, Sweden and Norway, and Japan with a view to securing some regulations in regard to the seal in BehringSea. France, Japan, and Russia replied with languid indilFerence. Great Britain never replied in writing. Germany did not reply at all. Sweden and Norway said the matter was of no interest to them. Thus it will be again. Such a proposition will postpone the matter indefinitely. The President regards Lord Salisbury's second reservation, therefore, as a material change in the terms of the arbitration agreed upon by this Govern- ment; and he instructs me to say that he does not feel willing to take it into consideration. He adheres to every point of agreement which has been made between the two powers, according to the text which you furnished. He will regret if Lord Salisbury shall insist on a substantially new agreement. He sees no objection to submitting the agreement to the principal maritime powers for their assent, but he can not agree that Great Britain and the United States shall make their adjustment dependent on the action of third parties who have no direct interest in the seal fisheries, or that the settlement shall be postponed until those third parties see lit to act. I have, etc., J.\MGS G. Blaine. Lord Salisbury was not quite satisfied with that answer; and another letter, or others letters, were written in reference to it, and responses more or less to the same eirect were made on the part of Mr. Blaine, namely, that the President could not assent to any such alteration of the treaty ; and in view of that unwillingness on the part of the United vStates, Lord Salisbury withdrew his request and ^^ii. OF MR. CAniER. 357 rely from your them, and thus resorv.'itions in of any rcgula- ! regulations if article to which le nfuded they lot make them. The first reser- it " the regula- iti'd States unlil l.urd Salisbury om taliing seals 5 he mean that hall proceed as ed by the other •d Salisbury did Ijal, Italy, Aus- ■e all maritime . In like man- , and Japan are at least, to get !■ August, 1887, id Norway, and to the seal in d indilFerence. at all. Sweden it will be again. , therefore, as a )y this Govern- to take it into has been made lished. He will agreement. He cipal maritime 1 and the United of third parties settlement shall r-AINE. answer; and mce to it, and )n the part of it to any such igness on the s request and adopted the text of the treaty as it stood, and, I think 1 may say, adopted the views of Mr. Bluine in reieronoo [o it. Tliat acceptance of llic treaty as it stood will be found on page 345 in the note of Sir Julian to Mr. Blaine : British Lkciation, Washinr/ton, Decemher /7, tS9l . Sin : I have the honor to inform you that I conveyed to the Marquis of Salisbury by telegram thesubslanco of your note of the lUh instant respecting the sixth article of the proposed Heliriu^' Sea Arbitration agreement, and that 1 have received a reply from his lordship in the following sense : Lord Salisbury is afraid that, owing to the dificulties incident to telegraphic communications, he has been im[>erl'ectly understood by the President. He consented, at the President's request, to defer for the present all further dis- cussion as to what course the two (Jovernments should follow in the event of the regulations prescribed by the Aibitrators being evaded by a change of flag. It was necessary that in doing so he should guard himself against the supposition that by such consent he had narrowed the rights of the contending parties or of the Arbitrators under the agreement. Hut in the communication which was embodied in my note of the Uth instant, his lordship made no reservation, as the President seems to think, nor was any such word used. A reservation would not be valid unless assent ed to by the other side, and no su(;h assent was asked for. Lord Salisbury entirely agrees with the President in his objection to any point being submit- ted to the Arbitrators which is not embraced in the agreement; and, in conclu- sion, his lordship authorizes me to sign the articles of the Arbitration agree- ment, as proposed, at the close of your note under reply, whenever you may be willing to do so. I have, etc., Julian Pauncefote. Of course that puts that question at rest. Sir Charles Russell . The view of the Government of Great Britain, and the point which we intend to support is in the letter of the nth of December, 1891. Mr. Carter. Would you like to have that read ? Sir Charles Russell. Yes, if you kindly would. It is in the second paragraph on page 344. Mr. Carter. The letter is short. It is from Sir Julian to Mr. Blaine : British Leqation, Wasfiinglon, December, tl, 1891, SiH : I have the honor to inform you that I telegraphed to the Marquis of Salisbury the substance of your note of yesterday respecting the sixth article of the proposed Behring Sea Arbitration asrreement, and that I have received a reply from his lordship to the following effect: In view of the strong opinion of the President, reiterated in your note of yesterday, that the danger appre- hended by Lord Salisbury, and explained in my note of the 8th instant, is too remote to Justify the delay which might be incurred by guarding against it now, his lordship will yield to the President's appeal and not press for further discussion at this stage. i ■^ Ik M IMAGE TEST T/ l.( I.I \.2t PhotogK ScieiK CorpoD «■ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 — 6" M 1.8 1.4 il.6 Photographic Sciences Corporation ,\ ^\^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 % V <^ ^ N? \\ ^ 338 ORAL ARGUMENT Her Majesty's Government of course retain the riglit of raising the poiut when the question of framing tiie regulations comes before the Arbitrators, and it is understood that tlie latter will have full discretion in the matter, and may attach such conditions to the regulations as tiiey may a priori judge to be necessary and just to the two power's, in view of the difficulty pointed out. With the above observations Lord Salisbury has authorized me to sign the text of the seven articles and of the Joint Commission article referred to in my note of the 23d ultimo, and it will give me much pleasure to wait upon you at the State Department for that purpose at any lime you may appoint. I have, ftc, Julian Pauncefote. Mr. Justice Harlan. Will you read the letter which is below that, which is in reply to the note of the tUh. Mr. Carter. Yes. This is the letter of Mr. Blaine to Sir Julian. Departemrnt of State, Washincjton, December f 4 , 1891. Sir : I have the honor to advise you that I submitted your note of the Hth instant to the Pri:sident. After mature deliberation lie has instructed me to say that he objects to Lord Salisbury's making any reservation, at all, and that he can not yield to him the right to appeal to the Arbitrators to decide any point not embraced in the articles of Arbitration. The President does not admit that Lord Salisbury can reserve the right in any way to atfect the decision of the Arbitrators. We understand that the Arbitration is to proceed on the seven points which are contained in the articles which you and I cer- tify were the very points agreed upon by the two Governments. For Lord Salisbury to claim the right to submit this new point to the Arbi- trators is to entirely change the Arbitration. The President might in like manner submit several questions to the Arbitrators, and thus enlarge the subject to such an extent that it would not be the same arbitration to which we have agreed. The President claims the right to have the seven points arbi- trated and respectfully insists that Lord Salisbury shall not change their mean- ing in any particular. The matters to be arbitrated must be distinctly understood before the Arbitrators are chosen. And after an arbitration is agreed to neither of the parties can enlarge or contract its scope. 1 am prepared now, as 1 have been heretofore, to sign the articles of agree- ment without any reservation whatever, and for that purpose I shall be glad to have you call at the Slate Uepartement on Wednesday the 16th instant, at {{ o'clock a m. I have, etc., James G. Blaine. The President. Mr. Garter, how would you construe the seven points that was referred to in this letter? Mr. Carter. Do you mean this phrase, " The President claims the right to have the seven i)oints arbitrated", etc. The President. Yes. 1 suppose it means the; tivc regulations and the joint commission article. Mr. Carter. Yes. ^1^ ■■ Jw "iniPiiMiiP" OF MR. CAIITER. 339 The President. You have no particular construction of that? There were six articles in the original treaty. Mr. Phelps. The seventh is the question of damages. Mr. Carter. Yos; the seventh is the question of damages. The letters 1 have read seem to put this matter at rest; for the letter of Sir Julian of December 17th acquiesces in the view of Mr. Blaine, in his letter of the 14th, which I have just read. It was evidently regarded by both sides that this seventh article of the treaty, upon its face, upon a just interpretation of the language embraced by it, did not contemplate that the regulationsshould be conditioned upon the acquiescence of other powers. It was upon that assumption that Lord Salisbury wished to have an understanding tacked on to it to the effect that they should be so conditioned. That was refused. Hb then wished to reserve the right to argue before the Arbitrators that the regulations should be so conditioned. Even that is objected to; and the treaty is eventually signed upon the assumption, agreed to by both sides, that it must be executed according to its language, without any addition or any reservation or any right other than what appears upon the face of it. If it were a question whether it was expe- dient that the regulations should be conditioned upon the assent of other powers, it should be promptly decided in the negative. Such a condition would be fatal to the main object. Every one must see the possibility — the probability even — that some power might be induced to withhold its assent; and even if no country should finally withhold its assent, how long would it take before the assent of all was obtained? We know the delays incident to diplomatic negotiations; and there would be no good reason to suppose that this universal assent could be obtained in less than three or five years; and in that time the seals would be gone. Therefore, any regulations upon the subject of preserving the seals which will have any efficiency to that end must be regula- tions immediately operative so far as the two Governments are concerned. And practically no difficulty will arise if that view is acted upon. If pelagic sealing is prohibited by Great Britain and the United States, no vessel under either of their flags can make its appearance upon the seas for that purpose; and I venture to say that no other nation in the world, after regulations of that char- acter framed by a Tribunal such as this, would allow its flag to be used for any such purpose. The public sentiment of mankind, authoritatively declared, by a tribunal of this character, composed of representatives selected from different nations, would be every- where respected. There is no good reason to suppose that there would be an attempt to violate it from any quarter; and if there a' ^60 ORAL ARGUMENT were any, il would bo one which could be, upon very firm grounds resisted, and (he violations would not be frequently repeated. So I t'onclude that there is no such limitation to be put upon the regulations which are to be recommended by tlie Arbitrators. There is another point in which it is intimated in the Argument on the part of Great Britain that these regulations should be limited. That is that the treaty shouhl be so interpreted as to mean that whatever regulations are recommended by the Tribunal shall be api)licable to Behring Sea only, and not to the North Pacilic Ocean. I do not know whether Uiat will be persisted in. It may be. The ground suggested is that the whole subject o( original controversy was the authority which the United States claimed il could exercise in Bohring Sea; that it did not claim that it had the right to exercise jurisdiction any where else, and that, the whole subject of controversy being 'thus confined to Behring Sea, the scope of the regulations should be in like man- ner limited, and should not pass those boundaries. I have to say that construction cannot be maintained. There is no such view as that to be gathered from the face of the treaty itself; indeed, upon the face of the treaty itself, that view is rather to be rejected! The language seems to be rather industriously framed to exclude such a view as that. The regulations which are described arc not to be regulations operative //* Behring Sea, but the Arbi- trators are to determine what concurrent [regulations outside the jurisdictional limits of the respective Governments are necessary, and over what ivaters such regulations should extend. The whole question of the extent of the waters over which they were to go is left to the Arbitrators without any limitation whatever. This interpretation, therefore, if it is to be accepted at all, must be accepted upon the ground that there is some implication which required it. But arc we to imply a limitation of that sort? Such a limitation would be inconsistent with the avowed purpose of both parties from the beginning of this controversy. This plan of regulating pelagic sealing through the instrumentality of an Arbi- tration was originally the suggestion of Great Britain ; and it was, at the beginning, coupled with a statement of the importance of the preservation of this race of seals— the importance, not only to Great Britain, or to the United States, but to mankind. That was the ground upon which it was originally placed by Sir Julian Paun- cefote; and at every stage of this controversy, it has been the avowal of those who represented Great Britain that it was her supreme desire that this race of seals should be preserved and its extermination prevented. It would be, as it seems to me, an imputation upon the sincerity of Great Britain to say that her real intention was to extend this protection only in Behring Sea, and that if OF MR. CARTER. 361 the fact should appear that the race wouhi be exterminated unless protection were extended to them in the North Pacilic Ocean as well, (Iroat Britain would, under those circumstances, he willing to see thai the seals should be exterminated. Can it be imputed to Great Britain that she intended to preserve this race of seals only in case it could be preserved by regulations operative upon Behring Sea ? What did'erence does it make where the regulations should be operative? If the important point be that the seals should be preserved for the benelit of mankind, th^n they sliould preserved by regulations extending over any seas where Great Brit- ain and the United States can make Iheni operative; and of course they can give them operation all over the world so far as they themselves are concerned. The President. Outside the territorial waters. Mr. Carter. Yes. Of course not in the territorial waters, not in the three-milo limit. That is a limitation ; but oufside of those territorial waters. If it turns out, in point of fact, that regulations operative upon the North Pacific arc necessary, I say, it would be •> imputing to Great Britain a piece of insincerity to say that she did not intend, or did not desire, to have the race of fur-seals preserved in such a case as thai. If she is sincere in her intention to pre- serve the race of seals, she must desire that they shall be preser- ved by regulations which will be efficient to that end, whether they are operative in Behring Sea alone, or whether they are ope- rative in the North Pacific as well. But that there was any such notion as that entertained by the parties to the treaty is entirely inconsistent with their views as expressed in the diplomatic correspondence. I refer to the draft convention submitted by Sir Julian Pauncefote, which will be found in Volume I, United States Appendix, page 311. The fifth article of that is as follows : A commission of four experts (tliat is, a commission of experts should be appointed). Two nominated by each Government, and a chairman nominated by the arbilrators, if appointed, and, if not, by the aforesaid commission, shall exam- ine and I'eport on the following question: What international arranpements, if any, between Great Britain and the United States and Russia or any other power, are necessary for the purpose of preserving the fur-seal race in the northern Pacific Ocean from extermination? That is the first suggestion of a commission of experts — of a Tribunal, to contrive measures for the preservation of the fur- seals. It comes from Great Britain, and the suggestion is not of measures confined to Behring Sea at all, but of measures operative upon the North Pacific Ocean as well, and designed to protect not only the seals belonging to the Pribilof Islands, but the seals of Russia 1 362 ORAL ARGUMENT also. It is a suggestion of a scheme for the protection of the fur- seal all over the North Pacific Ocean. And Sir .lulian Pauncefote also, at a later period, in a letter written on the Hth of June, 1891, when the negotiations in relation to the Treaty were in progress, and had nearly been brought to a conclusion, says— I read from the third paragraph on page 31S: Nevertheless, in view of the urgency of the case, his Lordship — (His Lordship, of course, is Lord Salisbury.) is disposed to authorize me to sii;n the ngreement in the precise terms formulated in your note of June 9, provided the question of a joint commis- sion he not left in doubt and that your Government will give an assurance in some form that tlie will concur in a reference to a joint commission to ascer- taui what permanent measures are necessary for tiie preservation of the fur- seal species in the Northern Pacific Ocean. There again the Government of Great Britain is pressing the Government of the United States to assent to its idea of the consti- tution of a commission for the purpose of making inquiries as to what protective regulations shall he necessary to preserve the race of seals in the North Pacific Ocean, no matter where they belong. Mr. Wharton's answer to this was written the same day : Department op State, Washington, June It, f 89 1. Sui : I have the honor to acknowledge the receipt of your note of today's date, and in reply I am directed by the President to say that the Government of the United States, recognizing the fact that full and adequate measures for the protectujn of seal life sliould embrace the whole of Behring Sea and por- tions of the Norlli Pacific Ocean, will have no hesitancy in agreeing, in con- nection with Her Majesty's Government, to the appointment of a joint commis- sion to ascertain what permanent measures are necessary for the preservation of the seal species in the waters referred to. such an agreement to be signed simultaneously with the convention for arbitration, and to be without preju- dice to the questions to be submitted to the arbitrators. There is the first direct and explicit assent of the United States given to the project of the constitution of a joint commission for the purpose of ascertaining what regulations are necessary ; and that assent contains the express statement that the measures were supposed to be necessary operative not only in Behring Sea, but in the North Pacific. On the loth of January, 1893, which was after the articles of the Treaty had been drawn up and signed — I am now reading from the Beport of the British Commissioners, page 7. It was signed by the parties in December. • mmi OF MR. GARTER. 363 The President. 1 think not. " Ratilication advised by Senate March 2yth : ratilied by tiio President April 22nd : and ratifica- tions exchanged May 7th. " Mr. Justice Harlan. Mr. Carter means that the formal arti- cles which went into the Treaty, and the articles about the Com- mission were signed the 18th of December. Mr. Carter. The two agreements signed by the diplomatic representatives of the party, namely, the agreement for the arbi- tration, and the agreement for the appointment of the joint Com- mission, were signed December 18th, and you will remember that the Commissioners were actually appointed before the Treaty was finally ratified. Lord Salisbury on the ISth of January, 1892, addresses a letter of instructions to the British Commis- sioners. I read from about the middb of that letter. It is the second enclosure referred to in the preliminary part of the re- port : You will observe that it is intended that the Report of the Joint Commis- sioners shall embrace recommendations as to all measures that should be adopted for the preservation of seal life. For this purpose, it will be neces- sary 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 the two countries will, of course, be mailer for the consideration of the respective Governments, while the Regu- lations affecting waters outside the territorial limits will have to be considered under clause 6 of the Arbitration Agreement in the event of a decision being given by the Arbitrators against the claim of exclusive jurisdictio.' put forward on behalf of the United States. The Report is to be presented in the first instance to the two Governments for their consideration, and is subsequently to be laid by those Governments before the Arbitrators to assist them in determining the more restricted question as to what, if any, Regulations are essential for the protection of the fur-bearing seals outside the territorial jurisdiction of the two countries. Senator Morgan. Mr. Carter, have you that clause 6 before you? Mr. Carter. Of the Treaty? Senator Morgan. No ; it does not say the Treaty, as I under- stand. It is one of those agreements. 1 wanted to know whether clause 6 mentioned in that letter was identical with clause 7 of the Treaty? Mr. Carter. Oh yes ; it was substantially identical with the clause mentioned in the Treaty. Senator Morgan. Is it known at whose instance that sixth clause was made article VII of the Treaty? Mr. Carter. When they came to put the agreement for the ar- bitration and the agreement for the appointment of the joint com- 364 ORAL ARGUMENT mission into one documenl, which is the Trealy. then it became necessary to make that change. The consolidation of the two instruments mad.! that change necessary, as I suppose. Mr. Foster. The lirst live questions are in article VI .^f the Treaty, and the regulations, foHowing, became article VII. The President, (jieneral Foster, perhaps you can tell us. There was a remodeling of the Treaty after this 18th of December, I suppose? Mr. Foster. When the negotiators came to complete the Trea- ty, they consolidated these two agreements; and in numbering the articles, the lirst live questions became article VI of the Treaty, and the agreement concerning regulations, following, became ar- ticle VII of the Trealy. It was simply an enumeration of the articles of the Treaty, and that had become Article Vll. The President. That was after December 18th? Mr. Foster. Yes. The President. But there was no substantial change in the text? Mr. Foster. There was no change whatever in the language, simply a change in the numbering of the articles. Mr. Carter. 1 have read from documents showing what the interpretation of Great Britain was in this particular. I now call attention to a document showing the interpretation of the United States, and that is in the appointment of the Commissioners under the Treaty, on page 3 H of the Case of the United Slates. The Com- missioners there refer to the letter of the Secretary of State appointing them : Sin : In your letter of July 10, 1891, received by us in San Francisco on the 16lh, after referring to the diplomatic controversy pending between United Slates and Great Hritain in respect to tiie killing ot fur-seals by British sub- jects and vessels, to the causes which led up to this controversy, and to some of the propositions which had at that date been mutually af,'reed upon, you ir-form us that the President has been pleased to appoint us to proceed to the Pribilof Islands and to make certain investigations of the facts relative to seal life with a view to ascertaining what permanent measures are necessary for the preservation of the fur-seal in Behring Sea and the North Pacific Ocean. [lue Tribunal here took a recess.] [On reassembling, Mr. Carter resumed his argument.] Mr. Carter. Another evidence, Mr. President, tending to show that in the contemplation of the Treaty the regulations were not to be limited to Behring Sea, is found in the change of form of the sixth question. As originally proposed it was in this language; I read from page 286 of the Appendix to the first volume of the Uni- ted States Case : II 'rf-f«»>-n-iTf^riTfc iMiin Wif"i1iin'miT»WiBi>i^6a. . 1^, OF MR. CARTER. 385 There Sixth. If the determination of the foref,'oinR questions shall leave the sub- ject in such position that the concurrence of Great Hritain is necessary in prescribing regulations for the killing of the fur seal in any jiarl of the waters of Hehring Sea, then it shall be further detcrniidetl, etc., elc. You will observe there that the language of the regulation here proposed is : " killing of the fur-seals in any part of the waters of Behring Sea", giving some ground for a suggestion that the llegula- tions were to be confined to Behring Sea; but, after the correspond- ence which I have referred to, and in which it was indicated upon both sides that there was a necessity that the Regulations should extend outside Behring Sea, or that there might be a necessity for an extension outside of that Sea, the form of this Article was chang- ed; and on page 319 of the same volume will be found the state- ment of it in its changed form as adopted in the Note from Mr. Wharton to Sir Julian Pauneefote (quoting) : (6) If the determination of the foregoing questions as to the exclusive juris- diction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the eslablisliment of regulations for the proper protection and the preservation of the fur seal in, or habitually resorting to, the Behring Sea, the arbitrators shall then determine, etc., etc. The words, " or habitually resorting to, " are now introduced indicating that the protection was to be extend-^d to the seals resorting to Behring Sea, wherever it might be necessary that those Regulations should be operative ; and that was the form in which it was adopted. Now, in order to show that the Regulations ought not to be limi- ted to Behring Sea, but that they should be extended to the North Pacific, I point to the Report of the British Commissioners. They think they should be operative on the Pacific Ocean and not confin- ed to Behring Sea. The suggestion upon pelagic sealing which they themselves present in their Report and which is made part of the British Case is that it is necessary that the prohibitions shall apply not only to Behring Sea, but to the waters of the Pacific itself. And, touching that necessity, 1 may further allude to a letter addressed by a Mr. C. Hawkins to the Marquis of Salisbury on the i9th of April, 1891 — volume 3, Appendix to the British Case, United States, No, 3 (1892), page 5. Mr. Hawkins says : In consequence of the negotiations being carried on between the United State's Government and our own to bringabout a satisfactory settlement of the Behring'sSea Seal Fishery question, I beg to offer you the following facts, trusting they may be useful to you as emanating from one with a practical knowledge extending over a period of eighteen years. I also inclose herewith a cutting from the " Daily Chronicle " of the above date, which induces me to take this liberty, supposing the statement therein detailed to be correct. ;iiH! V 366 OUAF. Anr.IJMF^NT Since nbonl tlip year ISft.'i wo liavo roceivetl in this country lar^e numl)ers of sealskins known in the liaile as norlti-wt-st coast skins, ihc same having been taken in the (ipen sea, and, from appearances liiat are unmistakable to the initiated, are exclusively the skins of female seals pre^,'nanl; these are all shot, and I have heeii informed that for every skin recovered five or six are lost IhroiiKh sinking when slriK^k by the shot'; this wholesale slau^'hter of the females will, in a short time, bring about the extermination of the seal in that district if not arrested. That lottor was reforrod by Lord Salishury to the Canadian Govonimont, and a Report was mado to the Privy Council of that Governmont, which is found on page 7fj of the same part of tlie Brilisli Appendix (reading) : Itcpurt of a CommUtee of the Honourable the Privy Council, approved bxf his Exci'llencif the Governor-General in Council on the ilth June, 1891 . The Committee of the Piivy Council have had under consideration certain papers from the Colonial Office on the subject of the seal fishery in Hehrins's The Minister of Marine and Fisheries, to whom the matter was referred, observes that Mr. Hawkins states" since about the year 1883 we have received in this country (tlngland) lar^'e numbers of seal-skins, known in the trade as the north-west coast skins, the same having been taken in the open sea, and, from appearances that are unmistakable to the initiated, are exclusively the skins of female seals pregnant; these are all shot, and I have been informed that for every skin recovered five or six are lost through sinking when struck by the shot... " Two paragraphs further down the Report proceeds (reading again) : The Minister submits that the testimony produced by Mr. Hawkins in this connection is quite in accord with the information hitherto obtained, and is most valuable in support of the contention of Cana^'a. It has been previously pointed out that although great stress had been p ced by the United States' Government on the alleged necessity for prohibiting pelagic sealing in the Behnngs Sea, yet no attempt had ever been made by that Government for an arrangement to curtail similar operations along the coast previous to the entry of seals into that sea. In an attempt to vindicate the methods of the lessees of the seal islands Mr. Hawkins proceeds : " We, on the other hand, during my experience have had annually large numbers of seal-skins from Alaska, and also from the Copper Islands, which are killed by being clubbed on land, and are selected with judgement, being the skins of young male seals : the older fighting or breeding males are spared. " This is another presentation of the case of the United States' Government for the prohibiting of every other character of sealing but that adopted bv the lessees, so frequently combated by your Excellency's advisers. While the Minister of Marine and Fisheries does not deem it necessary to dwell at any length upon the point, he would, in passing, invite attention to the fact that notwithstanding this statement, the United States' Treasury agenis now assert the contrary, and the Governmen of the United States appear to be acting on the Reports of their Agents. OK MR. CAniER. 307 Omitting llie next pairngraph, I (luoto ngain : The Minister siihniits lliat whiUcvcr si^iiilloanco Mi'. Hawkins' slatonifint niny have upon the abstract question of the |iroloction of seal life in the Pacific waters, it can have l)ut little, if any, on the controversy between Great Uritain and the United States, as the evil enm|ilaineil of, even if as jireat as alleged, occurs outside the disputed area, as he himself implies in his reference to the " north-west coast skins." Thorcforc, itappcars from this Canadian cvidonccr thata danger, and a principal danger to tho seals, lies outside Beliring Sea, and in the North Pacilic. Now, I read to the same elVect passages from the Report of tlie British Commission which 1 liavo just referred to, page 22, section 138 (quoting) : If certain months should be discussed as a close time for sealinik' at sea, it becomes imporlant to inquire which part of the sefron is most injurious to seal life in proportion to the number of skins secured, and lo tiiis inquiry there can be hut the one reply, that the most deslrnctive part of tiie pelagic catch is that of the spring, during which time it includes » ''""sideiable pro- portion of gravid females, then commencing to tiavel on Ihei' "ay north to bring forth their young. It is on similar grounds and at coriv;. ponding sea- sons that protection is usually accorded to animals of any kiiid, and, apart from the fact that these seals are killed upon the high as, tin same arg'i - nients apply to this as to other cases. That iu, (resents the most destructive part of the pt' [mc catch, ^'■' be in the spring, when gravid females are takt;ii on their way north to the Islands. On page 23, section 145, the same Commis- sionners say : From the foregoing review of the various facts and circumstances of seal life in the North Pacific, the following may be stated tc be the governing conditions of proper protection and preservation : — («.) The facts show that some such protection is eminently desirable, es- pecially in view of further expansions of the sealing industry. (6.) The domestic protection heretofore given to the fur-seal on the breed- ing islands has at no time been wholly satisfactory, either in conception or in execution, and many of its methods have now become obsolete. (c.) Measures of protection to be elTei'tive must include boMi the summer and winter homes, and the whole migration-ranges of the fur-seal, and control every place and all methods wuere or by which seals are taken or destroyed. Again, at section 155 and subdivision of that section, which is to be found on page 25 : A close season to be provided, extending from the loth September to the 1st May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing-vessel shall enter Behring Sea before the ist July in each year. So that we see that not only is there no ground for an interpre- i'! i rHii'; i iW»t « a'iM aii to'irii i yf^f'''^ti''"TirT'r^^ ''■"■■•'vr"'" '• ■ - ■ — -:v-^'-;-nri-"'— ■■■'--'■- i '- IHOMI 368 ORAI- ARGUMENT lalion of ihe Treaty limiting the Regulations to Behring Sea, but we have it fully recognized on the part of Great Britain that ne- cessity requires such regulations in the North Pacific as well as in Behring Sea. Having treated of the limitations sought to he imposed upon the Tribunal in respect to the contriving of Regulations for the pre- servation of the seals. 1 come to the real problem. What is the problem before this body? It is to contrive such Regulations as are necessary for the preservation of the fur-seals. Wliatever is necessary to that end must be recommended, not matter what it is, or where it is operative, or what, otherwise, may be its effect? Whatever measures are necessary must be adopted. It is not to be supposed that all taking of seals is to be prohibited, for that would be to deprive mankind of the benefit of the animal. We must as- sume that the benefit is to be secured, and the taking be so regu- lated as to prevent extermination. Now the solution of that prob- lem requires a study of the nature and habits of the animal, the methods by which it is pursued and captured, the perils to which it is exposed, and the means which may best be adopted to protect it against those perils. These are the things to be considered. But these are the very things which were taken into consideration in the inquiry into the question of property. It is the sanie question as the one I discussed in considering whether the United Stales had a property in the seals ; and the conclusion was that it was necessary for the purpose of securing to mankind the benefit of the animal, and at the same time preserving the species, to award to the United States, which bad a situation and a territory giving it a natural control over the animal, the benefits of the right of property. It is the same problem now; it is the same problena which human society has been engaged upon from the dawn of civilization to the present day. How can the benefit of animals useful to man be se- cured, without destroying the stock? That, I say, is a problem upon which society had been engaged for centuries, and the solu- tion has, in every instance been, to award the rights of property to those who had such a control over the animals as enabled them to secure and supply for the uses of mankind the annual increase while at the same lime preserving the stock. How else, can the problem be solved ? How can you preserve to mankind a race of domestic animals, unless you award property to those who have such a control over them that they can destroy them ? The United States have such a control over the fur-seal. He comes upon their soil ; he remains there live or six months of the year ; he subjects himself voluntarily lo their power, so that they can destroy him at once. How can you preserve that race except by inducing the na- tion having this control, and this power of destruction to withhold ■1 .ja»atji|9wafl*w^T a > i«w tt' > * » »* v% **'* y '* ^ OF MR. CARTER. 369 iring Soa, but ■itain that nc- j as well as in mposed upon ns for the pre- What is the {egulations as Whatever is tier what it is, be its effect? [. It is not to for that would We must as- ng be so regu- 1 of that prob- le animal, the Is to which it is d to protect it isidered. But nsideration in same question United States is that it was ; benefit of the «s, to award to iory giving it a ht of property, which human ilization to the I to man be se- , is a problem , and the solu- of property to cabled them to anual increase w else, can the nkind a race of lose who have I? The United mesupon their iir ; he subjects destroy him at iducing the na- ion to withhold ] the exorcise of that power. And how can you induce men to withhold the exercise of such a power except by awarding them the bcnelits of the right of property ? If you will allow to thom the reward of their abstinence; if you will induce them to exorcise care, industry and self-denial, by assigning to those qualities their appropriate reward, then you can preserve the race. Other- wise, that preservation would be impossible. Therefore, I say that the problem of contriving Regulations is the same as that which arises in considering the question of property. But the question of property is deemed, for the purposes of our present argument to be decided adversely to the United Slates. That, however, does not change the nature of the problem at all. If the United States have no property right which will enable them to preserve the , animal, you must have Regulations agreed on by all Governments. You must permit the United States to take the increase of the ani- mal and prevent, by Regulations, all other nations from interfering with the animal at all. There is no other way. You musi con- trive Regulations which will bring about the same results as would flow from the institution of property. Senator Morgan. Do you regard the words " protection " and " preservation " in the seventh Article of the Treaty as being strictly synonymous ? Mr. Carter. " Proper protection and preservation ". I think those two words are, if not absolutely synonymous, very nearly so. They were employed in order to more fully to cover the notion that these seals were to be preserved by being protected. We cannot, in this inquiry, lose sight for an instant of what the laws of nature are : they are the very object of our inquiry, These seals are subject to the operation of the laws of nature. Their in- crease and their decrease follow those laws with a rigid obedience; and in order to contrive measures which a, ill insure the preserva- tion of these animals we must study and ascertain these laws, and, having ascertained them, implicitly obey them. They cannot be tampered with. Any violation of them inevitably brings the con- sequences attached to such violation. Now here, in my view, we reach what is really the end of legitimate debate upon this subject. Any further argument must proceed upon rhe assumption that there is some sort of doubt as to whether the pursuit of seals on the high seas by the methods of pelagic sealing is destructive or not. I have answered that ques- tion. There is not — there cannot be — any reasonable doubt of that. It is not possible to take females in the way and to the extent in which they are taken in pelagic sealing without bringing about the swift destruction of the seals on the land were prohibited. species, even if all taking of There are two things beyond 24 I I ^ ^ ' ,*l 'wtsyawtw 370 ORAL ARGUMENT dispulc : first, that the young and non-breodlng males may be taken up to a certain point without diminishing the birth-rate ; and. consequently, without diminishing the stock; and, secondly' that tlie taking of any female must diminish the birth-rate pro tanto. This conclusion does not depend upon scientific knowledge, but upon common information. Suppose that sheep could not be reared except in four places in the world, and that the entire de- mand of the world had to be satisfied by the product which could be obtained from those four places. Could any breeding ewe ever be properly killed under such circumstances ? Why, very plainly, no ! Every one must be preserved, and the demand would make it profitable (o preserve every one of them, just as it is in the case of the seals. If you kill a single female seal you must inevitably diminish the product, not only by that one, but, in addition, by the number of young that that female would bring forth. Of course, as sheep can be produced everywhere and the market be glutted with them, it is perfectly proper to kill ewes when the pro- duction exceeds the demand. But this condition of things never occurs in the case of seals, for the demand is always out of pro- portion U) the supply, being so large that there is an enormous profit on each seal. Now, what is the attitude of the United States with reference to this matter of Regulations? Simply that it can propose no Regu- lation save one; and that is an absolute prohibition upon the kill- ing of seals anywhere upon the seas, restricting the killing entire- ly to the Islands where the rate of increase can be ascertained, whore the superfluous males can be taken and killed and thus de- voted to the commerce of the world without diminishing the stock. Such a Regulation is necessary, absolutely necessary, in its en- tirety. If we were to propose any regulation at all which would permit pelagic sealing in any degree, it would be such a one as this — that pelagic sealing should be limited to the winter months, when scalers cannot put to sea on account of the stormy and bois- terous weather, and when the seals canitot be found. Such a Reg'ilation might be satisfactory enough. It would, theoretically, tolerate pelagic sealing, but it would, in reality, be a prohibition of the jMirsuit; and it is best to say at once that the prohibition shoald be made absolute, and that pelagic sealing should not be indulged in at all, in any form, at any time, under any circumstances. We are. therefore, able to present no other scheme; but, per- haps. 1 ought, out of courtesy to the other side and to the British Commissioners, to consider Avhat has been proposed. And I sup- pose we may say that if it is possible to retain pelagic sealing in any degr(>e. without endangering the existence of the herd — these British Commissionners can find it out and present it. They «■ 1 OF Mil. CARTER. have nitade a profound study of the subject, and if the problem is capable of any solution which will preserve pelagic sealing at all, they must have found it out. And if they have discovered none, we may con^^lude that none is possible, and, therefore, I propose to see what their scheme is. I have cited it at page 201 of the Argu- ment of the United States. It is as follows : loi). In view of the actual condition of seal life as it presents itself to us at the present time we believe that the requisite def.'rce of protection would be afforded by the applicutiou of the following specidc limitations at shore and at sea : (a) The maximum number of seals to be taken on the Pribilof Islands to be llxed at E>0,000. (6) A zone of protected waters to be established, extending to a distance of 20 nautical mill's from Ihe islands. (c) A close season to he provided, extending from the liith September to the 1st May in each year, during which all killing of seals shall be prohibited, with the additional provision that no sealing vessel shall enter Behring Sea before the 1st July in each year. li>G. Respecting the compensatory feature of such specific regulations, it is believed that a just scale of ecjuivalency as between shore and scsa sealing would he found, and a complete check established against any undue diminu- tion of seals, by adopting the following as a unit of compensatory regulation : For each decrease of 10,000 in the number fixed for killing on the islands, an increase of 10 nautical miles to be given to the width of protected waters about the islands. The minimimi number to be fixed for killing on the islands to be 10,000, corresponding to a maximum width of protected waters of ()0 nautical miles. I.'i7. The above regulations represent measures at sea and ashore suffi- ciently eijuivalent for all practical purposes, and probably embody or provide for regulations as applied to sealing on the high seas as stringent as would be admitted by any maritime power, whether directly or only potentially interested. There is the scheme. Its features are these : first, a limita- tion of the killing on the ishinds to 50,000 seals; second, a pro- tected zone of 20 nautical miles around the islands at all times, with a provision for increasing that protection by an increase of 10 miles for every reduction of 10,000 which might be made in the number of seals killed on the islands. That is to say, if the number to be killed on the islands was reduced from 50,000 to 40,000 then the protected area would be 'Ad miles; if the number killed were reduced to 30,000, then the area would be 40 miles; if reduced to 20,000, then the area would be 30 miles; if reduced to 10,000 then the area would be extended to 60 miles in diameter; and if killing should be absolntdy prohibited on the islands, you might have a protected area of 70 miles in diameter! The British Commissioners do not say that. They say the minimum limit of killing on the Islands should be 10,000; then they propose ( a close season extending from the 15t'. of September to the 1st j % 'I ■ 1 mm :n2 ORAL ARGUMENT r of >[ay in each year, during which all killing of seals in Behring Soa or any where elso shall bo pn.hihitcd ; and a prohibition against entering Behring Sea before the 1st of July. Now, I have several observations to make on that scheme. The first is that it begins by a restriction of the killing of seals on the islands from 100,000 to 50,000. But that, these Arbitrators have no power to do. The regulations they are permitted to frame must be operative oul